Creation of a digital single market is one of the European Commission’s key priorities

It clearly follows from the communication “A Digital Single Market Strategy for Europe”, which was issued by the European Commission in May 2015 that the creation of a digital single market is currently one of the Commission’s key priorities. This goal shall be achieved, among others, by even greater harmonisation of the Member State’s legislation and removing the differences between national laws with regards to telecoms, management of radio waves, copyright and, last but not least, consumer protection regulation.

The EU has already made some significant progress within the latter area and one of the crucial milestones was the implementation of the Directive 2011/83/EU (Consumer Rights Directive). However, the language requirements applicable to consumer contracts are clearly not covered in the Directive and thus this issue is dealt with on a national legislation level. Consequently, regardless of the European efforts towards the unification of the relevant legal framework, internet entrepreneurs, who operate in the B2C model, face the need to adapt their internet platforms to local language requirements. Below we present a brief comparison of the relevant legislation in Poland and Czech Republic, which demonstrates that the approach of the Member States to this issue may vary and in practice a translation of an entire website or communication only in the local language may not always be necessary.

Poland

In Poland the requirement to use the Polish language in communication to consumers does not give rise to much controversy. Pursuant to Article 7 of the Act of 7th October 1999 on the Polish Language in a legal relationship with consumers, one has to use the Polish language, if at the time of the contract’s conclusion, the consumer is domiciled on the territory of Poland and the contract is or will be performed in Poland. Furthermore, the provision clearly states that the Act is applicable to documents and information, which need to be issued or provided under Polish law. The Act provides some examples of documents/information which have to be in the Polish language and which e.g. include the names of goods and services, offers, guarantee terms, invoices, warnings, manuals or information on the product features, including advertisements. There is one exception which applies to warnings, manuals and the necessary information on products features – they may be presented in a graphic form, provided however that this is commonly intelligible.

Using the Polish language is also required by the provision of the Polish Civil Code regarding a sales contract. Pursuant to Article 5461 § 1 of the Civil Code according to which the seller is obliged to provide the consumer with clear, intelligible, and unambiguous information in the Polish language, which should be sufficient to make proper and full use of the sold goods. Such information shall, in particular, include: the kind of item, the producer or importer, product safety labelling and conformity required by separate legal provisions, information concerning marketing authorisation in the Republic of Poland and, depending on the type of goods sold, their energy consumption value and other data referred to in separate legal provisions. In addition the Seller is obliged to provide the buyer with use and maintenance manuals in a Polish language version. A similar obligation applies to the guarantee document, though Polish is not required with regards to trade marks, origin names and standard technical and scientific terminology (Article 5771 § 1 of the Civil Code). However, under Polish law a sales contract does not include provision of services and hence the above rules would be relevant to on-line shops and would not apply to internet service providers.

Furthermore, more detailed requirements may result from the relevant sector regulations regarding specific products or services. By way of an example one may mention Article 5 Section 3 Regulation of the Polish Ministry of Economy of 5th April 2011 on the principal requirements regarding toys, which implements Directive 2009/48/EC (Toy Safety Directive) and which requires the manufacturer or an authorised representative to place, among others, type name, batch serial or model number or other element allowing their identification directly on the toy (or on the packaging or an accompanying document, if not possible). Considering the above remarks regarding the general obligation to use Polish in communication with consumers, one has to conclude that each toy being sold in Poland to a non-professional buyer needs to bear its type name in Polish. However, in fact this is just an interesting example of the failures within the implementation process: the point is that Article 5 Section 3 Regulation is based on the official translation of the Toy Safety Directive which mistakenly mentions “type name, batch serial or model number”, whereas the original wording of the Article 4 Section 5 of the Directive in English says “type, batch, serial or model number”. As a result of this translation error, Polish law requires sellers to put the type name on toys (and this information needs to be in Polish of course), which goes clearly beyond the requirements of the Toy Safety Directive.

Consequences of non-compliance in Poland

Using any other language than that of Polish in communication with Polish users may primarily result in a failure to comply with the obligation to provide the consumer with the required information (i.e. information provided in a foreign language will be deemed as not provided at all). This may have very serious consequences for entrepreneurs, e.g. the withdrawal term will be extended by 12 months, the consumer is released from both obligation to cover the costs of returning the goods, as well as from the potential liability for their diminished value. An even more severe sanction is the contract with the consumers being perceived as not concluded at all, when the entrepreneur fails to ensure that the consumer, when placing an order, explicitly acknowledges that the order implies an obligation to pay (e.g. through a legible button labelled with the words “order with an obligation to pay”). There is no doubt that if the required information will be provided in English (or any other foreign language), confirmation of the consumer of his/her awareness of the financial consequences of the deal will be ineffective under Polish law.

Furthermore, there is some risk that communicating with a Polish user in foreign languages may be considered as misleading behaviour which meets the criteria of unfair market practice. The point is that the President of the Polish Office for Protection of Competition and Consumer may under certain circumstances, classify this as a practice which infringes collective consumers’ interests which potentially may result in imposing a financial penalty of up to 10% of the turnover from the previous financial year.

Last but not least, failure to use the Polish language in relationships with consumers or to inform accordingly is a misdemeanour punishable by a fine up to PLN 5,000 both under the Act on the Polish Language and Article 139b of the Misdemeanour Code.

The Czech Republic

In the Czech Republic the issue in question is more complex than in Poland and the consequences of using foreign languages in communication to customers might therefore be somewhat uncertain. Czech legislation does not explicitly provide for domestic language to be used when making commercial transactions or concluding contracts in general. Despite this fact, certain limitations have been set by judicial decisions, for example on the field of labour law, where the Supreme Court stated that the content of a legal act, regardless of language, must be comprehensible for the person to whom it is addressed (21 Cdo 1760/2007). More importantly in relation to business matters, pursuant to Article 11 of the Czech Consumer Protection Act adopted in 1992, which is lex specialis to Czech Civil Code, entrepreneurs are obliged to provide specific information in Czech language in order to ensure that the customer’s interests are fully protected. This information includes, for example, risks resulting from improper use of goods, product details, supplier’s details or handling complaints. If its nature requires so, the offered product must also be accompanied by a Czech user manual.

As a hypothetical example, a foreign English-speaking entrepreneur creates an online store with the intention to sell products specifically to Czech customers. The “.cz” domain name is registered, but for some reason (e.g. high translation costs), the whole web content together with email communication remains written in English. It is disputable whether the user could claim that the entrepreneur did not comply with the information obligations because it was provided only in English and could therefore insist on withdrawing from the contract within the extended 12 month period on account of the fact that he did not understand the information on withdrawal terms.

According to the Czech Civil Code, if there is any doubt, the burden of proof rests with the seller who must prove that the customer was provided with all the necessary information mentioned in the Civil Code. The seller shall for example make the buyer familiar with contractual language options, delivery costs, payment methods, contract withdrawal and the like. Such information shall be provided clearly and comprehensibly in the language of the contract to be concluded.

The entrepreneur could argue that the customer must have been well acquainted with the terms and conditions, because during the process of order confirmation he accepted the terms and conditions, e.g. by checking the “I agree to the terms and conditions” box with words “terms and conditions” being hyper-linked accordingly. Czech authorities generally consider this operation binding and sufficient, even for instance in the case of a personal data processing agreement, therefore the court might be of the same opinion. Moreover, after the implementation of the Consumer Rights Directive, entrepreneurs are obliged to provide the customer not only with one counterpart of the main body of the contract, but also with the wording of the terms and conditions in some tangible form in order to avoid the situation, where a consumer has not been sufficiently informed. In addition, the customer voluntarily chose to buy the goods on the basis of an English contract, even though the same purchase could have been made in one of many online shops, which communicate with buyers in the Czech language. This may indicate that the customer’s lingual ability is sufficient for a safe conclusion of a contract in English.

On the other hand however one needs to consider the so-called “average customer formula” used both on a European and national level. With this approach in mind, an average consumer is described as “reasonably well informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors”. The results of Special Eurobarometer 386 Survey from 2012 confirms that only 19% of Czech people are able to understand English communication online, which leads to the conclusion that an average Czech customer is not able to enter into English contracts. Targeting an identifiable group of people in the English language, where it is clear that the average member of this group is generally not sufficiently familiar with English, may give rise to certain doubts as to the legality of such practice.

In addition, further circumstances surrounding the conclusion of contracts might also come into consideration. If the online store in question was the only place to buy specific unique goods and the customer did not have the opportunity to enter into a contract in Czech, then such condition could be deemed disadvantageous to him. The seller’s argument “if you don’t understand – shop elsewhere” would be void in this case.

Consequences of non-compliance in Czech Republic

Failure to meet the requirements stipulated in Article 11 of the Czech Consumer Protection Act can be considered as an administrative offence, for which Czech Trade Inspection Authority (Česká obchodní inspekce) may impose a financial penalty up to maximum amount of 3.000.000 CZK, but usually lower fines are imposed, depending on the factual impact that the goods or services have on the customers.

Apart from fines, entrepreneurs may face other consequences which may impact on their contractual relationship with the consumer. E.g. if the seller fails to prove that he/she has properly provided the customer with information concerning contract withdrawal, the period for withdrawal might be extended by 12 months with the seller bearing all costs and risks connected with it, the same as is with Polish legislation. Potential non-compliance with information obligations may, under certain circumstances, result in the consumer not being bound by the contract at all, as is the case in Poland as well.

Conclusions

The above comparison confirms that the approach of the Member States with respect to language requirements in B2C transactions may vary and the differences may in practice impact on the business of on-line entrepreneurs operating in more than one EU-country. Whereas in Poland the requirement to use Polish in transactions with consumers is very clear leaving virtually no margin for flexibility and hence the only option is to comply with it, the position of the Czech law is definitely less conclusive and is based on more general considerations (i.e. the need for transparency and clarity in communication with non-professional users).

However, even though Czech law on one hand doesn’t firmly stipulate the usage of Czech language in communication with customers, it sets out the obligation to provide certain information in Czech only. Consequently, one could consider only translating the mandatory part of the website data into Czech, leaving the rest linguistically untouched. On the other hand bearing in mind that, if there are any disputes over the fulfilment of information obligation the burden of proof clearly rests with the entrepreneur and also that customers are an exceptionally protected category, such solution could prove fairly risky in practice and thus it would be much safer to communicate all information to the customer in a clear and demonstrable manner allowing for no potential disputes in the future.

Quelle: TaylorWessing (www.taylorwessing.com)