New rules on consumer rights protection
On December 10th, 2021, it was published in “Diário da República”, the Decree-Law no. 109-G/2021, which enhances the consumer rights, partially transposing into national law the Directive (EU) 2019/2161, dated from November 27th, 2019 of the European Parliament and Council, concerning the protection of consumer rights, as regards the better enforcement and modernization of the European Union consumer protection rules, amending several national laws.
Among the several rules introduced, we highlight the following:
(i) The concept of “product” will now include not only goods and services, but also digital content and services;
(ii) The trader must inform the consumer in a clear, objective and appropriate manner about a wide range of aspects, including (i) the existence of a guarantee of conformity of the goods, digital contents and services, with an indication of its term and, if applicable, the existence of after-sales services and commercial guarantees, with a description of their conditions; (ii) the functionality of the goods, digital contents and services (e.g. mode of use, existence or absence of technical restrictions, including technical protection measures, if applicable), and (iii) any relevant compatibility and interoperability of the goods, digital contents and services with informatic equipment’s and programs (e.g. operating system, the required version and equipment characteristics);
(iii) The trader is prohibited from adopting techniques with the intention of deliberately reducing the lifetime of the goods in order to encourage or increase their replacement;
(iv) Any information relating to a commercial practice with price reduction/promotional conditions has to state the lowest price previously practiced, that is, the lowest price at which the product was sold in the last 30 consecutive days prior to the application of the price reduction, as well as the sale method, the type of products, the starting date, the duration period and, if any, the changes inherent to it, regardless of the means of communication;
(v) The prices of all service provision, regardless of their nature, must appear in lists or posters displayed, in a visible manner, at the place where the services are offered or provided to the consumer;
(vi) The economic operator is responsible to provide documentary evidence of the lowest price previously practiced and, in the case of use of more advantageous conditions than those used in the sales periods without price reduction, to prove that the advantage is real and achievable;
(vii) Regarding agricultural products and perishable food or products that are four weeks away from their expiry date, the announced price reduction must be real by reference to the lowest price previously practiced during the last 15 consecutive days in which the product was on sale or during the total period of availability of the product to the public, if lower;
(viii) In relation to the display of prices for commercial practices in business premises, the signs, labels or lists shall visibly display the new price and the previously lower price;
(ix) The trader may, by agreement with the consumer, replace the purchased product, irrespective of the reason, provided that, among other requirements, the replacement is carried out within at least the first five working days from the date of purchase;
(x) Widening of the concept of misleading commercial practices and material misleading omissions to other situations, including: (i) providing search results in response to a consumer's online query without clearly disclosing the payments made specifically to obtain a higher ranking of products in the search results; (ii) reselling event tickets to consumers if the trader has purchased such tickets through automated means to circumvent limits of the number of tickets that can be purchased or other rules applicable to their purchase; (iii) stating that ratings of a product are provided by consumers who have actually used or bought the product, without taking steps to verify that the ratings are actually posted by those consumers; (iv) presenting false consumer ratings or recommendations, as well as distorted consumer ratings or recommendations on social media, in order to promote the products or instruct a third party to do so, and (v) omitting information concerning methods of payment, delivery or performance or, in respect of products offered on online markets, whether or not the third party offering such products is a trader, in the case of a contractual offer or invitation to purchase;
(xi) The consumer is entitled to an appropriate reduction in price or to terminate the contract with regard to the products purchased through an unfair commercial practice unless this is impossible or considered an abuse of rights;
(xii) Before the consumer is bound by any distance or off-premises contract, the trader must provide the consumer, in a timely, clear and comprehensible manner, with a wide range of information (e.g. identity of the supplier of goods or service provider, information that the price has been customized on the basis of an automated decision where applicable, the existence and duration of the guarantee of conformity of the goods, digital contents or services, functionality of the goods with digital elements, digital content or services, including technical protection measures, if applicable and any relevant compatibility and interoperability of goods, digital content or services of which the trader is aware or can reasonably be expected to be aware, if applicable);
(xiii) If the contract is entered into through distance communication means with limited space or time to display the information, the supplier of goods or service provider must provide by that particular means, prior to the conclusion of the contract, various pre-contractual information concerning, inter alia, the main characteristics of the goods or services, the identity of the trader, the total price, the termination right, the duration of the contract and, if the contract is of indeterminate duration, the conditions of its termination;
(xiv) The consumer has the right to terminate the contract free of charge and without giving any reason within a period of 14 days or, for off-premises contracts, within a period of 30 days;
(xv) Where the contract if freely terminated, the consumer must refrain from using the digital content or services and from making them available to third parties;
(xvi) If the consumer intends the provision of services to begin during the period referred to in paragraph (xiv) and the contract imposes an obligation to make payment, the service provider must require the consumer to make an express request through medium support and request the consumer to acknowledge that, if the contract is performed in full, the consumer loses the free termination right;
(xvii) The consumer will not bear any costs for the supply of digital content which is not physically supplied if he has not given his prior consent for the performance to begin before the end of the period of 14 or 30 days, as the case may be;
(xviii) Unless the parties agree otherwise, the consumer may not freely terminate contracts for the supply of digital content not physically supplied with an obligation to pay if he has expressly consented in advance to the commencement of performance during the period of free termination and he acknowledges that this consent forfeits the right of free termination and the digital content provider has provided confirmation;
(xix) In the case of products placed on the market for the first time, where the price to be charged after the end of the period of sale with price reduction is announced, the economic operator must demonstrate that this price is actually being charged for a reasonable period of time in the three months following the promotion;
(xx) Establishing of specific additional information requirements for contracts concluded on online markets and reinforcing the due diligence measures to be adopted by the online marketplace provider in providing access to reviews made by consumers, namely the obligations to ensure that reviews are published without delay and that their author may, at any time, edit their content and to ensure that all reviews, positive or negative, remain available for the same period, not less than six months, and to provide mechanisms for reporting false or abusive reviews
(xxi) Establishing an administrative offence regime and attributing the power to investigate administrative offence proceedings and apply the respective fines to the competent regulatory or market control authority under the terms of the applicable sectorial legislation, the Food and Economic Security Authority or the Directorate General of the Consumer, as the case may be.
The Decree-Law No. 109-G/2021, of December 10th, will enter into force on May 28th, 2022.
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