Zaštita potrošača od nepravične poslovne prakse

Abstract

The research subject and objective in this doctoral dissertation is the analyse the protection of consumers from unfair business practices and unfair terms in consumer contracts in the European Union law and harmonisation of the law of the Republic of Serbia. Directives 2005/29/EU and 93/13/EEZ are the two most significant European Union directives in the area of consumer protection law in the Member States. Unfair business practices between companies and consumers is defined as any trader action, failure, manner of doing business and representation, way of commercial communication in advertising or marketing related to the promotion, sale or delivery of products. It appreciably impairs the consumer’s ability to make an informed decision, thus causing him to make transactional decision that he would not have taken otherwise. Unfair terms in consumer contracts are those concluded between trader and service provider and consumer which were not individually negotiated and which are contrary to the principle of professional diligence and honesty, thus disturbing the balance of rights and obligations arising from contracts at the consumer’s expense. Research into the protection of consumers from unfair commercial practices and unfair terms in consumer contracts in the European Union law is based on a combination of various methods of scientific research, research of literature, and cases from the consumer protection practices in the European Union countries and Republic of Serbia. The importance of consumers as subjects on European Union markets dates back to the 1970s. The Maastricht Treaty established legal framework for comprehensive protection, such as: economic interests, health and safety, the right to be informed, education and association. The analysis of the problem of unfair commercial practices is showing an increasing sensitivity to issues of great importance for consumers in everyday life, often exposed to misleading and untruthful manipulation. What exactly will be unfair greatly depends on the context in which a business transaction is carried out and which circumstances and prerequisites determined the occurrence of this act. Example of aggressive advertising is campaign of Nestlé powder milk. The analysis of unfair terms in consumer contracts shows that legal equality does not necessarily always mean actual equality of the contracting parties on the market, as they do not have the same economic, i.e. financial strength, the same volume and quality of information, and the same level of business knowledge and skills. In the case of prepared standard contracts, certain sections of the content can be individually negotiated between contracting parties. However, in a large number of contracts, one party exclusively determines the content of the contract and conditions of its conclusion by exclusion negotiation while the other party only has the freedom to decide whether they will conclude or not. There are several ways to overcome unfair terms in consumer contracts. One of it is that competent court decide whether a particular contractual terms is unfair or not. Another way is to enumerate those terms which shall in all circumstances be regarded as unfair such as the so-called black and gray lists. The dissertation presents an analysis of the legal setup of unfair terms in consumer contracts in individual countries of the European Union and Southeastern Europe, and the court practices of some countries. An overview of the implementation of the provisions of directives on unfair terms in consumer contracts and unfair commercial practices in national legislations of the European Union member states provides an insight into the models of harmonisation with standards prescribed by directives. The issue of consumer protection is also considered from the viewpoint of specific areas, such as the producer’s responsibility for defective products, general product safety, and safety standards for food products and medical devices. The issue of unfair competition is considered as a form of unfair commercial practices, which misleading consumers concerning product choice. The analysis of procedural legal consumer protection in the European Union law is presented. It includes out-of-court settlement of consumer disputes, institution of special legal protection forms (claims) for the protection of collective and diffuse consumer interests, as well as institution of special rules of international competence in consumer disputes. Consumer protection policies in the Republic of Serbia, although not a member of European Union, are mostly follow acquis communautaire of the European Union. Implementation of directives into the Serbian legislation is, above all, in the interest of its citizens rather than fulfilment of one of the conditions for acquiring the status of full membership. The experiences of the European Union in regulating consumer rights are useful and can present a model in dispute solving in the Republic of Serbia. The base legislative framework for consumer protection in the Republic of Serbia is the Law on Consumer Protection adopted in 2014. Although it provides normatively satisfactory protection, but it is necessary to establish a mechanism for its efficient application. Legal framework harmonised with the acquis communautaire, without an efficient establisment and funcioning of institutions for their application, tends to be insufficient.