Zahtjevi u pogledu predugovornog informiranja
Pitanje: Zaboravio sam pružiti predugovorne informacije potencijalnom kupcu u mojoj trgovini. Što mogu napraviti?
Trgovci su zakonski obvezni predočiti predugovorne informacije potencijalnim kupcima. Postoji 8 ključnih informacija koje trebate jasno predočiti potrošačima prije sklapanja ugovora o prodaji robe ili pružanju usluga s vama u vašoj trgovini. Međutim, ako su informacije već očigledne iz konteksta, trgovac ne treba brinuti o ovih 8 informacija.
Različite su posljedice ako ne ispunite zahtjeve u pogledu predugovornog informiranja. Prije svega riskirate razočarati vaše kupce i riskirate povredu vašeg ugleda. Nadalje, samo pravo utvrđuje neke od bitnih neposrednih posljedica ako zahtjevi u pogledu predugovornog informiranja nisu ispunjeni. Najvažnije je da riskirate plaćanje novčanih kazni temeljem nacionalnog prava za vaše kršenje Direktive o zaštiti potrošača.
Različite su posljedice ako ne ispunite zahtjeve u pogledu predugovornog informiranja. Prije svega riskirate razočarati vaše kupce i riskirate povredu vašeg ugleda. Nadalje, samo pravo utvrđuje neke od bitnih neposrednih posljedica ako zahtjvei u pogledu predugovornog informiranja nisu ispunjeni. Najvažnije je da riskirate plaćanje novčanih kazni temeljem nacionalnog prava za vaše kršenje Direktive o zaštiti potrošača.
Pitanje: Ovisno o broju komada mog proizvoda (npr. knjige) kojeg kupac naruči, poštanske naknade se mijenjaju, te je teško izračunati njihovu konačnu cijenu unaprijed. Što mogu napraviti?
Kupac mora imati točne predugovorne informacije. Ukupna cijena roba i usluga koje nudite mora biti jasna. To znači da cijena mora biti potpuna, tj. mora uključivati sve primjenjive poreze, dodatne troškove prijevoza, isporuke i poštanskih naknada. Ako cijenu nije moguće unaprijed izračunati, potrošaču morate prikazati način na koji će cijena biti izračunata.
Pitanje: Na svojoj internetskoj stranici u ponudi imam robu. Kada uključim sve obvezne zakonske informacije počinje izgledati poput popisa i izgleda grozno. Što mogu napraviti?
Ova se situacija odnosi na sklapanje takozvanog "ugovora sklopljenog na daljinu" za kojeg su svi zahtjevi u pogledu predugovornog informiranja u potpunosti usklađene u EU-u. Uvijek ćete morati poštivati 8 ključnih zahtjeva u pogledu predugovornog informiranja, ali ćete morati pružiti i dodatne informacije.
Dobar način kako udovoljiti pravilima je korištenje skupa simbola kako bi ilustrirali odgovarajuće kategorije informacija. Uzorak je dala Europska komisija ovdje: http://ec.europa.eu/justice/consumer-marketing/files/model_digital_products_info_complete_en.pdf
Pitanje: I want to sell my products in all EU countries. Do I have to translate my website in all EU languages?
Svaka država članica može odabrati utvrditi jezik na kojem informacije moraju biti predočene potrošaču. U većini slučajeva to je/su službeni jezik/ci države članice.
Ako pružate informacije na nekom drugom jeziku od propisanoga, smatra se da informacije nisu niti pružene. Kako bi provjerili koji je jezik odabrala pojedina država članica molimo pogledajte na: http://ec.europa.eu/justice/consumer-marketing/files/overview_regulatory_choices.pdf
Stoga, ako je internetska stranica trgovca usmjerena na potrošače u državi članici koja je nametnula zahtjeve u pogledu jezika temeljem članka 6. (7.) Direktive, trgovac treba pružiti potrošaču predugovorne informacije na jeziku kojeg je propisala ta država članica.
Pitanje: I don’t want to sell my products in all EU countries. Can I refuse to sell to consumers abroad but within the EU?
For the moment under the current laws, there is no obligation to sell for online products and services. This is, however, going to change with the introduction of the Geoblocking Regulation which will impose an obligation to sell but not an obligation to deliver the goods or services. Under EU law, if you direct your business activities to consumers in EU countries different from your own one, it is usually the law of the country in which the consumer lives that applies to your contract with the foreign consumer. If you have both chosen a different law, that choice cannot deprive your foreign customer of the consumer protection granted by the mandatory provisions of his country of residence.
If, as a trader, you want to avoid being considered as a trader directing his activities to another country, so that you don’t have to apply consumer protection laws that are not the ones from your country, you need to act carefully. For instance, in order not to give the impression that you are targeting the market of a neighbouring country, you can opt not to translate your website in the language of that country.
Pitanje: My customer returned a parcel. How can I be sure what day/date he received the parcel and whether or not he has exceeded the 14 days for the withdrawal period?
The answer to this question would depend on the delivery agreement. The 14 days should start counting from the day the customer got physical possession of the goods. That could be derived for example from the confirmation of receipt of the consumer to the delivery service.
Pitanje: My customer sent me back his parcel 16 days after reception. What can I do?
The customer has the obligation to return the product within 14 days from the day he communicated his decision to exercise his right to withdraw. Therefore, the trader should check the date when the customer informed him of his willingness to return the product and start counting the 14 days from then on. If the customer sends the parcel back later than that, the trader can refuse it.
Pitanje: My customer ordered a book and sent it back 5 days after reception, using his right of withdrawal. The book came back with coffee drops. What can I do?
The customer has the right to inspect the product. Nevertheless, if the use of the product is more than necessary, as in this case, the seller can estimate the diminished value of the product and ask that money back from the customer.
Pitanje: My customer tried on the running shoes he ordered (the shoes smell!), but then used his right of withdrawal to send them back. What can I do?
Same as above, the customer has the right to test and use the products in the same manner as he would be allowed to do in a shop. Hence, he can try the shoes. However, if he used the shoes more than necessary, which may be indicated by the fact that the shoes smell, then the trader has a right to be compensated for the diminished value. This will particularly be the case where the shoes can no longer be sold as new.
Pitanje: My customer returned his parcel on time, using his right of withdrawal, and asks me to pay the postal costs, although I had mentioned in the pre-contractual information requirements that he would have to cover them himself. What can I do?
In a case where the customer has been informed from the start that he is the one to bear the direct cost of returning the product, the seller has no obligation to bear that cost.
Consumer rights and guarantees in case of defective goods
Pitanje: In Ireland, products have a 6 year guarentee, whereas EU law imposes a minimum 2 years and many EU countries have adopted 2 years. If I sell my product to another country, in which the legal guarantee lasts 6 years, do I respect the 6 year, or the 2 year?
In practice, the mandatory consumer legislation of another State will only be relevant if his or her rules are more protective than those of your legal system or the law you have agreed to refer to with the consumer. This might be the case where, for example, the legal guarantee period of the consumer’s law is longer than the one under your own law.
Pitanje: I sent the wrong parcel to a customer: I have sent black shoes instead of the white shoes he had ordered. What should I do?
If it was indeed stated in the contract binding both the consumer and the trader that the shoes should have been white, then it is clear that the goods delivered are not in conformity with the contract. There is a high chance in this case that the customer will complain quickly and will use his right of withdrawal which he has if the good was purchased online. In this case there is a lack of conformity with the contract; the shoes do not comply with the description given by the seller. In this case the consumer will have the right to ask for the replacement of the white shoes, which are not in conformity with what was in the contract. The consumer might be still happy with the shoes and ask for a discount.
Pitanje: I have sent fragile items in a bad packaging and the customer received his items (for instance glasses) broken. What can I do?
There is no doubt that the consumer did not order broken glasses and therefore the delivered goods are not in conformity with the contract. The consumer has, therefore, a right to ask for redress and ask for the replacement of the goods.
Pitanje: I have closed my online shop a year ago, but a customer contacts me as the product he bought a year and a half ago are defective. What should I do?
As you are no longer active and probably the legal entity of your shop does not exist either anymore, you can advise your customer to contact directly the manufacturer of the good or send him to another shop selling similar goods and brands. In any case, the two-year legal guarantee period starts from the day the consumer took possession of the product.
Pitanje: My customer comes back with his bike to my shop. There is corrosion on the frame. He says it started 3 months after the purchase. The consumer however only complains 7 months after the purchase. What can I do?
Since the consumer only comes more than six months after the problem occurred, it will be up to him to prove that there was an issue from the beginning. If he succeeds in doing so and in convincing you, then the two years legal guarantee is applicable and the consumer will be entitled to either a replacement or a repair. You could, for instance, offer to replace only the frame and not the whole bike.
Unfair commercial practices
Pitanje: My competitor has written on his entrance door: “best products in town”. We sell the same products (cameras). What can I do?
The base for this claim that products are the “best” is for the least not very convincing. There is nothing in the rest of the advertisement to clearly substantiate this claim. This could be considered to be a subjective claim and we might assume that an average consumer will not be misled by it.
Nevertheless, caution is advised with this type of advertisement as it could be judged misleading as “best in town” could be interpreted as if an independent agency gave this rating to the seller, even if that’s not the case. In that case, it could be considered that people have been deceived. It is therefore advisable to be very careful with this type of claims.
Pitanje: I am selling pizzas via an online service. My marketing angle is to say that they are very cheesy. Can I say “most cheesy pizza ever” to advertise them, or do I need a scientific test to prove it?
There is little evidence to support the claim. By definition the claim entails that the pizzas are cheesier than all the pizza’s produced by competitors. This could be considered as misleading and could harm the interest of competitors in an unjustified way. More acceptable alternatives would be to posit that the pizza is “extremely” or “very” cheesy.
Pitanje: I have put a poster saying “20% off this week” on some products last week as I need to make space in my shop. I did not sell them. I cannot really sell them for cheaper. Can I keep this poster until they are sold?
No, you cannot. This would be considered an unfair commercial practice as it is one of the explicitly blacklisted practices. It would be considered that you are falsely stating that a product will only be available on particular terms for a very limited time. It is considered that you are provoking an immediate decision and depriving consumers of sufficient opportunity or time to make an informed choice.
Pitanje: I have sold a tablet to a customer. He used it for a year. After a year, he realises that the tablet has less memory than was mentioned to him. What can I do?
You can take back the product and send it to the manufacturer, with whom you have a deal. In this case, the memory of a tablet was clearly an important element in the purchase decision of the consumer and he was misled if the tablet was sold with less memory than promised to him.
It should be however clear whether it is really the case that the consumer did not know about the memory capacity and that he does not try to get a new tablet for free. You could, for instance, argue that the memory capacity is very clearly stated on the box of the tablet.
Pitanje: Last week I advertised a camera in the local newspaper. It sold out after two days. Customers keep coming, asking to buy it. Can I offer them cameras that are similar but from another brand?
The answer to this question depends on a number of factors. What absolutely needs to be avoided is what is called “bait advertising”. This would be considered an unfair commercial practice and is one of the explicitly backlisted practices in the Unfair Commercial Practices Directive.
You should know that you cannot not offer these products at all or only an inadequate number thereof. If your stock is disproportionally low with regards to the advertisement campaign there is a high chance that the practice would be considered as unfair.
Pitanje: How do I find information about Alternative Dispute Resolution in my country?
The easiest way is to go to the ODR platform ec.europa.eu/odr, choose your language and choose ‘Dispute resolution bodies’ section on the left side of the screen. It then gives the list of ADR bodies in all countries, with the possibility to choose a country.
Pitanje: If there are several ADRs in my country, how should I choose the one I will work with?
Usually, the ADRs are specialised to cover certain sectors, products or services. It is best to choose the one (or the ones) that covers your sector. If there are several options, you could also choose depending on other characteristics – how much do you have to pay for the ADR to look at your case, are they close to where you are established and other conditions that may be important to you.
Pitanje: I disagree with the decision the ADR in my country took. What can I do?
First of all, you have to check what the ADR decision says about it. They would have to inform you what your next steps can be. In some cases, you will be obliged to follow the ADR decision unless you challenge it in court. In other cases, the decision of the ADR could be just a recommendation, and you can choose whether to follow it, or not.
Pitanje: I believe the ADR in my country is more consumer-friendly than trader-friendly. What can I do?
One of the main requirements for the ADR bodies is to be neutral and independent. If you believe that an ADR does not comply with this requirement, you could send this information to a body that supervises the ADR.
Pitanje: I am an online trader. The customer I have a dispute with speaks a different language that I do not understand. Is there a solution?
If you are an online trader, you can encourage the consumer to use the EU ODR platform
The Platform provides automatic translations for all the documents, so can be very helpful in this respect.