What are the consumer`s rights when buying goods and services and how can they be defended? What are the consumer's chances of winning his case in court? How are the guarantees established by the Law of Ukraine “On Consumer Protection” implemented in practice?
The best way to answer these questions - is to analyze how national courts approach the issue of consumer protection and to trace the main trends of caselaw in the first half of 2021.
Is the consumer's right to information really guaranteed?
Obtaining the necessary, accessible, reliable and timely information - the key to conscious and competent consumer choice in purchasing goods or ordering services.
The Law of Ukraine "On Consumer Protection" clearly states that information about the product (quantity, quality, main characteristics, range, manufacturer) is mandatory to be indicated and informed to the consumer.
The case law of the Supreme Court over the last six months confirms the existence of this inalienable right.
In particular, by the Case №172 / 637/20 of 01.07.2021 (https://bit.ly/3jO8V6F ), the Supreme Court upheld the claim of the consumer who complained to PJSC "VF Ukraine" because did not receive complete and reliable information about the services provided. The defendant did not inform the consumer about the conditions of using international roaming services, which led to the provision of such services on credit in the amount of UAH 549,870 without the subscriber's consent. Thus, the consumer, who was not guaranteed the right to information, obtained appropriate compensation.
In another Case, № 826/5432/17, dated 29.01.2021 (https://bit.ly/3AyWGS0), the Supreme Court also sided with the consumer and confirmed the illegality of the actions of LLC "Argo - trade network ", which did not specify the necessary information about the shelf life of the product, as well as the name and location of the manufacturer and the company that performs its functions of accepting claims from the consumer, as well as repairs and maintenance. The Supreme Court noted that the company was obliged to provide such information, and its violation accordingly entails the imposition of a fine, and therefore the decision of the State Food and Consumer Service in this regard was made quite rightly.
The Supreme Court reached the same conclusion in case 18818/1264/16,dated 27.05.2021 (https://bit.ly/3iJZfLg). The Court obliged Sumygaz Zbut to correct gas supply bills that do not contain information on the total amount of recalculation due to the difference in consumption norms, and to establish the cost of accounting and providing information to consumers about the service provided (billing) in the total cost of services and recalculate in two months in the absence of this indicator.
What are the chances of proving in court that the consumer has been "misled"?
The law prohibits any business practice that may mislead the consumer. However, the last six months of the Supreme Court's practice have shown that the consumer should make considerable efforts to make his arguments about misleading convincing to the court, and the circumstances in which the consumer could not find out about the real conditions of buying goods or ordering services were obvious.
Thus, in Case № 370/1347/17 of 03.03.2021 the consumer complained about the use of unfair business practices due to misleading him when buying a car. Under the terms of the contract, the parties determined the value of the car - UAH 82,620. In fact, the amount of payments increased every month, and therefore, the cost of the car was such a price that the plaintiff would not otherwise agree. The first court agreed that Avto Prosto LLC used the substitution of the terms “car price” and “current car price”, which is misleading and dishonest business activity. However, the Supreme Court overturned these decisions, stating that the parties had agreed on all the essential terms, including the procedure for calculating the payments, at the time of the conclusion of the impugned contract.
Such a practice has been common over the past six months. Legal positions in the Case № 554/1781/20 (https://bit.ly/2VHPC6I), Case № 643/15333/15-ts (https://bit.ly / 3CuUEnP), Case № 756/14941/18 (https://bit.ly/3yBocxJ), Case № 759/19469/17 (https://bit.ly/3jIbXtf ) Case № 755/11237/17 (https://bit.ly/3CyXacI) reflect similar conclusions.
How does the right to product safety work?
Article 14 of the Law guarantees the right of every consumer to products that are safe for his life, health, as well as his property and the environment.
An interesting example of the application of this article by the Supreme Court in 2021 was the Case № 758/5941/15-ts (https://bit.ly/3fOAPyh).
According to the circumstances of this case, Infox LLC, a monopolist of water supply in Odessa, was fined for violating the rights of consumers to the proper quality of service and product safety. The water sold did not meet the standards and requirements of regulations on safety for life, health and property of consumers. Penalties were imposed on the AMCU's Infox. It was not possible to appeal the ruling in court, as the courts of all three instances refused to satisfy the claim, and the Supreme Court once again confirmed the applicability of the rules on consumer protection.
How to compensate the consumer for moral damage?
An interesting case before the Supreme Court this year was the Case №159 / 2882/18 (https://bit.ly/3lUtroS).
According to the circumstances, the plaintiff bought a keyboard from the Foxtrot store, which turned out to be defective. In accordance with the law, he asked to return the goods or replace them with a similar one. He was denied, at first it was explained that he himself had to prove the fact that he had received a faulty keyboard and conduct appropriate examinations. Later, in another store, they took the goods from him, but he could not return the money. Because of this situation, his health deteriorated, he was treated by a cardiologist. He believes that the deterioration of his health is in a direct causal connection with the psycho-emotional stress caused by illegal actions and illegal demands of Foxtrot employees. The plaintiff requested compensation in the amount of UAH 1,500,353, which is the cost of the keyboard, Nova Poshta services and the cost of treatment to restore health; and non-pecuniary damage in the amount of UAH 2,000,000. The Supreme Court did grant the claim, albeit at a much lower rate, and pointed to the possibility of compensation for non-pecuniary damage as a result of the violation of consumer rights.
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