Key takeaways
What are the changes:
- Amendment and expansion of mandatorily disclosed information.
- New requirements for concluding contracts electronically and over the telephone.
- Extended rights to withdraw from a contract.
- Prohibition of dual-quality products.
- New conditions for providing discounts.
- Regulation on contracts for the supply of digital content and digital content services.
In more detail
- Amendment and expansion of mandatorily disclosed information
The Amendment expands the information which a seller is required to provide to a consumer before a contract is concluded. Such information newly includes the time of delivery or performance of goods and services or information on post-sales service and its terms and conditions, on the functioning, interoperability and compatibility of digital content and data on price personalization for remotely concluded contracts. Other mandatory information is partially clarified and amended, such as in relation to contact details or to providing a form for contract withdrawal (which will no longer have to be provided during a telephone call, in particular).
As for remotely concluded contracts, the information provided by an entrepreneur to a consumer before the conclusion of a contract becomes directly part of the contract (unless the parties agree otherwise regarding a certain requisite). The purpose of this change is to make any information provided by an entrepreneur to a consumer before the conclusion of a contract binding upon the entrepreneur.
Beyond the scope of the above information duties relating to contract conclusion, the Amendment introduces the duty to disclose certain information in other situations as well. For example, operators of online marketplaces (that is, intermediaries between sellers and consumers) will have to disclose the main parameters of sorting products and services in searches, or the information on whether or not a third party offering the products or services is an entrepreneur. In addition, special information will need to be disclosed when concluding contracts over the telephone or when publishing reviews.
- New requirements for concluding contracts electronically and over the telephone
In the case of orders placed by electronic means, an entrepreneur has a new duty to make sure that a consumer placing an order expressly acknowledges their being obligated to pay the order. An order made by means of a button on a website is newly required to include a legible text reading “Order with obligation to pay”, or other corresponding unambiguous formulation to that effect. If an entrepreneur fails to meet this duty, the contract is invalid (and thus not binding), unless the consumer invokes its validity.
In addition to EU law requirements, the Amendment introduces significantly stricter conditions for concluding consumer contracts over the telephone. Such a contract will newly be concluded not merely by the acceptance of an offer during a telephone call, but only after a consumer signs the offer or sends their consent in the electronic form.
- Extended rights to withdraw from a contract
A consumer may newly withdraw from a contract that was concluded by using an unfair commercial practice, within 90 days from its conclusion, or may request that the price be adequately reduced. This right may not be exercised where it is disproportionate given the subject matter of the contract and the nature of the unfair commercial practice.
For contracts concluded in organized selling events or in door-to-door sale, the deadline for withdrawing from a contract is extended from 14 to 30 days.
- Prohibition of dual quality products
Unfair commercial practices are newly understood to include the introducing of a product to the market as a product identical to a product marketed in other Member States of the European Union if its composition or characteristics are substantially different without this being objectively justified.
- New conditions for providing discounts
When providing discounts, a seller must newly publish the lowest price for which the respective product was sold over the past 30 days before the discount. If the seller gradually increases the discount, it should disclose the lowest price for which the product was sold over the past 30 days before the first discount was provided. This duty does not apply to perishable products and products with a short shelf life.
- Regulation on contracts for the supply of digital content and digital content services
The Amendment introduces a new type of contract ‒ contract for the supply of digital content. Digital content is understood to mean data created and provided in the digital form. These will typically be films, music or electronic books. The regulation applies accordingly to providing digital content services, which will include cloud storage and online platforms allowing for the creating or editing of digital content. With respect to contracts for the supply of digital content and digital content services, the legal regulation also provides for certain variations ensuing from the nature of these contracts.
There also have been changes in the area of administrative sanctioning. The Amendment makes it possible to penalize failure to meet the stipulated duties by administrative fines to a significantly wider extent than is currently possible (for example, it will now be possible to sanction missing information in business terms and conditions). Certain offences may newly be sanctioned by a penalty of up to 4% of the respective sellerʼs total annual turnover.
In addition, the Amendment includes a number of wording adjustments and clarifications (such as the introduction of the term abusive arrangement) and introduces additional duties in relation to consumers and other entities (such as the relatively extensive duties in relation to reviews or the limitation of the due date of contracts from public procurement to 30 days and, where justified, to 60 days under stipulated conditions).
The new legal regulation includes a specific regulation of the liability for defects and guarantee-related amendments, addressed by us under a separate Alert: Amendment to Act on Consumer Protection and Civil Code and Impact Thereof ‒ Liability for Defects and Guarantee.
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In conclusion, please note that the above changes will require an update of any template contracts concluded with (not only) consumers, business terms and conditions as well as procedures to make them compliant with the new legal regulation, which took effect on 6 January 2023. We will be happy to provide the necessary legal advice should you wish to find out how the Amendment will influence your company or to amend your contractual documents and set up compliant procedures.
Please do not hesitate to refer to us with any queries.
