Guide through the Albanian consumer law

Guide through the Albanian consumer law for Consumer Protection Commission in handling consumer complaints

GUIDE THROUGH THEALBANIAN CONSUMER LAWGuidance for Consumer Protection Commission in handlingconsumer complaintsDECEMBER 2017

Title of the publication:Guide through the Albanian consumer lawGuidance for consumer protection commission in handling consumer complaintsPublished by:© Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbHFor the publisher:Blerina Raça, Drejtues ProjektiProjekti i GIZ “Mbështetje për haromonizimin e legjislacionit ekonomik dhe tregtar me acquis-në e BE-së“Rr. Ismail Qemali, No 3, Kati 3, Tirana - AlbaniaT: +355 42273424;E: [email protected]: www.giz.de/albaniaAuthor:Dr. Mateja DurovicDesign and layout:Studio TartariCover image: created by FreepikTirana, 2017This document has been compiled by Dr Mateja Durovic, international expert, with the financial assistance of German DevelopmentCooperation, implemented by the “Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH, in the frame of the project“Harmonization of economic and trade legislation with EU acquis. The views expressed herein are those of expert and therefore cannot inany way be taken to reflect the official opinion of GIZ. CIP Katalogimi në botim BK Tiranë Durovic, Mateja Guide through the Albanian consumer law: guidance for consumer protection commission in handling consumer complaints / Mateja Durovic. – Tiranë: Tartari, 2018; 70 pgs.; 21.59x27.94cm. ISBN 978-9928-4390-7-9 1.Konsumatorë 2.Mbrojtja 3.Ligji i konsumatorit 4.E drejta dhe legjislacioni 347.7(496.5)(094.5) 346.548(496.5)(094.5)

List of abbreviationsADR Alternative Dispute ResolutionEU European UnionLCP Law nr. 9902, dated 17.04.2008 “On the consumer protection”, amendedTFEU Treaty for the Functioning of the European UnionUCPD Unfair Commercial Practices DirectiveECJ European Court of JusticeCPC Consumer Protection Commission

 



  

        Guide through the Albanian consumer law 1. Why this legal Guide?Consumer law represents a relatively innovative area of law in Albania. However, theexistence of the Law on Consumer Protection in writing does not guarantee that thegoals pursued by that Law will be achieved. Law on paper must be made law inaction. In order to be effective, a particular piece of legislation must be known,understood, referred to and actually enforced.Consumer represents a key player at the market. In his relationship vis-à-vis trader,consumer is a weaker party, in particular when it comes to bargaining power,knowledge, skills and experience. This is why the concern for protecting andpromoting the interests of consumers on the market place is universal. Attempts todo so have multiplied and diversified worldwide during the last four decades. Specialattention to consumer protection was traditionally given by the European Union whichconsequently built the most complete and advanced global system of consumerprotection.This has led to the following major developments, which can be viewed as the pillarsof consumer protection policy:‐ the adoption of an adequate and comprehensive legislative framework exclusively dedicated to consumer protection;‐ the setting-up of the State institutions specifically in charge of consumer affairs, both for law and policy making as well as for enforcement;‐ the emergence of independent, non-governmental and non-profit organisations, consumer organisations, whose exclusive or main social purpose is to promote and fight for consumer rights and interests.There are clear policy considerations which justify that consumer protection policyshall be regarded as a priority concern on any national market. The recent push formaking consumer markets more and more global and promoting a free circulation ofpeople, goods and services across national borders creates additional reasons fordeveloping a strong consumer policy both at national and international levels.2. Why consumer protection law and policy in Albania?The above policy considerations make even a stronger case for consumer protectionpolicy to be given priority attention in economies in transition. Besides, a pan-European context and the European integration process of Albania and its aim tobecome an EU Member State, requires from Albania to align its consumer protectionlegislation and standards with the ones applicable in Europe.2.1 The need to protect consumers in economies in transitionIn transition economies, the unemployment and low-income contrast with theincrease in the price of most goods satisfying the basic needs of consumers.Following the economic reforms, products become more widely available although athigher prices. The quality of these products also becomes more suspicious. 7

December 2017Structural adjustment programmes may constitute actual threats on consumerwelfare. Society becomes more and more dual because of these wider processes ofchange, with a few privileged consumers being protected and taking most of thebenefits from free trade, new technologies, consumer choice and generousconsumer protection laws. At the same time, a wider and wider category ofconsumers find themselves marginalised or excluded from the benefits of consumersociety.Markets in transition are characterized by significant information deficits whichinclude inadequate indication of prices, incomplete labelling of products, absence ofinstructions and warnings, labels written in a foreign language, stipulation of illegibleand non-understandable contract terms, warranty conditions and consumer redressprocedures, limited comparative testing facilities and publications, overall presenceof misleading advertising, aggressive behaviour of traders, etc. These deficits areaggravated by a low awareness of the population about consumer issues andconsumer rights, and by the fact that consumer groups, where they do exist, remainweak and without sufficient resources and funding.Most importantly, consumers in economies in transition are faced with low quality orunsafe products and/or services in many of their purchases. Consumers lowpurchasing power often obliges them to buy goods that are not expensive, but of apoor or suspicious quality, and which are sometimes illegally put on the market. Theimport of dangerous or substandard products coming from more regulated countriesis another reason for this safety gap.Other relevant deficit relates to the lack of effective enforcement of the legislation inplace. Namely, enforcement, or rather lack of efficient enforcement, representsparticularly weak point of systems of consumer protection in countries in transition. Intransition economies, access to law itself and to legal expertise is difficult, judgesremain unaware of new developments taking place under the rapidly changingmarket conditions and cost is likely to constitute a most decisive barrier to access tojustice. Market surveillance authorities are not allocated the human and financialresources to complete their tasks. Typically, foreign companies may not hesitate, inpractice, to take advantage of such gaps and to use aggressive sales methodspreying on the vulnerability of poorly protected consumers.Therefore, the position of consumers on the market place in economies in transitioncalls for a more vigorous remedial action. There are valid grounds to fear thatconsumers may lose confidence in market reforms if the benefits that they canexpect from the new market structure are not made more real. This reaction may beespecially strong in the transition years when the benefits of a market economy seemnot enough to most citizens, as inflation and unemployment rates soar, while a richminority prospers. Effective consumer protection laws can help counter anti-marketattitudes by giving consumers reason to believe that this aspect of the system, whilenot perfect, strives to be fair.By treating the consumer as an essential actor or partner in the marketplace to whoma set of fundamental rights is conferred, consumer law and policy actually contributesto the ideals of democracy, citizen participation and distributive justice that shouldguide ongoing reforms in transition economies. 8

        Guide through the Albanian consumer law2.2 The EU pre-accession rationale and the introduction of the consumer“Acquis consummataire” into the Albanian legal orderFirst, the accession process implies that the laws of the country looking for accessionbe made compatible to the ones of the countries which are already members of theEuropean Union. Chapter 23 of the Annex to the EU White Paper of 10 May 1995 onthe Preparation of the Associated Countries of Central and Eastern Europe forIntegration into the Internal Market of the Union (COM(95) 163 final/1) describes indetail the approximation of laws to be carried out by the associated countries in theconsumer field in preparation for accession to the European Union.Key measures concern the following consumer subject matters: product safety (bothgeneral and specific measures), consumer sales and warranty obligations,denomination, classification, labelling and packaging of products destined for theconsumer, indication of prices of food and of non-food products, misleading andcomparative advertising, consumer credit, unfair terms in consumer contracts,package travel, contracts negotiated away from business premises, distancecontracts (including e-commerce), trade practices and marketing methods, theprotection of purchasers in contracts relating to the purchase of a right to utilise oneor several immovable properties on a timeshare basis, actions for injunctions andalternative disputes resolution schemes.All these measures constitute a so-called “Acquis consummataire”, which Albania, asevolved today, is required to introduce into its legal system in order to put itsconsumer legislation in conformity with the one adopted at the level of EuropeanUnion. The White Paper also stresses the importance of credible and effective lawenforcement and sets out a range of conditions which are regarded as necessary forthe proper operation of consumer legislation. These conditions are:‐ granting consumers fundamental rights‐ setting-up an adequate institutional structure in charge of consumer affairs‐ setting-up consultative procedures which will represent the consumer interest and ensure consumer participation in the decision-making process‐ developing information and education campaigns‐ granting consumers efficient redress mechanisms‐ helping to ensure the development of non-governmental consumer organisations.Any country willing to become an EU Member States is also bound to implement theEU membership conditions defined by the European Council in 1993 in Copenhagen(the Copenhagen criteria). Accordingly, to achieve full membership, a country mustensure:1) The stability of institutions guaranteeing democracy, the rule of law, human rightsand respect for and protection of minorities;2) The existence of a functioning market economy as well as the capacity to copewith competitive pressure and market forces within the Union;3) The ability to take on the obligations of membership including adherence to theaims of political, economic and monetary union.The Thessaloniki Summit of the European Council of 2003 confirmed the dedicationof the European Union to accepted Western Balkan countries as EU Member States 9

December 2017by pointing out to ‘determination to fully and effectively support the Europeanperspective of the Western Balkan countries, which will become an integral part ofthe EU, once they meet the established criteria’. In such a manner, the EuropeanCouncil confirmed that the fulfilment of the Copenhagen criteria is a prerequisite forthe accession of the Western Balkans countries, including Albania, to the EuropeanUnion. Harmonization of Albanian consumer law with EU Law represents part ofthese conditions.Namely, since early seventies of the twentieth century, the European Union hasstarted promoting an active consumer protection policy, even when the need forprotecting the consumer was not explicitly recognised under the treaty of Rome; in1993 a new title devoted to consumer policy was finally introduced into the treaty, thescope of which was extended by the revision of the Treaty made in 1997 inAmsterdam.Under present EU law, consumer policy is referred to under Article 169 of the Treatyfor the functioning of the European Union (TFEU). However, legal initiatives towardsconsumers may also be taken based on Article 114 TFEU. This refers to measuresneeded for the creation of an effective internal market and explicitly requires thatsuch measures provide consumers with a high level of protection on the marketplace. Majority of the European directives in consumer protection are adopted on theground of Article 114 TFEU. This is the case with all major directives such Directive2005/29/EC on unfair commercial practices or Directive 2011/83/EU on consumerrights. Only few, such as Directive 98/6/EC on price indication, were adopted basedon Article 169 TFEU. This approach may also the relevance of consumer protectionfor establishment and strengthening of the internal market.The Directorate General for Justice (DG JUST) and the Directorate General Healthand Consumer Protection (DG SANCO) within the European Commission are thetwo DGs in charge of preparing and promoting Union legislation in the field ofconsumer protection. The competence among them is shared. Consumer policy ismade according to multiannual plans of action, the first of which was adopted in April1975 (the so-called Preliminary Action Plan for the protection and information ofconsumers). This first strategy document confirms the need to guarantee toconsumers a minimum mandatory social protection within the framework of theprocess of creating the internal market of the European Union.The 1975 Action Plan has been followed by several other action plans, adopted inintervals of three or five years. These programmes provide the foundations for anactive and ambitious policy of consumer protection at Community level and establishthe legislative framework required for this purpose. The measures to be taken areidentified, deadlines established for their adoption and in each case, a list of thepriority questions is drawn up. The main policy directions are envisaged bymultiannual consumer programmes or strategies. Currently valid is the ConsumerProgramme for the period 2014-2020.The main pieces of European legislation in the area of consumer protection include: Directive 2011/83/EU of 25 October 2011 on consumer rights Directive 2008/48/EC of 23 April 2008 for the harmonisation of laws, regulations and administrative provisions of Member States concerning consumer credit. Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts 10

        Guide through the Albanian consumer law Directive 2008/122/EC of 14 January 2009 on timeshare contracts. Directive 99/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods. Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market. Directive of 23 September 2002 concerning the distance marketing of consumer financial services. Directive 98/6/EC on price indication Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market. Directive Directive 2015/2302/EU on package travel, package holidays and package tours. Directive 2009/22/EC of 23 April 2009 on injunctions for the protection of consumer interests Directive 2013/11/EU on alternative dispute resolution of consumer disputes Regulation 524/2013 on online dispute resolution of consumer disputes Regulation No. 2006/2004 of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation)2.3 The core issues of consumer law and policyWhat is provided below is the list of the most common matters of interest and priorityfields of action of traditional consumer policy. Consumer education: making consumers aware of their responsibilities, rights and obligations; helping them in playing an active role on the market place; protecting consumers from deception and fraud; providing them with effective access to law and redress mechanisms; helping them in making purchase decisions and budget allocations. Consumer information and advice (about products and services, product- or service-related risks and accidents, contract terms, prices and tariffs, laws and regulations, etc): product labelling and packaging, warnings and notices for use, disclosure of contract terms, granting cooling-off periods, prohibition of misleading advertising, setting up a network of Consumer Advice Centres, promoting consumer information through independent sources such as consumer groups (namely through comparative testing), development of public awareness campaigns, etc. Protection of consumers’ economic interests: prevention of unfair trading, advertising or sales methods; elimination of unfair terms from consumer contracts; regulation of speculation on prices; regulation of consumer credit, home loans and other financial transactions; post-sale warranty obligations; promotion of quality standards; etc. Consumer safety : to protect consumers from products or services which are dangerous or unsafe through preventive measures (both pre-market and post- market ones, such as information requirements, quality insurance schemes, control obligations on the production and distribution processes, product 11

December 2017 withdrawals and recalls, exchange of information systems and market surveillance provisions) as well as corrective ones (giving access to consumers to adequate and easily accessible compensation schemes, namely through strict liability rules); the scope of this component is quite comprehensive by itself as it does not concern only general product and services safety legislation, but all product and services sectors (food, drugs, cosmetics, toys, cars, household appliances, chemical substances, health care, transport, leisure and sports activities, etc). Consumer redress: to provide consumers with speedy and accessible means to enforce their rights; to define adequate civil, criminal and administrative remedies; to grant consumer groups legal standing or the right to take collective action before courts and tribunals; to develop independent and efficient alternative disputes resolution schemes (ADR’s). Representation of the collective interests of consumers: promoting and providing support to consumer groups; increasing the participation of consumer representatives to the decision-making process; setting-up consultation bodies, etc. Access to the services of general economic interest, i.e. providing all consumers effective access to basic goods and services such as the provision of health care, food, housing, water, energy, telecommunications, transport and basic financial services.2.4 The integration policyWhile consumer policy has become a separate field of action, it also has directconnections with several other major policies. Consumer policy is horizontal bynature, as consumers may be affected by most EU Member State’s policies.Consumer protection policy extends across economic and social policies withoutbeing limited to any particular one of these. Consumer law extends across traditionalcategories of law, without being part of any particular one of these.The impact of admitting the horizontal dimension of consumer policy is a two-fold: firstly it requires that consumer protection considerations be considered by policy- makers when defining or implementing other state policies; secondly it calls for the creation of inter-institutional mechanisms or structures which will make integration and coordination with other Ministries or State bodies possible and effective.The principle is given even greater attention by the Treaty of Lisbon, in which itbecomes a general principle of European law (Article 12 of this Treaty). Illustrationsof such closely related fields are food safety, agriculture, competition, financialservices, public utilities (telecommunications, energy, transport), tourism andenvironment protection.Moreover, Article 38 of the Charter of Fundamental Rights of the European Union, asthe most important EU source for protection of human rights, identifies right to beprotected as a consumer as one of the fundamental rights of any person in the 12

        Guide through the Albanian consumer lawEuropean union and highlights the importance that interests of consumer protectionshall be taken into consideration while defining other policies.The rules of Albanian consumer law will always apply to any business-to-consumerrelationship, i.e. a relationship where one party is a trader and the other party is aconsumer. Typically, this will be a contractual relationship, but the scope ofconsumer legislation materially overcomes the contractual relationship and its scopeof application is also extra-contractual as it is the case, for instance, with certainforms of unfair commercial practices when consumer law shall equally be applied.For the understanding of the scope of application of provisions of consumer law, it isessential to understand what is meant under the notion of trader and what under thenotion of consumer. The trader is defined as any natural or legal person who isacting for purposes relating to his trade, business, craft or profession and anyoneacting in the name of or on behalf of a trader. Importantly, it is irrelevant whethertrader is privately or publicly/State owned, i.e. the type of ownership of trader doesnot limit and shall not prevent the application of consumer law regime.A consumer means any natural person who is acting for purposes which are outsidehis trade, business, craft or profession. In case of the so-called dual purposestransactions, when consumer is acting both inside and outside his business, forapplication of consumer law regime it shall be verified that this component outsidehis trade, business, craft or profession prevails. For instance, in case of a consumerwho is a practicing lawyer and who buys a computer that he plans to use both for hiswork and non-work, free-time purposes, consumer regime would probably not beapplicable since a lawyer would definitely use that computer more for business thanfor non-business purposes. Contrary to this, a lawyer employed in a company buys acomputer for his home that sometimes he may use to write some business-relatedemails, would probably be covered with a consumer law regime. In any case, thisshall always be verified on case-by-case basis in accordance with the circumstancesand characteristics of each case.2.5 Some of the landmark ECJ cases related to the consumer lawIn the famous case of Cassis de Dijon (Case 120/78 Rewe Zentral vBundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979]), where theCourt pointed out that a disputed German rule which prohibited advertising of Frenchblackcurrant liquor in Germany was contrary to the European rules on freemovement of goods since the same goal of protection of consumers can beperformed through introduction of the obligation to inform on alcohol content and thecountry of origin of the product. Accordingly, the ECJ considered that the IMPOSDinformation requirements were considered to be capable of achieving sameprotective effects as German rules on prohibition, but they would be less restrictivesince advertising of the liqueur would be allowed, followed by provision of all relevantinformation.Equally, the Court underlined the significance and potentiality of the information inthe Petillant De Raisin case (Case 179/85 Commission v Federal Republic ofGermany [1986]). This case dealt with the marketing of a French drink Pettilant DeRaisin which is traditionally packed in a specific kind of bottle, but whose 13

December 2017advertisement in that kind of bottles was not allowed in Germany due to German fearthat that type of bottle might mislead consumers. Consequently, it was pointed out bythe ECJ that total prohibition of advertising shall be substituted with obligation toprovide information which will thus protect consumers.A similar approach was taken in the case relating to the prohibition by the Italiannational on advertising of cheese with insufficient fat content while assessing itsjustification on the basis of fair trade and consumer protection (Case C-210/89Commission v Italy [1990]). Namely, the Court held that it would be sufficient forItalian authorities to impose mandatory disclosure requirement on “the actual fatcontent of cheeses to enable consumers to make their choice in full knowledge of thefacts”3. Substantial provisions of Albanian Consumer Law3.1 The Rules on Unfair Commercial Practices3.1.1 Wide scope of applicationThe rules on unfair commercial practices are the set of the most powerful andcomplete rules of the entire consumer law. They enable protection to consumer froma widest possible number of trader’s engagement in unfair commercial practices.Basically, a general rule is that any breach of consumer rights and consumerlegislation by trader will (also) represent a form of unfair commercial practice. Therules from unfair commercial practices are fully transposed into Albanian law fromDirective 2005/29/EC on unfair commercial practices. The main objective of theserules is to secure a general advanced level of fairness in business-to-consumerrelations at the market. In accordance with such an approach, any commercialpractice which is found to be unfair shall be prohibited and adequately sanctioned.A commercial practice is understood as any act, omission, course of conduct orrepresentation, commercial communication including advertising and marketing, by atrader, directly connected with the promotion, sale or supply of a product toconsumers. It is obvious that the notion commercial practice is defined in anextremely broad manner that covers not only active, but also passive behavior oftrader, i.e. trader’s failure to do something, which may show how extremely broad thescope of application of these provisions is. It also covers both the contractual andextra-contractual relationship between trader and consumer.The fairness of a commercial practice is always to be assessed in line with the strictlyimposed three-step mechanism for assessment of fairness of commercial practiceand the average consumer as the principal benchmark.3.1.2 The concepts of an average and a vulnerable consumerThe average consumer is the main benchmark for assessment of fairness of acommercial practice. The average consumer is a standard of expected behaviour ofan Albanian consumer at the market; it normatively provides how a consumer istypically seemed to behave while making his economic decisions. Namely, for acommercial practice to be deemed unfair, a necessary condition is that it has certain 14

        Guide through the Albanian consumer laweffects on a consumer, that it impairs his free and informed choice. For assessmentof such a capacity of a practice, an average Albanian consumer is taken as ayardstick whose behaviour and reactions the competent authority shall always bearin mind while deciding whether a commercial practice is unfair.An average consumer is defined as a reasonably well-informed and reasonablyobservant and circumspect consumer. This definition shows well that the objective ofconsumer protection is not a casual, reckless consumer which does not think muchwhile acting at the market, which does not collect information or compare differentproducts, but a consumer who puts some efforts, who is constantly looking for theinformation and who behaves carefully while acting at the market.Consequently, a competent authority shall, while assessing whether there was, forinstance, a case of misleading omission as a form of unfair commercial practice, i.e.whether trader disclosed all relevant, material information in his advertisement,always take an average consumer as a model to verify what are the materialinformation he needs to make an informed and rational economic decision andwhether these pieces of information are presented by trader in a clear andunderstandable manner to consumer so that he can really use them.The average consumer shall typically represent a model of an average Albanianconsumer, i.e. an average member of total group of Albanian consumersirrespectively of their characteristics and particularities. However, in cases when acommercial practice is directed to a group of consumers, for example the advertisingof male shaving equipment, as an average consumer shall be taken an averagemember of a group towards which a particular commercial practice is directed, i.e. anaverage man above the age of fifteen. In these cases, the expected behaviour ofconsumer is equal to the general average consumer of that particular group, i.e. thatit is a reasonably well-informed and reasonably observant circumspect consumer,but it is only focused on a defined smaller group of consumers.However, besides this general criterion of an average consumer, the rules on unfaircommercial practice have also brought the standard of a vulnerable consumer as asubsidiary standard. Namely, when a commercial practice is directed towards agroup of consumers which are particularly vulnerable due to some of theircharacteristics, due to their age, credulity, physical or mental infirmity, fairness of acommercial practice shall always be assessed from a perspective of an averagemember of such a group and not of a general group of consumers.Consequently, the Albanian Consumer Protection Commission shall take, as anexpected standard of behaviour, the behaviour of consumer who is more vulnerableand sensitive to commercial tactics of trader than in case of a practice directedtowards an ordinary average consumer. Therefore, in case of vulnerable consumer,imposed fairness requirements on trader shall be stricter. Trader must not profit fromconsumer’s vulnerability that is simply considered as unfair. In such a manner,consumer law shows perfectly well its social justice component, how it is aimed toprotect those who are particularly weak.The examples of commercial practices directed towards vulnerable consumer includeforms of advertising aimed at children which are not aware of their meaning and whocannot properly respond to commercial tactics of traders. For instance, commercialcommunication messages which are made to affect children to persuade their 15

December 2017parents to acquire them the advertised toy. Equally, advertising of products oraggressive practices directed to elderly population shall be taken as commercialpractices whose fairness shall be assessed on the ground of a vulnerable consumersince empirical evidence show that they are more naïve and sensitive than regularaverage consumers.3.1.3 Mandatory three-step mechanism for assessment of fairnessFor the assessment of fairness of a commercial practice, a three-step mechanismshall always be used. Consequently, the Albanian competent authority (theadministrative authority or the Court) has always to follow these three steps in astrictly hierarchically defined order provided by the European Directive 2005/29/ECon unfair commercial practices as transposed in the Albanian law. The order ofapplication of these steps is very strict and no exceptions are allowed. Each of thesesteps will be a subject to a detailed subsequent substantial examination in thissection of the Guide.The first step shall be to verify whether a commercial practice can be subsumed lessthan one of thirty-one exhaustively listed concrete examples of commercial practiceswhich are always unfair, under any circumstances. This will be the case, for instance,with advertising of a product, falsely claiming that it may cure illnesses, malfunctionsor malformations, when the trader claims that a special herbal tea cures flu, whenthis is actually not true. Another example is trader’s insisting on consumer topurchase a product claiming that in case consumer does not do so, trader’s life or jobwill be in jeopardy, e.g. that he must sell a vacuum cleaner to the consumer,otherwise trader will lose a job since he has a daily quota he needs to fulfill and he isa father of five small children.If a commercial practice cannot be subsumed under any of these thirty-oneexhaustively listed concrete examples of commercial practice which are alwaysunfair, the second step Albanian competent authority shall follow is to verify fairnessof a commercial practice on the ground of one of three small general clauses. Thoseare the clauses on misleading actions, misleading omissions and aggressivepractices. Their main purpose is to secure that a commercial practice does notendanger consumer’s potentiality to make an informed and free decision, i.e. thatconsumer’s economic decision to buy or use a product is made on the ground ofpossession of all relevant information, which have to be true, and without improperintrusion of trader into the freedom of consumer’s decision-making process.Eventually, if a commercial practice is not found to be unfair on the ground of any ofthe three small general clauses as the second step, the last, third step to be used isto assess whether a commercial practice is unfair on the ground of a general fairnessclause. A general fairness clause is the most abstract mechanism for assessment offairness of a commercial practice of the three steps. Accordingly, for a practice to beunfair on the ground of general fairness clause, it needs to fulfill two cumulativeconditions: to be contrary to the requirements of professional diligence and tomaterially distort economic behaviour in relation to a product of an averageconsumer. Therefore, competent authority must check that both conditions arefulfilled.In case when a commercial practice passes the tests provided by all three stepswithout declaring it as unfair, such a practice of trader is considered as fair and, thus, 16

        Guide through the Albanian consumer lawlegal and allowed.STEP 1: THIRTY-ONE CONCRETE EXAMPLES OF COMMERCIAL PRACTICEWHICH ARE ALWAYS UNFAIRThe Albanian legislation enlists thirty-one concrete most common examples ofmisleading and aggressive practices which shall always, in any case and under anycircumstances, be considered as unfair, and thus prohibited and sanctioned. Aspointed out above, misleading practices are those which endanger consumer tomake an informed choice and aggressive practices are those which preventconsumer to freely adopt his economic decision.The forms of thirty-one commercial practice which are always unfair, as enlisted inthe Albanian Law on Consumer Protection, are:1) Claiming to be a signatory to a code of conduct when you are not.Example: a trader that sells fruits claims to be a member of an Association ofproducers of organic fruits, when he is not part of it. This provision protects theconsumer from the misleading statement related to the codes of conducts as formsof private regulation developed by the group of traders united in various associationssuch as the Association of producers of organic fruit or the Association of travelagencies.2) Displaying a trust mark, quality mark or equivalent without having obtained thenecessary authorisation.Example: the trader which uses EU or national eco-labels without authorisation. Theproducer of a toy adds on the packaging a claim that the toy was 'products safetytested' by a renowned certification body even though the certification body has onlytested the producer's quality system.3) Claiming that a code of conduct has an endorsement from a public or other bodywhich it does not have.Example: the Association of supermarkets claims that their code of conduct wasendorsed by a national consumer organisation, when it is not true.4) Claiming that a trader (including his commercial practices) or a product has beenapproved, endorsed or authorised by a public or private body when he/it has not ormaking such a claim without complying with the terms of the approval, endorsementor authorisation.Example: a trader claims that a product he offers for sale was 'safety tested' by arenowned certification body whilst it was not.5) Making an invitation to purchase a product at a specified price without disclosingthe existence of any reasonable grounds the trader may have for believing that hewill not be able to offer sufficient supply or to procure another trader to supply theproduct or an equivalent product at that price for a period that is, and in quantitiesthat are, reasonable having regard to the product, the scale of advertising of theproduct and the price offered (“bait advertising”)Example: a trader luring consumer with the attractive special offers or discounts,when the trader knows or should know that he can either not offer these products at 17

December 2017all or only an inadequate number thereof. Moreover, products are offered underspecial conditions without the trader making it clear that the offer is valid for only alimited quantity of products or limited period.6) Making an invitation to purchase products at a specified price and then:(a) refusing to show the advertised item to consumers; or(b) refusing to take orders for it or deliver it within a reasonable time; or(c) demonstrating a defective sample of it, with the intention of promoting a differentproduct (“bait and switch”)Example: a shop-owner advertises a camera of a renowned German producer for thetotal price of 100 EUR. However, when the consumer goes to the shop to buy thiscamera, the trader:(a) refuses to show that camera to the consumer; or(b) refuses to sell it to the consumer, or(c) shows only a defective sample of that camera.All these three alternative actions must be done by the trader with the intention ofinducing the consumer to buy another product, e.g. a camera other than theadvertised one.7) Falsely stating that a product will only be available for a very limited time, or that itwill only be available on particular terms for a very limited time, in order to elicit animmediate decision and deprive consumers of sufficient opportunity or time to makean informed choice.Example: an offer which states: Buy the advertised mobile phone in the next 24hours and you'll pay half the normal price! Don't delay! Offer expires today atmidnight. This product will never be offered again. Buy now! In case such an offeractually continues also after the expiry of the mentioned period of time, this conductwould amount to a black-listed commercial practice.Likewise, the example of this unfair commercial practice would also be an onlineadvertisement: \"Book now, last room available\" whilst in reality several more roomsare still available.8) Undertaking to provide after-sales service to consumers with whom the trader hascommunicated prior to a transaction in a language which is not an official language ofthe Member State where the trader is located and then making this service availableonly in another language without clearly disclosing this to the consumer before theconsumer is committed to the transaction.Example: the trader claims that buying any of his computers includes free after-salestechnical support for one year after their purchase. However, following the purchase,the consumer realizes that all after-sales services are offered in English only and notin the language the consumer could have expected based on his priorcommunication with the trader, which is something the trader did not inform theconsumer of.9) Stating or otherwise creating the impression that a product can legally be soldwhen it cannot. 18

        Guide through the Albanian consumer lawExample: the trader advertises that he is selling a protected species of a plant whosesale is prohibited under the law.10) Presenting rights given to consumers in law as a distinctive feature of the trader'soffer.Example: the trader presents a legal guarantee (which is required by law – seeModule on consumer sales) of a product, claiming that it is a feature of a specificproduct that the trader offers for sale.11) Using editorial content in the media to promote a product where a trader has paidfor the promotion without making that clear in the content or by images or soundsclearly identifiable by the consumer (“advertorial”).Example: the trader provides the scientific-like descriptions of the virtues of a newtoothpaste by a doctor, without making clear that the trader has paid for the scientific-looking editorial.12) Making a materially inaccurate claim concerning the nature and extent of the riskto the personal security of the consumer or his family if the consumer does notpurchase the product; unduly playing on fear of security risks.Example: the trader presents false or inaccurate statistics of burglaries or crimes inthe area by trader to attract consumer to buy an alarm system to protect theirapartments. The trader would then purposefully omit to mention that the high break-in statistic is taken from one high-crime area of the city and therefore notrepresentative for the area the consumer lives in.13) Promoting a product similar to a product made by a particular manufacturer insuch a manner as deliberately to mislead the consumer into believing that theproduct is made by that same manufacturer when it is not.Example: creating confusion over brand names through the usage of a similarpresentation or labelling than the ones of other producers. For example, that wouldbe the case when selling a bag that resembles so much to the bag of anotherproducer that the average consumer cannot easily distinguish the difference betweenthe branded bag and the one sold in that shop.14) Establishing, operating or promoting a pyramid promotional scheme where aconsumer gives consideration for the opportunity to receive compensation that isderived primarily from the introduction of other consumers into the scheme ratherthan from the sale or consumption of productsExample: a network marketing scheme that works as a pyramid: a person wishing tojoin a network selling some beauty products as a seller must pay an entry fee and itsmain remuneration comes from recruiting other people into this same network. Suchpyramid schemes are prohibited.15) Claiming that the trader is about to cease trading or move premises when he isnot.Example: the trader falsely claims that his shop is about to close in order to attractconsumers to buy his products (e.g. End of lease – everything must go by thisFriday; Closing down sales). 19

December 201716) Claiming that products are able to facilitate winning in games of chance.Example: trader’s offer which states: Finally, you can win the lottery! Buy the newalgorithm system that will help you win the lottery.17) Falsely claiming that a product is able to cure illnesses, dysfunction ormalformations.Example: a trader states that a certain product can, for example, cure allergies, whenin fact it cannot: “How would you feel with a full head of hair? 10 years younger?Miracle Grow Hair Gel is a tried and tested product for hair rejuvenation!” (pleasenote that the health-related claims in advertising could also be covered by othersector-specific health and pharmaceutical legislation.)18) Passing on materially inaccurate information on market conditions or on thepossibility of finding the product with the intention of inducing the consumer toacquire the product at conditions less favourable than normal market conditions.Example: the trader falsely presents himself as an exclusive seller so that he cancharge a higher price for a certain product than its regular market price. For example,and the following advert would be prohibited: “This tennis racquet brand is used by afamous and successful tennis player! You can buy it too – only on our website. Buy itnow, as long as the supply is available!” whereas the brand is available on multiplewebsites from different retailers and at a much lower price.19) Claiming in a commercial practice to offer a competition or prize promotionwithout awarding the prizes described or a reasonable equivalent.Example: the trader advertises that the consumer who buys a specific tub of icecream will also automatically participate in a lottery that offers numerous prices.However, no prize is offered to anyone; it is a misleading statement to encouragepeople to buy the tub of ice cream.This provision applies whenever competitions or prize promotions are used ascommercial tactics to attract consumers into buying a particular product, althougheventually no prize at all – or no prize comparable to the one described - iseventually awarded to any consumer.20) Describing a product as free if the consumer has to pay anything other than thecost of responding to the commercial practice and collecting or paying for delivery ofthe item.Example: The bookseller advertises that the books are given for free when it turnsout that the consumer needs to pay for the books and only every third book is givenfor free.21) Including in marketing material an invoice seeking payment which gives theconsumer the impression that he has already ordered the marketed product when hehas not.Example: the trader sends a brochure about a newly published encyclopaedia to theconsumer together with an invoice to be paid, in a way that the consumer believesthat he has ordered it and that now he has to pay for it, when it is not a case. 20

        Guide through the Albanian consumer law22) Falsely claiming or creating the impression that the trader is not acting forpurposes relating to his trade or falsely representing oneself as a consumer.Example: the trader presents himself as a consumer when drafting positive on-linereviews about a certain hotel, when actually he is the hotel-owner.23) Creating the false impression that after-sales service in relation to a product isavailable in a Member State other than the one in which the product is sold.Example: the trade is selling a computer to the consumer in France, saying thattelephone support for any questions related to the product is available free of chargein all other Member States of the European Union when in fact telephone supportexists only in France and in French.24) Creating the impression that the consumer cannot leave the premises until acontract is formed.Example: the consumer enters in a shop and the trader claims that he has locked thedoor of the shop, saying that the consumer will be allowed to leave only if he buysone of the offered products. It is sufficient that the trader gives the consumer theimpression that he cannot leave the premises; it is not required that he physicallylocked in the consumer.25) Conducting personal visits to the consumer's home ignoring the consumer'srequest to leave or not to return except in circumstances and to the extent justified,under national law, to enforce a contractual obligation.Example: a trader who sells the cutlery at the doorstep and who insistently tries topersuade the consumer to buy the cutlery, although the consumer has made it clearhe does not wish to buy any product from the trader. Such persistent commercialbehaviour may press consumers into buying the offered product to get eventually ridof the trader as such.It will not be considered that this form of unfair commercial practice is taking place ina situation in which the trader continuously returns to the consumer’s home despitehis request not to do so, when it’s about seeking payment from the consumer forsomething that the consumer has ordered and not yet paid, as water usage bill or forinstance the books that the consumer has ordered.26) Making persistent and unwanted solicitations by telephone, fax, e-mail or otherremote media except in circumstances and to the extent justified under national lawto enforce a contractual obligation.Example: the trader sends many emails or SMSs to the consumers on a particularproduct although the consumer clearly requested that this practise stops. This doesnot necessarily prevent a trader from making persistent solicitations to seek paymentfrom the consumer for something he has ordered and not yet paid.27) Requiring a consumer who wishes to claim on an insurance policy to producedocuments which could not reasonably be considered relevant as to whether theclaim was valid or failing systematically to respond to pertinent correspondence, inorder to dissuade a consumer from exercising his contractual rights.Example: the insurer requires that the consumer, who wishes to claim compensationfor the theft or loss of personal items from luggage, to present receipts for all items to 21

December 2017which the claim is related as the receipts for all items would not be reasonablyconsidered as relevant. This provision secures that the consumer can easily andefficiently enforces his insurance policy.28) Including in an advertisement a direct exhortation to children to buy advertisedproducts or persuade their parents or other adults to buy advertised products forthem.Example: This video is now on the market – be the first one to have it among yourfriends, so tell immediately your mum to get it for you as soon as possible! Hey kids!Get your parents to buy the Batman Trilogy DVD! Read about the adventures ofFluffy the Bunny in this new comic book – ask your mum to buy it for youThis rule aims to protect children (and their parents) to be targeted by directadvertisements. A necessary element for the unfairness of this practice is the \"directexhortation\" aspect, which means that the advertisement must aim to put pressureon the children or their parents.29) Demanding immediate or deferred payment for or the return or safekeeping ofproducts supplied by the trader, but not solicited by the consumer (inertia selling).Example: a trader provides a consumer with goods or services which have not beenordered beforehand (e.g. the trader sends a book to the consumer, without theconsumer having asked for it, and then asks for the relevant payment).30) Explicitly informing a consumer that if he does not buy the product or service, thetrader's job or livelihood will be in jeopardy.Example: the trader who comes to the consumer’s home selling a vacuum cleanerwould claim that he will lose his job if the consumer does not buy the vacuumcleaner. For the application of this provision, it is irrelevant whether it is true or notthat the trader’s job or life may be in jeopardy.31) Creating the false impression that the consumer has already won, will win, or willon doing a particular act win, a prize or other equivalent benefit, when in fact eitherthere is no prize or other equivalent benefit, or taking any action in relation toclaiming the prize or other equivalent benefit is subject to the consumer payingmoney or incurring a cost.Example: the trader informs the consumer that he has won a car as a prize whenthere is no prize; or if the consumer needs to buy a specific product or needs to paya certain amount of money to claim the prize. The consumer must never have anycost to pay, even a small one such as a phone call or a stamp to claim the prize hehas won.STEP 2: THREE SMALL GENERAL CLAUSES:Common characteristics for all three clausesIf a commercial practice cannot be subsumed under any of thirty-one exhaustivelyenlisted concrete examples of unfair commercial practice, the second step is to verifyits fairness on the ground of three small general clauses. The first small generalclause is the one on misleading actions which secures that all information presentedto consumer are correct and true, the second small general clause is the one on 22

        Guide through the Albanian consumer lawmisleading omissions which guarantees that consumer has received all materialinformation he may need to make an informed choice, and the third small generalclause is the clause on aggressive practice which secures a free economic choice ofconsumer from any illegitimate or illegal pressure from trader.For all three small general clauses, it is common that breach of professional diligenceis irrevocably presumed, which thus implies that unlike in the case of a generalfairness clause, for prohibition of a commercial practice on the ground of one smallgeneral clauses, the Albanian Consumer Protection Commission does not need toverify whether trader’s behaviour is contrary to the requirements of professionaldiligence. In other words, trader cannot base his defence on the ground that hiscommercial practice which is found to be misleading or aggressive is not contrary tothe requirements of professional diligence.What else is also common for all three clauses is that a particular misleading oraggressive practice of trader must have the capacity to cause consumer to take atransactional decision that he would have not taken if the unfair commercial practiceof trader had not occurred. It is not required that consumer has really taken such adecision, but only a mere possibility of causality is considered as a sufficient pre-requisite for fulfilment of this condition.For instance, this condition would be easily fulfilled in the case of advertising whentrader is offering a package travel with a false, much lower price than the one hecharges in reality to attract consumers since it has potentiality to affect an economicdecision of consumer. It is not necessarily required to have an empirical proof that aconsumer physically went to that travel agency or that he concludes that packagetravel contract, since such a false advertising is likely, it has a capacity, to mislead anaverage consumer. Accordingly, what is required is a mere likelihood which isassessed in relation to expected reaction and behaviour of an average consumer inpractice.A transactional decision which has to be likely to be taken by consumer as aconsequence of a misleading or aggressive practice is also defined in a broadmanner. A transactional decision shall mean any decision taken by a consumerconcerning whether, how and on what terms to purchase, make payment in whole orin part for, retain or dispose of a product or to exercise a contractual right in relationto the product, whether the consumer decides to act or to refrain from acting.Importantly, it can be noticed that a transactional decision does not include only apositive decision of consumer, for example to buy certain product which trader isoffering in an aggressive, unacceptable manner to consumer, but also a negativedecision.An example of a negative consumer’s decision would be the case when traderimposes a disproportionate or onerous barrier on consumer when consumer decidesto enforce some of his rights under the contract, so consumer decides not to use hisright. For instance, in case of doorstep selling contract, when consumer wants to usehis right to freely withdraw from a contract without any justification or explanationwithin the period of fourteen days as of the conclusion of a contract, trader imposes acomplicated, illegitimate administrative procedure that consumer needs to finish inorder to be allowed to withdraw from a contract. In such a manner, trader protectsconsumer from enforcing his right in an easy manner. 23

December 2017Moreover, in case of application of all three small general clauses, the effects of apractice, i.e. its capacity to affect an informed and free choice of a consumer, shallalways be assessed by using the standard of average consumer as the principalbenchmark. Average consumer is, as pointed out above, a consumer who is areasonably well-informed and reasonably circumspect and observant consumer.However, in cases when particular practices of trader are targeted towardsvulnerable consumers, an average member of vulnerable group of consumers shallbe taken as a subsidiary benchmark, for example of an elder person of around theage of seventy-five if particular practice are directed to the population above seventyyears old.It is essential that all these elements explained above are always taken intoconsideration by the Albanian Consumer Protection Commission in its process ofassessment of fairness of a commercial practice under any of the three small generalclauses.Misleading actionsSmall general clause on misleading actions protects consumer from four generaltypes of unfair commercial practices.First, misleading actions are, most commonly, the forms of unfair commercialpractices which consist of trader providing consumer with untrue, false pieces ofinformation where provision of such false information cause consumer or is likely tocause him to take a transactional decision he would have not otherwise taken. As itis possible to notice from the name, the point of this provision is that trader is lying toconsumer, providing him with untrue information. The idea of this concept is verysimilar to a general private law concept of fraud.The examples of misleading actions with false information include the followingcases:- drink Stalinvodka…the only true Russian vodka, while this vodka is produced in Latvia;- fully free credit, while the consumer must pay some administrative costs to open his or her file;- product contains no additives, when in reality it does contain some additives;- room with a direct view on the sea, while the view either is in the mountain, or not directly on the sea;- GMOs free, while it does contain soya, which itself contains GMOs;- Advertising a car as a brand-new model, while this is a previous year model.Second, besides providing consumer with false information which is the mostcommon form of misleading action, the Albanian law provides another type ofmisleading action which is a commercial practice that, in any manner, includingoverall presentation, deceives or is likely to deceive the average consumer, even ifthe information is correct.The examples of misleading practice where an overall presentation is likely tomislead consumer include: 24

        Guide through the Albanian consumer law- IT equipment: get the latest technology for 2900 leks per month and unlimited telephone support: the consumer has reason to believe that support comes free of charge, which is not the case;- mobile phone tariffs: one net price but several additional charges in small print, including for basic options;- room with a view on the sea, while the room is located on the side of the hotel and you can only catch a very small portion of the beach coast;- rebates up to 80 %, while such rebates apply only on a very small part of the stock or most rebates are much lower than 80%.Under the Albanian law, for prohibition of a commercial practice on the ground of oneof two mentioned above forms of misleading actions, a provided false information oroverall presentation has to be in relation to one or more of elements enlisted below.However, these seven elements cover a widest possible set of situations, so inpractice it is not possible to imagine a case where false information in a commercialpractice could not be linked with some of them.These seven elements are rather used to explain more concretely what is meantunder misleading actions. They are:1. The existence or the nature of the product. Examples:- counterfeited product;- house plant being sold as a plant for gardens;- used product being sold as a new one;- pre-purchase of an apartment which is still to be built.2. The main characteristics of the product or service, such as:‐ its availability;‐ benefits: Example: miracle claims for losses of weight, or against fall of hair, or for increased sexual performances, or pain reliefs;‐ risks: without danger or safe product, while strict instructions for use are needed;‐ composition: sugar-free, preservative-free, nutritional allegations;‐ accessories;‐ after-sales assistance: 24 h assistance, while the phone operator does not answer during the night; free repair, while you have to pay for returning the defective good; satisfied or reimbursed, while you are offered credit for another purchase in the same store but no reimbursement;‐ availability of complaint handling procedures;‐ method of production: free of hormones, all natural, green or bio-products;‐ date of production: year 2013 model car, while it was produced in 2011;‐ delivery time or method: delivery within 24 hours;‐ fitness for purpose: tires fit for all types of weather, while snow tires are required in winter; paintings for interior presented as fit for exterior;‐ possible uses: mobile phone with multiple uses (video, camera, message text, internet, music, et.) while only 1 or 2 uses are possible;‐ quantity: 1 l bottle, while the bottle only contains 90 cl;‐ technical specifications: fuel consumption, energy consumption, compatibility of electrical equipment; 25

December 2017‐ tests or checks carried out on the product: Guaranteed safe, Tested by consumers or consumer group;‐ the extent of the trader’s commitments and obligations;‐ the nature of the sales process: directly from the producer;‐ any statement or symbol in relation to direct or indirect sponsorship;‐ any statement or symbol in relation to the approval of the product;‐ the price: announcing a price without taxes;‐ the manner in which the price is calculated;‐ the existence of a specific price advantage: offer of a price discount but several strict conditions do apply which were not clearly stated;‐ the status of the trader, such as his identity and assets, qualifications, license or affiliation, awards or distinctions;3. The extent of the trader’s commitments, the motives for the commercial practiceand the nature of the sales process, any statement or symbol in relation to direct orindirect sponsorship or approval of the trader or the product4. The price or the manner in which the price is calculated, or the existence of aspecific price advantage;5. The need for a service, part, replacement or repair;6. the nature, attributes and rights of the trader or his agent, such as his identity andassets, his qualifications, status, approval, affiliation or connection and ownership ofindustrial, commercial or intellectual property rights or his awards and distinctions;7. The consumer’s rights, including the right to replacement or reimbursement or therisks he may face.Third, form of misleading actions is the case of any marketing of a product, includingcomparative advertising, which creates confusion with any products, trade marks,trade names or other distinguishing marks of a competitor. For example:- fast food restaurant called MacDon’s- cola bottle using Coca-Cola design and colors which do not actually contain Coca-ColaFourth, a form of misleading practice will be trader’s non-compliance withcommitments contained in codes of conduct by which the trader has undertaken tobe bound, where: (i) the commitment is not aspirational but is firm and is capable ofbeing verified, and (ii) the trader indicates in a commercial practice that he is boundby the code.Misleading omissionsThe small general clause on misleading omission is aimed to secure that consumergets all information he may need to make a rational economic decision. In his relationtowards trader, consumer suffers from a chronical lack of information which makesposition much more difficult and fragile, making him more sensitive to unfair tactics oftrader. This is why one of the main objectives of consumer law is to secure thatconsumer will get not all possible information, but only the material information as theinformation he really needs to make an informed choice. Therefore, the provisions onmisleading omission of the Albanian law reaffirms a general obligation of trader to 26

        Guide through the Albanian consumer lawpresent to consumer all material information in his commercial communications andbefore conclusion of a consumer contract.The most common example of a practiced banned on the ground of small generalclause misleading omissions is the case when trader omits to present all materialinformation that the average consumer needs to take an informed transactionaldecision. For example:- Fly to Rome for 9900 Leks, but the advertisement does not precise whether this is a single way or return ticket, and says nothing about additional charges such as airport surcharge and fuel taxes, with a total price being at the end over 30000 Leks- High-speed Internet connection for 2900 Leks per month, but no mention that in order to obtain that price the consumer must subscribe a 3-year contractThe second form of misleading omissions will be the case when trader providesconsumer with material information, but in an unclear, unintelligible, ambiguous oruntimely manner. In other words, improper presentation of information from whichconsumer cannot profit, such as using very small, hardly legible letter fonts, isequalized with the situation when information is not provided at all.The third form of misleading omission is trader’s failure to identify the commercialintent of his commercial practice when this is not apparent from the context. Again, itmust be clear to consumer that a 3-minute presentation of excellent qualities andresults of a toothpaste is a commercial, and advertisement paid or sponsored bytrader and not a result of an objective medical survey and examination.As for misleading actions, assessing the misleading character of an omission incommercial practice is a process which uses objective criteria only. There is no needto prove that a consumer was actually misled or did actually suffer damage. Alikelihood is sufficient. The possibility of deception alone can be consideredmisleading, if the other elements are present as well. Moreover, trader’s attitude isalso irrelevant, i.e. to verify whether trader intentionally or negligently omitted toprovide consumer with information. For prohibition of a practice on the ground of thissmall general, it is just sufficient that he failed to provide a material information andthat is where examination shall be stopped without entering into discussion of thecause for such a failure.While assessing whether a practice represents a form of misleading omission, thefollowing aspects are taken into consideration bearing in mind behaviour of anaverage consumer (or vulnerable consumer, if applicable):‐ the presentation, display or lay-out of the commercial practice‐ the intelligibility of the terms used‐ the fact that some relevant information, while present in the message, remains hidden, obscure or in very small print‐ the categories of consumers to whom the commercial practice is addressed‐ the type of medium used, as this may impose limitations of space or time, such as advertisements on public boards, TV or web pages.In other words, all these factors need to be taken into consideration while decidingwhether trader really omitted to provide consumer with all material information. For 27

December 2017instance, the case when in his commercial communication (an advertisement innewspapers) trader provides just a starting price, and not all possible prices, for hispackage travel arrangement, will not typically represent a misleading omission iftrader provides consumer with information on where he may check what are allapplicable prices either with a phone number or website address where consumermay check all applicable prices.In case when trader’s commercial communication represents an invitation topurchase information requirements are stricter. This is because in such casesconsumer is closer to making his economic decision, i.e. to buying of a product. Insuch cases, the Albanian law points out what information necessarily need to bedisclosed:‐ the main characteristics of the product or service‐ the geographical address of the trader‐ the identity and trading name of the trader‐ when applicable, the geographical address and identity of the economic operator on whose behalf the trader is acting‐ the price inclusive of taxes, or where the nature of the product or service means that the price cannot be calculated in advance, the manner in which the price is calculated‐ when applicable, all additional charges for transport, delivery, postage or, when these charges cannot be calculated in advance, the fact that such well-identified additional charges will or may have to be paid,‐ specific arrangements, if any, for payment, delivery, performance and/or complaint handling.‐ in case of consumer transactions providing the consumer with the benefit of a right of withdrawal (such as in distance selling contracts), the existence of such a right to withdraw from the contract.Aggressive practicesA commercial practice shall be considered as aggressive if the average consumer’sfreedom of choice or conduct is significantly impaired as a result of illegitimatetrader’s behaviour. The concept of aggressiveness under the rules on unfaircommercial practices shall be understood very widely, so that it, for instance,includes the cases when trader is with his behaviour prohibiting consumer fromefficient enforcement of his consumer rights.The occurrence of aggressive practice is consequence of some of the followingforms of trader’s behaviour:‐ Harassment (irritant, constant phone calls)‐ coercion, including the use of physical force:‐ undue influence: undue influence means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make a free economic decision. Undue influence is often present when the trader takes advantage of the physical infirmity, age or credulity of the consumer. Examples: 28

        Guide through the Albanian consumer law  offering to a consumer who is already over-indebted or late in his payments or reimbursements to reschedule the debt on the condition that the consumer buys another product or service;  direct exhortation to children to buy advertised products or persuade them to convince their parents to buy advertised products to them  surprise stops during excursions organized for elderly consumers at shops exhibitions to induce them to buy products not related to the purpose of the excursion  exploiting the fact that the consumer finds itself in an emergency situation to make him pay a price by far above normal  offering an incentive to a consumer to buy in one particular shop or from one particular trader, such as free rides, free parking, promotional sales, coupons, etc is not undue influenceThe Albanian law provides a set of criteria to help determine whether a commercialpractice uses harassment, coercion, physical force or undue influence. Accountshould be taken of:‐ the timing of the practice - Example: phone calls or visits in the evening hours or at week-ends‐ its location, nature and persistence - Example: at consumer’s home, in hospitals, at school, on the bus‐ the use of threatening or abusive language or behaviour - Examples: the trader threats to talk to the consumer’s neighbours of relatives‐ the exploitation of any specific misfortune or circumstances of such gravity as to impair the consumer’s judgment, of which the trader is or should be aware - Example: taking advantage of the infirmity of the consumer‐ any onerous or disproportionate barriers imposed by the trader where a consumer wishes to exercise his rights - Example: imposing constraints not provided in the contract in case the consumer notifies his or her intent to terminate the contract, such as filling multiple forms, paying administrative costs or waiting for long delays‐ threatening to take any action that cannot legally be taken – Example the trader threats to go to court, while he knows that he has no case threatening to come and seize the furnitureSTEP 3: GENERAL FAIRNESS CLAUSEIn the hierarchical, three step mechanisms for assessment of fairness of acommercial practice, the last step means the usage of a very abstract generalfairness clause. Such a general fairness clause is used as a safety net to prohibit allthese practices which are unfair, but which managed to skip their prohibition on theground of one of thirty-one concrete examples of unfair commercial practices ofunder one of small general clauses.Under the general fairness clause, any commercial practice shall be prohibited if twoconditions are fulfilled:1) if a commercial practice is contrary to the requirement of professionaldiligence; and 29

December 20172) if it distorts of is likely to distort economic behaviour of the averageconsumer.These two conditions must be fulfilled cumulatively. The first condition imposes theexistence of a breach of required standard of behaviour by trader while acting at themarket in his relations towards consumer, whereas the second condition requiresproduction of certain effects of such trader’s behaviour on an average consumer. Thefulfillment of these two conditions has always to be assessed on a case-by-casebasis by the competent Albanian authority.The first condition requires that trader’s behaviour is contrary to the requirements ofprofessional diligence. Professional diligence is defined as a standard of special skilland care which trader may reasonably be expected to exercise towards consumers,commensurate with honest market practice and/or the general principle of good faithin the trader’s field of activity. In other words, it is an expected standard of fairbehaviour of trader towards consumer while acting at the market, a concept similar tothe general idea of good faith in Albanian private law.For instance, participation of consumers in a competition which is made conditionalon the purchase of a product can represent a form of breach of professionaldiligence. This is because the use of games of chance in advertising is very likely toarouse the human pleasure in gambling. As a consequence, the games of chancecan arouse the attention of prospective customers and direct them to certain ends bymeans of the chosen advertising strategy.Importantly, as pointed out earlier in this Guide, the breach of the standard ofprofessional diligence shall be only verified when fairness of a commercial practice isassessed on the ground of the general clause, whereas the breach of this standard isirrevocably presumed in case of the small general clauses on misleading actions,misleading omissions and aggressive practices.The second required condition of the general clause is that particular behaviour oftrader has a potentiality to have certain effects on a consumer. This condition isdefined very broadly, so it is not required that trader’s behaviour really producecertain effects on consumer, for instance that consumer decides to enter a shop andthat he really enters the shop as the consequence of trader’s behaviour contrary tothe requirements of professional diligence. On the contrary, a mere potentiality ofeffects of such trader’s behaviour is sufficient, i.e. a mere potentiality that certain actof trader might make consumer enter a shop. Therefore, in practice, the secondcondition shall get easily fulfilled.Potential effects of trader’s behaviour are always to be assessed in comparison tothe above explained standard of average consumer as the principal benchmark forassessment of fairness on the ground of general clause. Accordingly, in case whenparticular behaviour of trader concerns vulnerable consumer, an average member ofvulnerable group of consumer shall be taken as a subsidiary benchmark.Importantly, as pointed out above, average consumer is a careful consumer who isaware of all advertising tactics of trader. This is the common and legitimateadvertising practice of making exaggerated statements or statements which are notmeant to be taken literally (so called superlative advertising or puffery) will typicallynot represent a form of unfair commercial practice. This would be, for instance, thecase with a baker advertising his ‘pie’ as ‘The best pie in the city’. Equally, the 30

        Guide through the Albanian consumer lawadvertising a cappuccino as the most creamy and delicious in Albania will neitherrepresent a form of unfair commercial practice since consumer is aware that is apuffery and a subjective category which shall never be taken as an objective one.3.1.4 How the Albanian Consumer Protection Commission is supposed to assess the fairness of a commercial practice?For the assessment of fairness of a commercial practice, a three-step mechanismshall always be used. Consequently, the Albanian Consumer Protection Commissionhas always to follow these three steps in a strictly hierarchically defined orderprovided by the European Directive 2005/29/EC on unfair commercial practices astransposed in the Albanian law. The order of application of these steps is very strictand no exceptions are allowed. The benchmark is always behavior of an averageAlbanian consumer, or, if applicable, the behavior of a vulnerable consumer.The first step shall be to verify whether a commercial practice can be subsumedunder one of thirty-one exhaustively listed concrete examples of commercialpractices which are always unfair, under any circumstances. This will be the case, forinstance, with advertising of a product, falsely claiming that it may cure illnesses,malfunctions or malformations, when the trader claims that a special herbal tea curesflu, when this is actually not true. Another example is trader’s insisting on consumerto purchase a product claiming that in case consumer does not do so, trader’s life orjob will be in jeopardy, e.g. that he must sell a vacuum cleaner to the consumer,otherwise trader will lose a job since he has a daily quota he needs to fulfill and he isa father of five small children.If a commercial practice cannot be subsumed under any of these thirty-oneexhaustively listed concrete examples of commercial practice which are alwaysunfair, the second step is that the Albanian Consumer Protection Commission shallfollow is to verify fairness of a commercial practice on the ground of one of threesmall general clauses. Those are the clauses on misleading actions, misleadingomissions and aggressive practices. Their main purpose is to secure that acommercial practice does not endanger consumer’s potentiality to make an informedand free decision, i.e. that consumer’s economic decision to buy or use a product ismade on the ground of possession of all relevant information, which have to be true,and without improper intrusion of trader into the freedom of consumer’s decision-making process.Eventually, if a commercial practice is not found to be unfair on the ground of any ofthe three small general clauses as the second step, the last, third step to be used isto assess whether a commercial practice is unfair on the ground of a general fairnessclause. A general fairness clause is the most abstract mechanism for assessment offairness of a commercial practice of the three steps. Accordingly, for a practice to beunfair on the ground of general fairness clause, it needs to fulfill two cumulativeconditions: to be contrary to the requirements of professional diligence and tomaterially distort economic behaviour in relation to a product of an averageconsumer. Therefore, competent authority must check that both conditions arefulfilled.In case when a commercial practice passes the tests provided by all three stepswithout declaring it as unfair, such a practice of trader is considered as fair and, thus,legal and allowed. 31

December 20173.1.5 ECJ case law on unfair commercial practices:According to the interpretation of the Court in VTB-VAB NV (Joined Cases C-261/07and C-299/07 VTB-VAB NV v Total Belgium NV and Galatea BVBA v SanomaMagazines Belgium NV [2009]), while assessing fairness of any commercial practice,a strict three-step procedure shall always be followed in an exactly defined order.The first step to be taken is to verify whether a practice can be subsumed under anyof the thirty-one practices which are always unfair, under any circumstances. Theseare the only commercial practices, which according to the UCPD, can be declaredunfair without requirement for a case-by-case assessment. The exhaustive list isadopted in order to guarantee legal certainty as “an essential element for the soundfunctioning of the Internal Market”.In Ving Sverige (Case C-122/10 Konsumentombudsmannen (Ko) v Ving Sverige AB[2011], a case referred from a Swedish Commercial Court, the ECJ was dealing withthe question whether an advertising for a package travel of a Swedish tourist agencywhich contained only the initial price and partial material information can besubsumed under a form of unfair commercial practice. According to the views ofConsumer Ombudsman, the main Swedish institution in charge of enforcement ofconsumer law, such an advertising practice of trader is to be considered asmisleading since it omits to present certain material information and thus misleads anaverage consumer.The ECJ disagreed with the approach of Swedish Consumer Ombudsman andpointed out that the disputed advertising practice is legal, i.e. that an averageconsumer cannot be misled by such a practice and thus it must not be prohibited.According to the Court, for an advertisement directed towards an average consumerit is sufficient to provide only some of the material information in the advertisementitself whereas for the additional missing information it is enough to provide theconsumer with a phone number of an address of a web page on which he can findthe missing information and get informed. In other words, in case of an advertisingpractice as the one of Ving Sverige, an average consumer will not be fully pleasedwith the information provided, but he is expected to look for more informationprovided to him via other mediums.Moreover, in its judgement, the Court underlined the fundamental significance of acommon model of average the consumer, as a well-informed and reasonablyobservant and circumspect consumer, for the interpretations of the provisions of theDirective. As a consequence, only such a consumer can be used as a modelthroughout all Member States, precluding all previously existing national models ofconsumers even if, as it was the case of Sweden, national models of consumerguaranteed a higher level of consumer protection.In Perenicova (Case C-453/10 Jana Pereničová and Vladislav Perenič v SOS financspol. s r. o. [2012]), a dispute arose over a consumer credit agreement whoseseveral terms were challenged by consumers as being unfair. Especially problematicwas the stipulated interest rate which was higher than the amount which had beeninitially presented to the consumer before conclusion of the contract. As aconsequence, one of the main questions raised in this preliminary reference made bythe Slovakian court was whether a provision of false information of the annualpercentage rate of a charge in consumer credit contract represented a form of unfaircommercial practice. Furthermore, if the answer to this question was positive, the 32

        Guide through the Albanian consumer lawCourt was asked whether this also automatically lead to the unfairness of thecontract which represents the result of such an unfair practice.In its judgment, the Court stated that provision of untrue information of the annualpercentage rate is to be considered as a form of misleading action, in accordancewith article 6 of the UCPD in relation to the price provision. However, the unfairnessof such a practice does not cause directly that the unfairness of contract termconcluded as a consequence of such a practice, but it represents one of criteria thatthe national courts should take into consideration while assessing the fairness of acontract term as provided by the rules on unfair contract terms.Eventually, two main consequences of the judgment are that, first, stipulation of anunfair contract term shall be considered a form of unfair commercial practice(misleading) action, and, second, that the breach of the duty to trade fairly does nothave any direct effect on the validity of a contract, but it represents one of the factorsthat may be considered while deciding in that respect.In its judgement in Trento Sviluppo (Case C-281/12 Trento Sviluppo srl, CentraleAdriatica Soc. Coop. arl v Autorita Garante della Concorenza e dele Mercato), theECJ answered the question referred by an Italian court on whether for a commercialpractice is to be considered as misleading it is sufficient that it simply contains falseinformation or that it is likely to deceive an average or, in addition to this condition, itis also necessary that such a practice influences consumer to take a transactionaldecision he would have not otherwise taken.In its answer, the Court pointed out that the likelihood of causing the consumer totake a transactional decision he would have not otherwise taken a necessarycondition for a practice to be considered as misleading. This is explained through thefact that the UCPD objective is to provide a general prohibition of all unfaircommercial practices that distort economic behaviour of the consumer. In otherwords, the assessment of fairness of commercial practice by the national court mustbe done through a pure examination of traders’ commercial practice, but it has to beexecuted in the light of its potential influence on economic behaviour of theconsumer.Despite the fact that this judgment dealt with misleading actions, this rule shall alsomutatis mutandis apply to the provisions on misleading omission since they are twoforms of misleading practices. Moreover, the objective of both is the protection ofinformed choices of the consumer. Accordingly, a mere failure to provide materialinformation is not enough for the existence of misleading omissions, but such afailure has to be likely to cause an average consumer to take a transactional decisionwhere he or she would not have otherwise.In UPC Magyarország kft (Case C–388/13 UPC Magyarország kft v NemzetiFogyasztóvédelmi Hatóság [2015]), the Court has pointed out that for the applicationof the UCPD, it is sufficient that a particular practice affects an individual contractualrelationship, i.e. the provision of erroneous information to a single consumer, aspointed out in UPC Magyarország kft, will also constitute a commercial practiceunder the provisions of the UCPD and, thus, will be subjected to the three-stepmechanism for assessment of its fairness. 33

December 20173.2 The Rules on Unfair Contract Terms3.2.1 Protection of substantive fairness of contract termsThe rules on unfair contract terms secure substantive fairness of consumer contractsand their terms. Their main function is to prohibit trader to include in a contract anyterm which may be detrimental to consumer’s interest. The scope of application ofthese provisions is wide since they are not limited to specific types of consumercontracts, but they apply horizontally, to any consumer contract. Consumer contractshall be always understood as a contract in which one party is a trader and the otherparty is a consumer. It is irrelevant whether it is a contract on consumer sales or acontract on consumer services. Moreover, these rules will apply irrespectively of thefact whether trader is privately or publicly/State owned. In other words, the form ofownership of trader does not prevent the application of the general principle ofcontract terms fairness, so State companies also fall under its scope of protection.The rules on unfair contract terms in the Albanian law represent transposed andfurther developed provisions of Directive 1993/13/EEC on unfair contract terms. TheEuropean Court of Justice in Luxembourg in its case law on the rules on unfaircontract terms constantly identified and confirmed the status of consumer as asignificantly weaker party in a contractual relation that thus deserves special level ofprotection, particularly pointing out to its vulnerability when it comes to stipulation ofcontract terms.In the Member States of the European Union, the unfair contract terms particularlyoccur, but do not limit, to the following types of consumer contracts:‐ sales of consumer tangible goods‐ sales of immovable property‐ tenancy agreements‐ renting agreements‐ credit contracts‐ banking services‐ individual travel contracts‐ package travel contracts‐ contracts concluded at distance‐ sales on internet‐ repair services‐ medical services‐ insurance services‐ transport‐ telecommunications services‐ supply of water‐ supply of electricity or gas‐ postal services‐ transport services3.2.2 Scope of applicationAccording to the Albanian law, under the general criterion for fairness assessment, aconsumer contract term is unfair if it, contrary to the requirement of good faith, 34

        Guide through the Albanian consumer lawcauses a significant imbalance in the parties' rights and obligations arising under thecontract, to the detriment of a consumer.Non-individually negotiated contract terms are those terms in which consumer did nothave the opportunity to negotiate about them and their content. Typically, non-individually negotiated contract terms are the terms where there is a chronical use ofunfair terms, primarily through trader’s imposition of his general terms and conditionson consumer. Eventually, these general terms and conditions become an integralpart of a concluded contract under the principle ‘take it or leave it’. Those are thetypes of contracts which are in general private law called adhesion contracts.Consequently, in case of adhesion contracts consumers are offered with astandardized form of a contract entirely written by a trader where consumer does nothave possibility to discuss and redraft any of its contract terms. Therefore, in thesetypes of contracts there is, sometimes, justified fear that trader may misuse hispower and skills to draft such terms which may detrimental for consumer andparticular attention shall always be paid to this kind of consumer contracts. A classicexample of unfair contract term is a general provision of trader’s standard terms andconditions where for the place of the competent court in case of arising of any kind ofdispute from a contract where the court would be the one in the seat of trader andnot the one of the place of residence of consumer.The contract term which is unfair shall be null and void. This means an absolutenullity of the unfair contract term and its lack of capacity to produce any kind of legaleffects. Moreover, the usage of an unfair contract term will also always represent aform of unfair commercial practice into which the trader who stipulated it wasengaged which secures a higher level of protection.3.2.3 The requirement of plain and intelligible language of a contract termAn additional important aspect of the rules on unfair contract terms is therequirement that the terms included in consumer contracts must be written in plainand intelligible language. Otherwise, consumer is not bound by such provisions andthe consent given by the parties is not held valid when the terms are unreadable orincomprehensible. In other words, such contract term is also considered as unfairand, thus, it is null and void. A typical example of such contract terms is provision ofcontract terms in a very minor font of letters that can be read only with manydifficulties and efforts or actually cannot be read at all. Even though they may besubstantially fair, consumer is not bound by them since he could not get familiar withthem and their meaning and this is why it is considered as if they had not beenstipulated at all.Moreover, not only must the terms of contract be clear, but also comprehensible. Inaddition, this requires not only that the actual wording of individual clauses becomprehensible to consumers, but that the consumer can understand how the termdoes actually affect the rights and obligations that he and the trader have under thecontract.It is also required that the terms are intelligible to an average consumer. It is notsufficient for terms to be clear and precise for legal purposes; the legal jargon shouldbe avoided and plain language preferred. Intelligibility also depends on how contractsare presented and used. Obviously, print must be legible. This depends not only on 35

December 2017the size of print used but also its colour and shape. Some of the examples includethe following cases:‐ Interest and penalty clauses that appear in small, illegible print on the back of a credit agreement, while on the front it states in very visible print that the agreement is based on an “interest-free credit offer”;‐ Use of legal jargon;‐ Use of technical jargon;‐ Overabundant information, much of which is not directly relevant.Within the countries of the European Union, consumer contract transparency is oftensubject of controversy in insurance contracts, telecommunications contracts andcredit agreements.Equally, trader is not allowed to propose such contract terms which are drafted insuch a manner by trader that it is considered that consumer has accepted it unlesshe explicitly rejected it. This is the a well spread example of ‘tick boxes’ which arealways automatically considered as included in a contract unless consumer rejectsthem. Such consumer terms are neither binding for a consumer.3.2.4 Contra preferentum principleThe rules on unfair contract terms, besides establishing the criteria for fairness ofcontract terms, also establish a so-called contra preferentum principle that shallequally apply to all consumer contracts. This principle means that in case ofstipulation of a contract term whose meaning is ambiguous, unclear or imprecise, theinterpretation of that term which is the most favourable to consumer shall alwaysprevail. In such a manner, these rules protect consumer from potentially detrimentaleffects of contract terms which are fair, but whose meaning is ambiguous or givesground to diverse interpretation. Such a legal uncertainty may have negative effectson consumer when it comes to the interpretation of such ambiguous term.Accordingly, an imperative legal norm is that among all possible interpretations, theone that has always to be chosen is the one which is the most favourable forconsumer.An example of application of contra preferentem principle would include a case ofstipulation of a contract term where a deadline for payment under the contract isfifteen days, whereas contract conclusion and delivery of acquired product are notsimultaneous, and it was not précised from when period for payment shall becounted. The main doubt would be whether it is the moment of contract conclusion orthe moment of product delivery. Consequently, the moment of delivery shall metaken since it is the later one and thus more advantageous for consumer.The difference between the rules on the terms which are not stipulated in plain andintelligible language and the rules on contract terms with ambiguous meaning is thatin the former one it cannot be deducted at all what they are supposed to mean orthey are drafted in such a manner that cannot be read. Therefore, in order to protectconsumer from their potentially detrimental effects, they are considered as null andvoid. Contrary to this, in case of the terms with ambiguous meaning, they are notconsidered as null and void since they are not illegible or incomprehensible, but theymay have several meanings out of which the one which is the most favourable forconsumer shall be always taken. 36

        Guide through the Albanian consumer law3.2.5 The examples of unfair contract termsThe following examples are real cases decided upon either by courts throughoutMember States of the European Union, or held as unfair by competent administrativeauthorities. Though each decision must be construed according to the circumstancesof the individual case at stake, the selection made hereunder intends to reflect somerepresentative and common trends of recent case-law.The following terms were held unfair:‐ Term which confers exclusive jurisdiction on the court in the territorial jurisdiction of which the seller or supplier has his principal place of business‐ Clause establishing a jurisdiction different from this of the judge where the consumer is resident or domiciled‐ A clause of choice of jurisdiction by which any controversy arising from the said contracts should be decided by the judge of the place where the tour operator is based‐ Term fixing a disproportionate interest on a loan contract‐ A contractual clause requiring a buyer of timeshare rights who is exercising his statutory right to withdraw from the contract to pay an amount exceeding the costs necessary to conclude the contract actually borne by the trader.‐ If a telephone service provider offers unlimited internet use and guarantees that the price for the service will not change within twelve months, then this service must not be restricted.‐ A clause to round off for the annual calculation of the interests for mortgaged loans and always rounded up to benefit the bank.‐ In postal services contract: “You agree that we are permitted to open and check packages at any time and for any reason.”‐ Charging customers for each withdrawal of funds from their account while these customers are already paying a monthly fee for the maintenance of their bank account.‐ Any agreement on prosecution costs to be borne in the future that neither indicates the likely value of the costs, nor stipulates that only costs that are necessary for the firm to prosecute or collect outstanding sums are to be reimbursed.‐ A clause providing for the seller’s right to entry without consent to the consumer’s private property, whether to repossess goods for which consumers have not paid on time, to evict the consumer, or for any other purpose.‐ A term permitting the sale of goods belonging to the consumer which the supplier has in his possession.‐ A term or statement which permits the supplier to pass on information about the consumer more freely or widely than would otherwise be allowed under the Data Protection Law.The following terms were considered as acceptable:‐ A clause in the general terms and conditions of a tour operator stating: “Upon receipt of written confirmation and handing over of the guarantee certificate 20 % of the total travel price are due as a down payment. With respect to holiday apartments, the down payment amounts to 20 % per booked accommodation unit.” 37

December 2017‐ The following clauses in standard banking contracts: “The bank has compelling grounds to withdraw from a contract when the customer’s (or his co-debtor’s) financial situation has deteriorated such that his ability to meet his liabilities with the bank is in jeopardy” and “The bank has compelling grounds for withdrawing from the contract when the customer has provided incorrect information about his financial situation or other essential circumstances”.‐ The clause “we are not liable for damage caused by third parties”.3.2.6 The list of unfair contract termsThe general clause on fairness of a contract term is supplemented by the list ofconcrete examples of unfair terms which are presumed to be unfair unless the traderproves their fairness. This list is also of help for better understanding what type ofterms shall be considered as unfair on the ground of application of a more generaland abstract fairness clause:(a) excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury resulting from an act or omission of that seller or supplier; Example: a contract term that establishes a ceiling of a compensation for injuries a consumer suffered. There is an exception to this rule though, in case the trader can limit the amount of compensation in line with the applicable national legislation.(b) inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations; This would, for example, include a term that says that the consumer has no right to remedies (e.g. repair, replacement) if the oven he bought turns out to be defective and thus cannot be used.(c) making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realization depends on his own will alone; This would, for example, include a term whereby the trader reserves himself the right to perform the contract only if and when that trader wishes to do so.(d) permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract; This would, for example, include a term which makes any substantial prepayment or deposit entirely non-refundable, whatever the circumstances. However, when a consumer cancels without any justification, and the trader suffers loss as a result, the consumer cannot expect a full refund of all prepayments.(e) requiring any consumer who fails to fulfil his obligation to pay a 38

        Guide through the Albanian consumer law disproportionately high sum in compensation; This would, for example, include a term whereby the consumer is required to pay very high storage costs if he/she fails to take delivery as agreed.(f) authorizing the seller or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the seller or supplier to retain the sums paid for services not yet supplied by him where it is the seller or supplier himself who dissolves the contract; This would, for example, include a term whereby the consumer cannot cancel the contract in any circumstances, or can only do so with the supplier's agreement. The logic behind this provision is that consumers and suppliers should be on an equal footing as regards rights to end or withdraw from the contract.(g) enabling the seller or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so; This would, for example, include a term whereby the trader reserves himself the right to end a contract of indeterminate duration at any time immediately and without having to give any advance notice. With the exception of serious circumstances entailing a real risk of loss or harm to the trader or others if the contract continues even for a short period (for instance, in case a fraud is detected), a unilateral right for the trader to terminate contracts of indeterminate duration will usually be qualified as unfair.(h) automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express this desire not to extend the contract is unreasonably early; This would, for example, be the case with a term in a contract saying that the consumer can cancel the contract that has a fixed duration only up to one year before its end date (e.g. the contract ends on 1 July 2019 and the consumer needs to cancel its extension by 1 July 2018). The term would add that the contract is automatically extended if the consumer fails to do so. In principle, it is allowed to have a contract term which extends automatically a contract that has a fixed duration; however, to pass the fairness test such a term must give the consumer a reasonable time to express his wish to extend the contract; here it is not the case.(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract; This would, for example, include a term which refers to the terms in another document (which is not accessible for the consumer) and states that the consumer is irrevocably bound by these (other) terms.(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract; This would, for example, include a term whereby a trader reserves himself the right to unilaterally change the costs of a daily newspaper’s subscription without any valid reason that would be mentioned already in the contract itself (a valid 39

December 2017 reason could be the adaptation to the annual consumer price index change).(k) enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided; This would, for example, include a term whereby the trader reserves himself the right to provide the consumer with the Internet service with significantly slower speed than initially agreed without any valid reason.(l) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded; This would, for example, include a term which leaves it up to the trader alone to freely decide to change the gym’s monthly fee once the consumer has concluded the annual contract with the gym, without granting him the right to cancel the contract.(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract; This would, for example, include a term which allows a trader to decide by himself whether he is liable for the fridge he sold to the consumer and that has stopped working. Similarly, a term in a contract that grants the trader the exclusive right to provide the interpretation of any of the ambiguous terms of the consumer contract on the provision of mobile phone services will be unfair.(n) limiting the seller's or supplier's obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality; This would, for example, include a term which says that contract changes can only be made in writing and must be signed by the General Manager. An example of such unfair clause would be to require returning a warranty certificate to make the legal guarantee obligation enforceable.(o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his; This would be, for example, include a term whereby consumers are required to continue paying even when the relevant goods or services are not provided as agreed.(p) giving the seller or supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter's agreement; This would be, for example, include a term whereby the trader reserves himself the right to sell ('assign') his/her business to a different trader, so that consumers will find themselves dealing with someone else if the contract is continuing (e.g. in case of an insurance contract, a subscription to newspaper or magazine or a 40

        Guide through the Albanian consumer law membership in a club).(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.This would be, for example, include a term whereby the consumer is obliged to haveresort to arbitration to solve a dispute (for instance: “In case of complaint, theconsumer will first submit the case to the arbitration court designated in the contract,before he has the right to bring action before the court.\").3.2.7 How is the Albanian Consumer Protection Commission supposed toassess the fairness of contract term?The main element of the general fairness criterion that the Albanian ConsumerProtection Commission needs to apply is that an unfair contract term causes asignificant imbalance in the parties’ rights and obligations, to the detriment ofconsumer. The use of such terms is against the principle of good faith in negotiatingand concluding of consumer contracts. The control introduced by the general clauseremains an abstract one. It requires the Albanian Consumer Protection Commissionto decide if a particular term in a consumer contract is to be considered as beingunfair through assessing it on the basis of a general criterion.In order to help in making this decision, a set of criteria to facilitate the assessment ofunfairness are to be used:‐ the nature of the goods or services for which the contract was concluded‐ the circumstances attending the conclusion of the contract‐ all other terms of the contract or of another contract on which it is dependent‐ manner in which a contract or its term was negotiated and stipulatedConsequently, the Albanian Consumer Protection Commission needs to take intoconsideration all these factors while deciding whether a term is (un)fair on the groundof general fairness clause. The requirement of significant imbalance shall mean thattrader is imposing a term profiting from his advanced and powerful position vis-à-visconsumer in comparison to which he possesses more knowledge and supremacy.The consequence of such behaviour of trader is stipulation of a contract term whichis detrimental to the interest of consumer through which trader is obtaining even amore advanced position in comparison to consumer now formalized under a bindingcontract. Basically, trader is acquiring more rights on the detriment of consumer.Therefore, the stipulation of such terms is prohibited and why they are considered asnull and void.For the existence of unfair contract term, the intention of trader is irrelevant, i.e.whether he intentionally wanted to stipulate an unfair contract term or that happenedbecause of his negligence. Such a term will be considered as unfair in any case.3.2.8 ECJ cases on unfair contract terms 41

December 2017In its decision in RWE (Case C-92/11 RWE Vertrieb AG v VerbraucherzentraleNordrhein-Westfalen eV [2013]), the ECJ dealt with a case related to the fairness ofa standard contract term that allowed the trader to modify gas prices withoutproviding the reasons for the consumers. The Court highlighted a need to protect aconsumer from unfair terms in consumer contracts. Accordingly, the Court pointedout that standard terms in a consumer contract must always meet “the requirementsof good faith, balance and transparency”.However, the Court pointed out that a provision which allows the trader to modifyprices before a contract concludes, without informing the consumer the reasons formodifications, will represent a form of unfair contract term, notwithstanding theinclusion of a clause that allows the consumer to terminate the contract under suchcircumstances.In its judgement in Invitel (Case C-472/10 Nemzeti Fogyasztóvédelmi Hatóság vInvitel Távközlési Zrt [2012]), the ECJ identified the decision of the national court onthe unfairness of a contract term has erga omnes effects on all consumer contractsthat contains it irrespectively of the fact whether a consumer party to it has initiated alegal action or not.The Court’s judgment in Aziz (Case C-415/11 Mohamed Aziz v Caixa d'Estalvis deCatalunya, Tarragona i Manresa (Catalunyacaixa) [2013]) is of particular importancewhere the ECJ finally explained the meaning of good faith under the UTD. In itsjudgment, the ECJ has pointed out that while assessing fairness of a contract term,the national court shall understand ‘contrary to the requirement of good faith’, as acondition for a term to be declared unfair, as “whether the seller or supplier, dealingfairly and equitably with the consumer, could reasonably assume that the consumerwould have agreed to such a term in individual contract negotiations”. In other words,if the consumer would have not agreed, that is proof that a particular term is contraryto the requirement of good faith and if the requirement of significant imbalance hasbeen fulfilled, such a term shall be considered as unfair.In summation, under the interpretation of the Court in Aziz, a contract term will beunfair if, firstly, in case it had not be stipulated, the consumer would be in the morefavourable situation and, second, if traders could have expected that consumerswould not have agreed on this contract term if it had been negotiable. These twoconditions must be fulfilled cumulatively.In its judgement in Kásler (Case C-26/13, Árpád Kásler and Hajnalka Káslerné Rábaiv OTP Jelzálogbank Zrt [2014]), the ECJ explicitly employed the standard of theaverage consumer who is reasonably well informed, reasonably observant, andcircumspect. The ECJ mandated national courts to adopt it as a benchmark forverifying whether a contract term has been drafted in a plain, intelligible manner. Thiswas the first instance in which the Court applied the benchmark of the averageconsumer, as defined by the UCPD, as a standard applicable to a case concerningunfair contract terms. Prior to the ECJ as the highest European judicial instance, atendency to accept the average consumer as the applicable standard in consumercontract law could be observed in the case law of the national courts of someMember States.The approach of the Court in Kásler was confirmed in its subsequent decision inCNP Assurances SA Case C-94/14, Jean-Claude Van Hove v CNP Assurances SA 42

        Guide through the Albanian consumer law[2015]) where the ECJ has again identified the standard of the average consumer, asdefined by the UCPD, as a benchmark to be used for the assessment of fairness of acontract term in consumer contracts.3.3 The Rules on Consumer Sales Contracts3.3.1 General rules on contact on consumer salesConsumer sales contract traditionally represents a very common form of consumercontracts. The rules on consumer sales contract secure that the goods thatconsumer has acquired are in accordance with the sales contract that consumerconcluded. In other words, consumer shall always receive goods that he wanted ordecided to buy, with a certain expected level quality and characteristics he paid forand agreed with the seller, and not a defective good or good which does not havedesired qualities and characteristics. Besides a conformity obligation, the rules onconsumer sales contain provisions relevant for delivery of the goods and passing ofthe risk, as well as on commercial guarantee as an additional level of protection ofconsumer.The rules on consumer sales in the Albanian law represent transposed anddeveloped provisions of Directive 1999/44/EC on consumer sales and associatedguarantees when it comes to the conformity obligations and guarantee and Directive2011/83/EU on consumer rights which deal with the rules on passing of the risk anddelivery. Importantly, being a Lex specialist, these rules prevail over the rules ongeneral sales contract defined by the Albanian Civil Code. In case of any potentialconflict, the Law on Consumer protection shall always prevail.3.3.2 The conformity obligationUnder the rules on consumer sales, the main obligation of the seller is to deliver toconsumer the purchased goods which are in conformity with the concluded contract.Such a conformity obligation of the acquired goods with the sales contract isestablished under the Albanian law for a general period of two years. The “conformityobligation” replaces the traditional and commonly known “law of guarantee in salescontracts” as provided by general contract law rules, i.e. the Albanian Civil Code. Itconstitutes a set of provisions which are legally applicable to any guarantee schemeassociated with the sale of a consumer good.Importantly, the conformity obligation is a statutory, mandatory obligation which in nomanner or under no condition can be excluded by the will of the parties, by the seller.A potential stipulation of such an exclusion of conformity obligation would represent aserious breach of consumer law. Besides being contrary to the rules on consumersales, the exclusion of conformity obligation would also unavoidably represent anunfair contract term, and thus, would be considered as null and void, and a form ofunfair commercial practice form which seller shall be seriously sanctioned.In the area of consumer sales, a terminological particularity is noticeable. Namely, atrader as the counter-party to consumer in a contractual relationship is understood ina narrower sense, as a seller. Consequently, the application of the provisions isfocused on seller as a trader who concludes a contract with a consumer. Other 43

December 2017potential types of traders such as producer, distributor or importer are less affectedby these rules since they do not represent a party in contractual relationship withconsumer and the objective of these rules is to secure that consumer will alwayshave at least one trader to which he could address regarding his right to conformityand that is the seller.The relationship between diverse types of traders, e.g. seller and producer, sellerand distributor or seller and importer, are legally relevant in case of occurrence oflack of conformity where it is question which of these parties is directly responsiblefor defectiveness of goods and thus need to bear the final consequences and costs.However, from a perspective of a consumer, this is irrelevant since for him it isalways the seller who is responsible since that is a clear seller’s statutory obligation.In other words, the seller cannot base his defence arguing that the defectiveness ofgoods is the responsibility of producer, importer or distributor. Moreover, a sellercannot instruct consumer to contract any other trader in the supply chain, since he isthe one who is always in charge to remedy defectiveness of acquired goods vis-à-visconsumer. A potential seller’s rejection to remedy lack of conformity or imposing ofany illegal and onerous obstacles to consumer to enforce his rights will alsorepresent a form of unfair commercial practice of the seller.Certainly, in cases when seller remedies the defectiveness of goods whosedefectiveness may represent the final responsibility of importer or producer, sincegoods became defective during import or were produced in the factory as defective,the seller will have the right to compensation from these other traders. However,since this is a business-to-business relationship, its regulation is out of the scope ofthe Law on Consumer Protection and it is defined by general private law rules, inparticular through the provisions of the Albanian Civil Code. Consumer legislationjust points out that seller have the right to compensation from other traders in case ofoccurrence of defectiveness without entering further into the details.3.3.3 The scope of application of the conformity obligationThe obligation of conformity is limited to the types of goods as defined under theAlbanian law. Accordingly, as goods is considered any movable tangible goods withthe exception of the goods sold as part of the execution process which can never fallunder the scope of the conformity obligation as a consequence of the particularitiesof the execution procedure. Moreover, under the notion of goods water and gaswhich are not sold in a previously specified amount and electrical energy shall alsobe included.Consequently, besides the objects included in the definition, any other object whichis immovable or intangible, such as a house or intellectual property right, does not fallwithin the scope of application of these rules.Exclusive liability of the sellerOn the question on who shall be considered as responsible as regards theconformity obligation, it is always the seller that is liable and that consumer shallcontact in case of lack of conformity. This provision protects consumer from beingcross-directed by trader to producer, importer and/or distributer who may be all 44

        Guide through the Albanian consumer lawamong themselves denying responsibility. For instance, seller saying that theproblem consumer faced with the oven is a notorious example of factory mistake forwhich consumer shall contract the producer, whereas producer saying that it is theseller who is responsible since he kept the oven under improper condition in a non-adequate warehouse.Therefore, consumer legislation adopts the rule that it is always the seller who isliable and, repeatedly, there is no possibility he may avoid his responsibilitydefending himself that cause of lack of conformity lies with any other person, forinstance with a producer.However, on the other hand, these rules under no means shall limit consumer’spossibility to contact also producer, distributor or importer. Moreover, producer is bythe Albanian law explicitly identified as being a guarantor to the seller’s conformityobligation towards consumer. This is particularly important in cases when sellersimply ceased to exist, e.g. shop where consumer bough the oven got closed, orwhen seller becomes insolvent. In all these cases, consumer still has the right to askfor replacement of goods or compensation.3.3.4 The cases of exemptions of seller’s responsibilityContrary to the three examples of clear trader’s responsibility for occurrence of anylack of conformity, under the Albanian law, seller will be exempted from the liabilityfor the lack of conformity in several cases. First of all, his liability will not exist incases when at the moment of contract conclusion, consumer was familiar with theexistence of lack of conformity or he could have not been unaware of it. This wouldbe the case for instance of consumer buying a book in a section of the bookshopclearly marked as ‘damaged books – half price’ and then it turns out the acquiredbooks is missing some pages. In such cases, seller is never considered as liable.Second, the seller will not be liable for the goods which have become defective as aresult of the material that was given to seller by consumer. That would be the case,for instance, of a tailor who makes a suit out of material given to him by consumer,but then the suit gets destroyed by moths that were already present in the material atthe moment when it had been given to the tailor. Consequently, tailor cannot befound responsible for that defect.Third, seller shall not be liable in cases of occurrence of lack of conformity incomparison to the public promises about the characteristics of the goods if the sellerwas not aware or could not be aware of these promises. This would be the casewhen a consumer entered one shop where seller told him that types of shoes arewaterproof, and then that consumer goes to the other shop and by the same shoesfrom which that particular seller never claimed them being waterproof.Same applies in case when trader corrects the public promise before contractconclusion, for instance by saying that despite being advertised as waterproof, itturned out that the shoes are actually not waterproof, so consumer gets aware ofthat. Seller is thus exempted from the liability. Equally, when a public promise couldnot have influence on consumer to conclude the contract which would be the case ofconsumer buying shoes which are allegedly waterproof, saying that it does not careabout that their quality, but he buys them because he likes the model and colour, 45

December 2017seller will neither be found as liable for any potential claim for lack of conformitymade by consumer.3.3.5 A general presumption of conformity of goods with contractA general presumption is that consumer goods are in conformity with the consumersales contract if they:(a) comply with the description given by the seller and possess the qualities of thegoods which the seller has held out to the consumer as a sample or model;An example: waterproof shoes described and shown to consumer as beingwaterproof and in reality, turned out to be waterproof;(b) are fit for any particular purpose for which the consumer requires them and whichhe made known to the seller at the time of conclusion of the contract and which theseller has accepted;An example: consumer pointing out that a model of particular dress is too tight for herand the need to widening it, and seller agreeing to make it wider, which led tocontract conclusion;(c) are fit for the purposes for which goods of the same type are normally used;An example: a pen which can really write;(d) show the quality and performance which are normal in goods of the same typeand which the consumer can reasonably expect, given the nature of the goods andtaking into account any public statements on the specific characteristics of the goodsmade about hem by the seller, the producer or his representative, particularly inadvertising or on labelling.An example: that the free-range eggs from eggs which were not kept in a cage, butcould move freely.Contrary to this, some obvious examples of lack of conformity would include:‐ the delivered goods being of different colour than the one consumer ordered;‐ the delivered goods are of another size or quantity than the one ordered;‐ the delivered car is a model of previous year, though it was advertised as this year model;‐ the furniture which is delivered does not meet the measurements consumer indicated to seller and therefore cannot fit in the flat;‐ the fuel consumption of the car does not meet the figures indicated in the advertisements or car information booklet;‐ the performance of the car which has been delivered does not make it possible to use it on mountain roads, although this use had been made clear to the seller at the time of concluding the contract;‐ the goods contain nuts although consumer insisted by the seller that he is allergic to nuts;‐ the goods contain some fat although it is labelled as being fat-free.The Albanian law creates the presumption that any lack of conformity whichbecomes apparent within 6 months of delivery of the good was actually present at 46

        Guide through the Albanian consumer lawthe time of delivery. As a result, the consumer is not required to bring evidence of thefact that the lack of conformity was present at the time when the contract wasconcluded when the lack of conformity becomes apparent within 6 months afterdelivery of the product.3.3.6 Consumer remedies in case of lack of conformityIn case of lack of conformity, the Albanian law grants two principle possible remediesto consumer: the right to repair of goods and the right to replace the goods. Thesetwo rights are offered alternatively and the choice which one shall be used is alwayson consumer. For example, in case of a broken fridge, consumer may ask seller forthe new fridge or the broken one to be repaired. In practice it may happen that traderinsists on the repair as the only option, claiming that replacement is impossible sincehe ran out of that goods or cannot acquire it any more. In this case, it is on seller toprove that replacement is not possible, otherwise he will breach consumer legislationand his behaviour will constitute a form of unfair commercial practices by not allowingconsumer to enforce his statutory rights. Competent authority and the court shall bealways aware of that.The repair and replacement in case of lack of conformity are always to be done freeof charge. This means that no costs whatsoever can be required from the consumerto remedy the lack of conformity. The seller is not allowed to ask the consumer or tomake the remedy depending on the consumer paying some sum of the money in thename of replacement or repair, for example:‐ postage costs for returning the good;‐ handling or administrative costs of any sort or amount;‐ labour costs;‐ costs of used materials to repair goods.In cases when neither repair or replacement are possible because, for example, thattype of oven is not produced anymore or the seller does not have it anymore and thatthe oven is so badly broken that it cannot repaired, consumer has the right to eitherterminate the contract or to ask for the diminution of the paid price. Again, the choicebetween the two options remains on consumer.Equally, consumer will have to chose between these options even in certain caseswhen repair and replacement are possible, but when any of the two optionsrepresent a disproportionate burden for seller. An example would be the case, forinstance, when the oven was bought on some spectacular offer or at the sales andthe price that the seller would need to bear to acquire from importer a new oven ismuch higher than the price consumer paid as well as the case when the price ofrepair exceeds the paid price.The existence of disproportional burdensome shall always be proven by seller and itis to be decided on a cases-by-case basis on the ground of disproportionate coststhat repair and replacement cause in comparison to price diminution and contracttermination. The Albanian law enlist some factors that have to be taken intoconsideration while assessing whether costs of replacement and repair aredisproportionate. Those are, first, the value of the goods if it was in conformity, forinstance it would be disproportionate if the value of that good would be smaller than 47

December 2017the repair cost, second, the significance of conformity in each particular case, and,third, whether the lack of conformity may be remedied without materialinconvenience for consumer.However, consumer’s choice between the rights to contract termination and pricediminution is limited in certain cases. Namely, consumer is not allowed to demandcontract termination when the defect of the acquired goods is considered as minor. Aminor defect is something that shall be decided on a case-by-case basis. Forinstance, that would be the case with the car whose one of the windows does notwork properly, where such a defect is minor in comparison to the value of the entirecar, so contract termination shall not be allowed to consumer in such case.To sum up with, in case of lack of conformity, a repair or replacement of goods mustbe always asked as the first option. The reduction of price or rescission of contractwill be allowed only if repair or replacement proves to be impossible or whenreplacement and rescission are a disproportionate burden for seller.3.3.7 Time limits of conformity obligationThe Albanian law defines two important time limitations for remedying the lack ofconformity. General duration of the legal guarantee period: 2 yearsThe seller’s obligation to guarantee conformity with the contract will last for a periodof 2 years as from the moment of the passing of the risk, i.e. the delivery of thegoods to consumer. Accordingly, the seller shall be liable where the lack ofconformity becomes apparent within two years. Obviously, the nature of the goodswill have to be taken into consideration, as it cannot be expected for all goods to lastfor the period of two years.The impact of this two-year conformity obligation is quite significant as it means thatall durable consumer goods, such as cars, furniture, household appliances, arelegally guaranteed for at least 2 years and the seller cannot offer pretend to be liablefor less than 2 years. However, practice shows that most common time-limits aremuch shorter, e.g. 6 months or 1 year. Lack of conformity is presumed within the first six monthsA presumption is created that any lack of conformity which becomes apparent withinsix months of delivery of the good was actually present at the time of delivery.Consequently, the burden of proof during the period of the first six months is alwayson seller and he needs to prove that lack or cause of non-conformity did not exist atthe moment of delivery, but that it has occurred subsequently. For instance, thatmobile phone is not working because of a factory fault with its operational system,but since consumer dropped it in a glass of water.After the expiry of the first six months, the burden of proof shifts from seller toconsumer and it is then the consumer who shall prove that lack or cause on non-conformity of acquired goods existed at the moment of delivery. A six monthspresumption will not, exceptionally, be applied if that is contrary to the nature of the 48

        Guide through the Albanian consumer lawacquired goods or to the nature of a inconformity. This exception shall alwaysinterpret very restrictively to protect consumer from its potential misusage by theseller.3.3.8 Statutory (legal) v. Commercial (contractual) guaranteeThe period of conformity obligation is established by the Law on ConsumerProtection for the period of two years during which seller is liable for any defend ofthe sold goods to consumer. This conformity obligation is also called a statutory or alegal guarantee since it is defined by the Law on Consumer Protection itself. Itapplies to all goods which are included in above explained definition of the goodsand cannot be restricted to a shorter period of time or totally excluded.Besides a mandatory statutory guarantee of the Law on Consumer Protection, inpractice, some sellers may also offer two other types of guarantee, as part of theirmarketing or commercial strategies to attract consumers. This is why theseguarantees are called commercial guarantees. However, they are sometimes alsoreferred to as contractual guarantees since they are established by a contractbetween seller and consumer, and not by the law. Commercial guarantees do notnecessarily need to be issued by the seller himself, but they may also be issued byanother trader, for example importer, distributor or producer of particular goods.Importantly, commercial guarantees have necessarily to be distinguished from thestatutory guarantees. Namely, commercial guarantees are guarantees voluntarilymade by the seller or by any trader in the chain (producer, importer, distributer oreven some other seller). Such guarantees are legally binding on the one who offersthem under the conditions laid down in the guarantee statement and in anyassociated labelling, documentation or advertisement. In accordance with this, acommercial guarantee can just provide additional rights to consumer and they cannotin any manner modify or exclude the rights established by statutory guarantee to thedetriment of consumer.A distinction between a statutory and a commercial guarantee is always to be takeninto consideration since it is possible to notice that in practice shows commercialguarantees are sometimes used to preclude or to restrict the rights that consumersare being granted under the law. Stipulation of such provisions would be a clearinfringement of consumer legislation and shall also be regarded as unfair contractterms. Again, this does not in any manner touches upon consumer’s statutory right toaddress any lack of conformity directly to the seller. The commercial guarantee sinceit is derived from a contract may provide that consumer shall in case of someproblems contact some other sellers as well and not only the seller form whichconsumer acquired the goods.Depending on whether consumer is supposed to pay for it, a distinction between twotypes of commercial guarantees can be made. The first type of commercialguarantees includes guarantees which are offered to consumer free of charge,whereas second type of commercial guarantees include such guarantee for whichconsumer is required to pay certain sum of money in order to get some additionalrights in relation to particular goods he is acquiring.First of all, a seller will offer a commercial guarantee free of charge, where in such amanner he wants to attract consumer by pointing out that he is offering an additional 49