Czech Republic

Status

Adopted

Explanatory note re status

The legislation implementing the provisions of the Omnibus Directive have entered into effect as of 6 January 2023.

Implementation Act

Act amending the act no. 634/1992 Coll. ("Consumer Protection Act") as amended and act no. 89/2012 Coll. ("Civil Code"), as amended.

(In Czech: Zákon, kterým se mění zákon č. 634/1992 Sb., o ochraně spotřebitele, ve znění pozdějších předpisů, a zákon č. 89/2012 Sb., občanský zákoník, ve znění pozdějších předpisů)

(Envisaged) Implementation Date

The implementing acts came into effect well past the implementation deadline on 6 January 2023.

Approach to implementation

Amendments to existing laws (see "Implementation Act").

Next steps

The implementation acts came into force on 6 January 2023. 

A. Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)

What penalties can be imposed for infringements of consumer rights related to consumer contracts? 
Has the option to limit the penalties been implemented? 

The amendments made by the Omnibus Directive are transposed, in particular, to Sec. 1811 and following of the Civil Code. The penalties (among other provisions) are then contained in the amendments to the Consumer Protection Act.

Penalties under the Consumer Protection Act:

The Consumer Protection Act contains mainly provisions regarding monetary fines; the maximum amounts of which range from CZK 500,000 to CZK 50,000,000 depending on the type and gravity of the breach. The individual offences to which individual maximum penalty amounts are listed in Section 24 of the Consumer Protection Act.

Penalties in connection to the enforcement in coordinated actions according to Art. 21 of the Regulation (EU) 2017/2394:

Sec. 24, para. 20 of the amended draft of the Consumer Protection Act sets forth that if a penalty is imposed for the infringement stated in Sec. 24, para. 1 lit. a), para. 7 lit. b), d) and k) and para. 17 in connection to the enforcement of Art. 21 of the Regulation (EU) 2017/2394, the penalty imposed may be up to 4% of the seller's total annual turnover. If information on the seller's annual turnover is not available, a fine of up to CZK 50,000,000 may be imposed. The Czech legislator opted to limit the penalties regarding abusive contractual terms to those terms set forth by Section 1814 par. 1 of the Civil code, which have been drafted in advance and the consumer had no chance to influence them.

B. Amendments to Price Indications Directive (98/6/EC)

I. What obligations must traders now comply with when advertising price reductions to consumers? 

According to Sec. 12a of the amended Consumer Protection Act, information on a discount on the price of a product shall contain information on the lowest price for which the product was offered:

a) in the 30 days before the discount was granted;

b) from the time the trader first offered and sold a product until the moment of the grant of discount, in case the product is being offered and sold for less than 30 days; or

c) in the time of 30 days before the first grant of discount, if the trader increases the discount progressively.

The obligation above does not apply to perishable products and products with a short shelf life.

II. What penalties can now be imposed for infringements of consumer rights related to the indication of the prices of products offered to consumers? What criteria have been established for the imposition of the fines?

(pertains to the amended Art. 8)

Sec. 24 lit. par. 19, lit. d) of the amended Consumer Protection Act states that the maximum fine imposed shall be up to CZK 5,000,000 (offence under Sec. 24, para. 7, lit. l) of the Consumer Protection Act.

The criteria common in administrative proceedings according to the Czech law regarding the imposition of a fine for an offence shall apply, which include, for example:

• the nature and gravity of the offence;
• the fact that any of several offences committed by one or more acts has not been decided in joint proceedings;
• aggravating and mitigating circumstances;
• in the case of an attempted offence, the extent to which the offender's conduct came close to completing the offence and the circumstances and reasons why it was not completed;

and other.  

C. Amendments to Unfair Commercial Practices Directive (2005/29/EC)

I. What are the implications of "digital services and content" now being considered "products" under the Unfair Commercial Practices Directive? 

It is necessary to say that even under the current legislation, the Civil Code defines "things" in the legal sense in a rather broad manner, so in this respect, the amendments will serve mostly as an express specification and clarification of certain aspects.

Digital content provided on a tangible carrier is, in the amended wording of the Civil Code, explicitly subsumed under the regime of "sale of goods" and there are certain specifics for the supply of digital content which are different than those for digital content on a tangible carrier.

In compliance with the Sale of Goods Directive the amended Civil Code also introduces the category of goods "goods with digital aspects".

II. What changes for traders who offer goods and services of different traders or consumers on their website that are displayed in a certain order when searched by a consumer ("rankings")? 

Ranking information:

Sec. 11b of the amended Consumer Protection Act states that the trader is obliged to, before the conclusion of a contract or before the consumer makes a binding offer on a online marketplace, provide the consumer with general information on the main parameters determining the ranking of offers submitted by consumers and their relative weighting in relation to other parameters.

Accessibility:

The trader shall make this information available in a specific section of the online interface in such a way that it is directly and easily accessible from the point at which the offers resulting from the consumer's search query are made.

III. What are the transparency obligations that traders who operate online marketplaces where other traders and consumers can sell goods and services must comply with now? 

Further Transparency Obligations:

Additionally to the obligation stated under C.II., the trader is obliged to provide:

• information on whether or not the third party offering the product or service is a trader, based on a declaration by that third party to the online marketplace provider;
• an indication that consumer rights under European Union consumer protection legislation do not apply to the contract if the third party offering the product or service is not a trader; and
• where the obligations under the contract are to be performed by both the third party offering the product or service and the online marketplace provider, information on the obligations of each of them.

IV. Are there any new provisions for consumer protection against unfair practices in doorstep selling and commercial excursions? 

According to section 1829a Civil Code, in case of an unsolicited visit of a trader to a consumer's household, the consumer may withdraw from the contract within a longer period of 30 days instead of the general period of 14 days.

V. What transparency obligations must traders who publish consumer reviews now comply with? 

The amended version of Sec. 5a of the Consumer Protection Act states in para. 5 that, where the trader provides access to consumer reviews of products or services, information on whether and how the trader ensures that the published review stems from a consumer who has actually used or purchased the product or service is also considered relevant.

This complements the general definition of deceptive commercial practices in Sec. 5a of the Consumer Protection Act, which requires that the trader includes, in consideration of the context and circumstances, all relevant information in order for the consumer to make a purchase decision.

VI. What must traders who market a good, in one Member State, as being identical to a good marketed in other Member States, while the goods have a different composition ("dual quality"), consider now? 

Sec. 5, para. 3 of the amended Consumer Protection Act states in the newly added lit. d) that any marketing of a product as identical to a product marketed in at least 2 other Member States of the EU, even though such a product has a substantially different composition or characteristics, is a deceptive commercial practice, unless justified by legitimate and objective reasons.

It is further important to keep in mind the regulation in Act No. 110/1997 Coll., on food and tobacco products, as amended, which entered into effect before the transposition of the Omnibus Directive, which is relevant for the placement of food products on the market.

VII. Under what conditions and with what effects are legal remedies now available to consumers who have been harmed by unfair commercial practices? 

The option of a consumer to claim damages against a trader arising from (inter alia) unfair commercial practices remains unaffected and the consumer has (even under the current legislation) access to "general" means provided by the Civil Code (compensation for damage, unjust enrichment etc.) in addition to other rights of the consumer granted to it by the Civil Code and the Consumer Protection Act.

VIII. What penalties can be imposed for infringements of consumer rights by unfair commercial practices? 

Sec. 24 para. 20 sets forth a fine in the amount of up to 4% of the seller's total annual turnover (If information on the seller's annual turnover is not available, a fine of up to CZK 50,000,000 may be imposed) in case of enforcement through coordinated actions according to Art. 21 of the Regulation (EU) 2017/2394.

Sec. 24 sets forth the offences along with the fines which may be imposed on the perpetrator.

In more serious cases, in addition to the fine, the authorities may also impose the destruction or cessation of sales of faulty goods in case that life, health or property is in danger. Unfair commercial practices may also constitute a criminal act under section 253 of the Act no. 40/2009 Coll., as amended (harming consumers).

D. Amendments to Consumer Rights Directive (2011/83/EC)

I. What are the implications of "goods with digital elements" and "digital services and content" now falling within the scope of the Consumer Rights Directive? Must traders consider any new information requirements? 

The Civil Code sets forth additional information obligations of the trader with respect to digital content, digital content services and goods with digital elements, such as the information on the functionalities thereof, technical protection measures or compatibility/interoperability.

In case of the provision of digital content supplied otherwise than on a tangible carrier, the confirmation on the conclusion of a contract issued by the provider shall contain information, if applicable (see D.VI.), that the consumer has expressly agreed to the provider commencing performance before the lapse of the withdrawal period and that, as a result, the right of the consumer to withdraw from the contract is extinguished.

II. Do the national provisions that transpose the rules under the Consumer Rights Directive also apply when consumers "pay" for the provision of digital content or services with personal data? 

Yes, the newly added Sec. 2389g of the Civil Code states that the provisions of the Civil Code regulating the provision of digital content shall apply in case that the user provides or undertakes to provide his or her personal data to the provider in lieu of remuneration, unless the provider processes them only for the purposes of providing the digital content or only to comply with his or her legal obligations.

III. What new information obligations and formal requirements must traders comply with for distance or off premise contracts with consumers? 

The Sec. 1820 of the Civil Code sets forth information obligations of the trader with regard to concluding "distance" contracts (including off premise sales). These include in particular information on:

• the main characteristics of the sold goods and services;
• the identity of the trader;
• the official address, phone number, electronic mail address etc.; and
• the aggregate price of a product and the costs of delivery.

In case that the trader and the consumer and the trader are physically present during the off premise sales, the information above should be supplied in hard copy, unless the consumer agrees otherwise. The amended provision also includes specific obligations with regard to the supply of digital content not provided on a tangible carrier and supplies of water, gas or electricity.

According to the Consumer Protection Act, the failure to comply with the information obligations of the trader with regard to off premise sales constitutes an offence thereunder.

IV. Which additional specific information requirements apply for contracts concluded on online marketplaces? 

The Consumer Protection Act introduces the legal definitions of an online marketplace and the online marketplace provider.

Online marketplaces are subject to specific information and transparency obligations. According to Sec. 11b of the amended Consumer Protection Act, the provider of an online marketplace shall, in advance of the conclusion of the contract or before the consumer makes a binding offer on the online marketplace, provide the consumer by clear, comprehensible and suitable means of distance communication with:

• general information on the main parameters determining the ranking of the offers presented to the consumer and their relative weighting compared to other parameters; it shall make that information available in a specific section of the online interface in such a way that it is directly and easily accessible from the place where the offers resulting from the consumer's search query are made;
• information as to whether or not the third party offering the product or service is a trader, on the basis of a declaration by that third party to the provider of the online marketplace;
• information that the consumer's rights under European Union consumer protection legislation do not apply to the contract if the third party offering the product or service is not a trader; and
• where the obligations under the contract are to be performed by both the third party offering the product or service and the online marketplace provider, information on the obligations of each of them.

The amended Consumer Protection Act then introduces penalties for the breach of the obligations above.

V. In case of a withdrawal by the consumer: What must traders consider with regard to the use of content (other than personal data) created or provided by the consumer when using digital products provided by the trader? 

According to the newly added Sec. 2389n of the Civil Code, in case the consumer withdraws from the contract, the trader shall refrain from using content (other than the consumer's personal data) that was created by the user when using the digital content.

This rule does not apply to cases in which:

a) the content is unusable without such digital content;

b) the content relates exclusively to the consumer's activity in using the digital content;

c) the content has been mixed by the trader with other data and can only be separated with unreasonable effort; or

d) it was created jointly with other persons who may continue to use the content.

Except in the cases referred to in (a) to (c), the trader shall, on request, make available to the consumer content, other than the consumer's personal data, which the consumer has created or stored when using the digital content through the trader. The trader shall do so free of charge, within a reasonable time and in a commonly used machine-readable format.

If the consumer withdraws from the contract, the trader may prevent the consumer from further use of the digital content, in particular by making the digital content or the user account unavailable to the consumer.

VI. What are the new provisions for the expiry of / exceptions from the consumer's right of withdrawal? 

According to the amended wording of the Sec. 1837 of the Civil Code, the consumer may not withdraw from the contract on the provision of digital services if the services have been provided in full. In the case of performance for consideration, the consumer may not withdraw from the contract on the provision of services only if the performance has begun with the prior express consent of the consumer before the expiry of the withdrawal period and the trader has informed the consumer before the conclusion of the contract that the provision of the performance extinguishes the right to withdraw from the contract.

Consumers may further not withdraw from the contract for the provision of digital content, which is not supplied on a tangible carrier after the performance has commenced. In case of performance for consideration, the consumer may not withdraw from the contract after the performance has commenced, if the performance commenced with the prior express consent of the consumer before the expiry of the withdrawal period, the consumer has been informed that the right to withdraw from the contract is thereby extinguished and the trader has provided him with a confirmation pursuant to Sec. 1824a para. 1 and 2 or Sec. 1828 para. 3 and 4 of the Civil Code.

VII. What penalties can be imposed for infringements of consumer rights? 

Please see our answers under A. and C. VIII. for details.

E. Optional Provisions and Deviations

Has the Member State transposed a provision which is optional under the Omnibus Directive or made use of a deviation possibility provided for therein?

Article 8b para. 2 of the Unfair Contract Terms Directive - partially used (where the contractual terms are expressly defined as unfair in all circumstances in national law)

Article 6a para. 3 to 5 of the Price Indication Directive: Czech Republic has made use of the option to exempt certain products or practices from the obligation to indicate the prior price when announcing a price reduction.

Article 3 para. 5 Unfair Commercial Practices Directive: Czech Republic has made use of the option to regulate new obligations for consumer protection against unfair practices in both doorstep selling and commercial excursions.

Article 11a of the Unfair Commercial Practices Directive: the Act on Consumer Protection provides for additional means of remedy for the consumers under Section 5d.

Article 9 para. 1a Consumer Rights Directive: The Czech Republic extended the withdrawal period to 30 days for contracts concluded in the context of unsolicited visits by a trader to a consumer’s home or excursions organised by a trader with the aim or effect of promoting or selling products to consumers.

Noteworthy points arising from legislative changes

Although the Implementing Acts are in effect as of 6 January 2023, the Implementing Acts are still relatively young and there have not been many notable cases of enforcement of the requirements and duties introduced by the Omnibus Directive. According to the press release of the Czech Trade Inspection dated 11 August 2023, the authorities have so far been focusing mainly on the inspections regarding compliance with the obligations related to the calculation of discounts and the due fulfilment of information duties regarding discounts by the sellers.