Organizational Opportunities for Businesses to Guarantee Consumer Rights in the Online Sale of Goods and Provision of Services
The Consumer Protection Act (CPA) lays down special provisions in respect of contracts negotiated away from business premises and distance contracts, which businesses have to comply with in developing their own rules for the online sale of goods and provision of services.
The CPA provides for the consumers’ right of withdrawal from these contracts within 14 days from the day of the conclusion of the contract in the case of service contracts or the day on which the physical possession of the goods is acquired in the case of sales contracts. It should be noted that the right of withdrawal is recognized only for consumers who are natural persons. These provisions do not apply to traders who have purchased goods or services for the purposes of their trade, business, craft or profession.
In the event of withdrawal of the consumers from a distance contract, the trader has to reimburse all payments received from the consumer, including the costs of delivery, not later than 14 days from the day on which the trader is informed of the exercise of the right of withdrawal. The cost of returning the goods are borne in accordance with the conditions laid down in the distance contract or the applicable general terms and conditions.
The special provisions concerning contracts negotiated online reflect the impossibility for the consumer to see the goods because it is important to emphasize that the right of withdrawal is essentially different from the right to return a faulty product. Consumers are entitled to withdraw from the online purchase of goods or services within 14 days, without any existing objective issue and without the need to give reasons for the decision to withdraw.
Of course, the law provides for opportunities to restrict possible attempts at abuse of this right. The recitals of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 read that the consumer should be allowed to test and inspect the goods he has bought only to the extent necessary to establish the nature, characteristics and good functioning of the goods.
There are some exemptions from the general rule that consumers have the right of withdrawal when they buy goods and services online. These exemptions are interpreted very strictly and they are applicable only where the trader has informed the consumer in advance that the right of withdrawal is inapplicable in accordance with any exemption under Article 57 of the CPA. For example, the right of withdrawal does not apply to the purchase of concert tickets or to the supply of goods which are liable to deteriorate or expire rapidly provided that the trader has informed the consumer thereof.
Furthermore, where the performance of the service has begun before the expiration of the 14 days but the prior express consent of the consumer has not been given, the law requires that the trader reimburse all payments, regardless of whether the service has been provided wholly or in part.
Another example of possible adverse consequences for the trade as a result of a failure to duly inform the consumer can be seen in Article 55(4) of the CPA, stating that the consumer shall not be liable for any diminished value of the goods (including the cases of any damage caused to the goods by the consumer) where the trader has failed to inform the consumer of the right of withdrawal.
As is seen from the above, traders should have very clear and precise terms and conditions for the online sale of goods and provision of services so as to limit the possibilities for abuse of rights.
Businesses should comply with the special statutory requirements for providing prior information before the supply is completed and this information should cover not only the goods or services offered but also the terms and conditions, time limits and ways of exercise of consumer rights. This could be achieved most conveniently through the introduction of general terms and conditions. Business activities based on general terms and conditions are an appropriate solution for business operation in accordance with standard rules applicable to each individual sale or supply. The fact that the general terms and conditions have been developed by the trader in advance rather than negotiated individually with the other party substantiates the thesis that any “unfair terms” with regard to consumers could be declared null and void.
The provisions of the Consumer Protection Act are fully in line with the requirements set out in Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, ensuring maximum harmonization of the rights which consumers enjoy in the online sale of goods and provision of services in the individual EU Member States.