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Questions 1-16 are answered by Martina Divald Mužilová, attorney at law, Hronček & Partners

1. Hello, my question is: a customer wants to make a complaint; he bought something in an online store and lost the receipt (invoice). Are we required by law to print it out or send him a new one?

The significance of an invoice from the perspective of Act No. 222/2004 Coll. on value added tax, as amended (hereinafter referred to as the "VAT Act") lies in the fact that it primarily serves to control value added tax. It serves to control the VAT that the supplier is obliged to pay on the supply of goods or services and also serves to control the tax deduction claimed by the recipient of the goods or services. The issue of invoices is regulated by the provisions of Sections 71 to 76 of the VAT Act. The VAT Act regulates persons and establishes cases where the issuance of an invoice is mandatory.

The Act does not directly impose an obligation on the trader to issue a new invoice if the consumer has lost the invoice.

In this regard, however, we would like to point out that the trader is not entitled to refuse to accept a complaint if the consumer who demonstrably purchased the goods from the trader does not present proof of purchase (invoice).

Given the number of information obligations imposed by the new Act No. 108/2024 Coll. on consumer protection and amending certain laws (hereinafter referred to as the "Consumer Protection Act") imposes on traders, proving the origin of goods should be relatively simple, even without the need to present proof of purchase (invoice).

2. Hello, please could you tell me when the new rules on e-commerce come into effect? Thank you

New general legislation on consumer protection, which will replace Act No. 250/2007 Coll. on consumer protection and amending Act No. 372/1990 Coll. of the Slovak National Council on misdemeanors, as amended (hereinafter referred to as "Act No. 250/2007 Coll."), Act No. 102/2014 Coll. on consumer protection in the sale of goods or provision of services based on a distance contract or a contract concluded outside the seller's premises and on amendments to certain acts, as amended (hereinafter referred to as "Act No. 102/2014 Coll.") and Act No. 299/2019 Coll. on supervision and assistance in resolving unjustified geographical discrimination against customers in the internal market and amending Act No. 128/2002 Coll. on State Control of the Internal Market in Consumer Protection Matters and on Amendments to Certain Acts, as amended, shall enter into force on July 1, 2024.

The above-mentioned consumer protection regulations and related regulations in the valid legal order of the Slovak Republic will thus be merged into a single legal regulation - the Consumer Protection Act.

3. Withdrawal within 30 days. Does this also apply to sales "promotions" or so-called promotional goods in e-shops? Or does it only apply to door-to-door sales?

Under the new legislation, consumers may withdraw from a distance contract or a contract concluded outside the trader's business premises within 30 days of the date of conclusion of the contract in the case of an unsolicited visit or in connection with it, or at a sales promotion or in connection with it.

Sales event means, according to the new legislation, an event held outside the business premises of the trader and the consumer's home, intended for a limited number of consumers with access based on an addressed communication which clearly indicates that it is an invitation (hereinafter referred to as "invitation") and whose main purpose is the presentation, offer, sale or provision of a product, if the trader concludes a contract with the consumer during the event or within 15 working days after the event. Sales at public auctions or events whose purpose is exclusively the tasting and consumption of food and beverages in connection with their sale or the demonstration and sale of cosmetic products are not considered sales events, unless other products are also demonstrated, offered and sold.

We assume that by "special offer goods in an e-shop" you mean goods offered at a reduced price. The provision on the consumer's right to withdraw from a distance contract or a contract concluded outside the trader's business premises within 30 days of the conclusion of the contract in the case of an unsolicited visit or in connection with it or at a sales event or in connection with it does not apply to "special offer goods in an online store" or goods offered at a reduced price.

4. The option "Eco-friendly packaging" is pre-selected in my shopping cart. What if I select "Do not use eco-friendly packaging" and it is not pre-selected? Is this in accordance with the law?

Before any contract or offer becomes binding on the consumer, the trader must obtain their express consent to any additional payment other than the remuneration agreed for the trader's main contractual obligation.

The trader may not, in the draft contract or in any pre-contractual information, offer the consumer pre-selected options which require the consumer to take steps to reject them in order to avoid paying additional costs.

The new legislation expressly stipulates that payment other than the payment of the sales price for the product is payable by the consumer if he has expressly agreed to such payment before the conclusion of the contract or before sending the order, if the contract is concluded on the basis of an order placed by the consumer.

If the consumer is obliged to pay a payment other than the selling price of the product because the option "Do not pack in an environmentally friendly way" has not been selected (not ticked) and the trader has not obtained the consumer's prior express consent to this payment, the consumer is not obliged to pay this payment.

5. Could you provide more information on how the complaint procedure will change? What will be the main changes? Thank you

The biggest change is the amendment to liability for defects (with the deletion of the parallel provision on the complaint procedure in the Consumer Protection Act). The current situation is governed by the provisions on liability for defects in the Civil Code and the provisions on the complaint procedure in Act No. 250/2007 Z. In order to simplify, consolidate and harmonize the regulation of liability for defects in goods, digital services and digital content with EU law, the new legislation proposes that only the regulation in the Civil Code be retained.

A new wording of Section 507 of the Civil Code is introduced in order to clarify the types of defects and rights arising from liability for defects. This is a general provision, and individual types of contracts may contain specific legal provisions on defects and rights arising from liability for defects.

A new wording of Section 509 of the Civil Code is introduced, which regulates the right to reimbursement of reasonable expenses incurred by the acquirer in connection with the notification of a defect for which the transferor is liable and the exercise of rights arising from liability for defects. Paragraph 2 represents a change compared to the current wording of Section 509(1) of the Civil Code.

The new wording of Section 509(3) of the Civil Code regulates the acquirer's right to reasonable financial compensation in the event of successful enforcement of rights arising from liability for defects in court proceedings. The criteria for determining the amount of reasonable financial compensation in cases where a consumer successfully asserts their rights in court are laid down in Section 3(1)(e) of the Consumer Protection Act.

The time limit for the consumer to exercise their right to reimbursement of reasonable costs incurred in connection with the notification of a defect for which the trader is responsible and the exercise of rights arising from liability for defects, as well as the moment from which this time limit is calculated, is changed from the currently applicable period of 1 month after the expiry of the period in which defects must be reported to a period of 2 months from the delivery of the repaired or replacement item, the payment of a price reduction or the refund of the price after withdrawal from the contract.

The consumer may now exercise their rights arising from liability for defects even without first reporting the defect to the trader.

6. Is the seller obliged to accept/pay for goods returned within 14/30 days even if they show signs of use or the packaging is damaged? Thank you.

The consumer has the right to withdraw from a distance contract and from a contract concluded outside the trader's business premises without giving any reason within the period specified in Section 20(1) to (3) of the Consumer Protection Act, regardless of the condition of the purchased goods.

Derogations from the consumer's right to withdraw from the contract are governed by Section 19(1) of the Consumer Protection Act. This is the result of the transposition of the provisions of Directive 2011/83/EU, as amended, which take into account the specific characteristics of certain products for which allowing the consumer to exercise their right of withdrawal would create a significant and unjustified imbalance between the consumer's rights and the trader's obligations. This applies, for example, to contracts for the supply of goods

1. in sealed packaging which are not suitable for return for health protection or hygiene reasons, if the sealed packaging has been broken after delivery (Section 19(1)(e) of the Consumer Protection Act). Section 19(1)(e) of the Consumer Protection Act regulates the return of goods such as canned food, drugstore items, baby diapers, etc., for which there are legal or social and cultural hygiene requirements and the trader would not be able to resell the returned goods with damaged packaging or would have difficulty reselling the goods even at a discount.
2. According to the Court of Justice of the European Union in Case C-681/17 (slewo – schlafen leben wohnen GmbH v Sascha Ledowski), the scope of Directive 2011/83/EU, as amended, which is transposed in this letter, does not cover goods such as mattresses whose protective film has been removed by the consumer after delivery, since "even in the case of direct contact of this type of goods with the human body, it can be assumed that, after their return by the consumer, the trader will be able, by means of cleaning or disinfection, to put them in a condition in which it is suitable for further use by a third party and, therefore, to put it back on the market without breaching health or hygiene requirements."
3. delivery of audio recordings, video recordings, audiovisual recordings or software in sealed packaging which has been broken after delivery (Section 19(1)(i) of the Consumer Protection Act). Section 19(1)(i) of the Consumer Protection Act provides for a further derogation from the right of withdrawal for products such as vinyl records, CDs containing music or software installation programs, or films on DVD or Blu-ray discs. In the case of these products, it is not possible to verify whether the product has already been used by the consumer if the packaging has been broken. Allowing the right of withdrawal to be exercised in such cases would lead to the de facto operation of a rental service rather than a sale by a trader.

Apart from the above exceptions to the consumer's right of withdrawal, no legal provision requires the buyer to keep the original packaging or to present it when complaining about a defective product, nor does any legal provision give the seller the right to require the buyer to present the original packaging when making a complaint.

Under the new legislation (Section 21(4) of the Consumer Protection Act), the consumer is liable for any reduction in the value of the goods resulting from handling the goods in a manner beyond what is necessary to determine the nature and functioning of the goods; this does not apply if the trader has not fulfilled its information obligation under Section 15(1)(f).

The consumer should handle the goods in the same way as they would be allowed to do in normal business operations. For example, clothing or footwear should only be tried on, not worn. However, the consumer may unpack the goods to inspect them. The removal of any protective film on the goods should be considered restrictive and should not be considered a reduction in the value of the goods unless its removal is necessary for the goods to be tried and tested. Kitchen goods or goods intended for craft activities, for example, should not be tested directly during use, but rather "dry," otherwise this would constitute a reduction in the value of the goods.

Therefore, if the consumer returns damaged or otherwise degraded goods, the trader is obliged to take back such goods and refund the purchase price paid by the consumer. Only then can the trader make a claim against the consumer for compensation for the reduction in the value of the goods.

In this regard, we would like to add that:

• the consumer is not liable for any reduction in the value of the goods pursuant to Section 21(4) of the Consumer Protection Act if he was not informed by the trader of his right to withdraw from the contract, the conditions, time limit and procedure for exercising this right, or if he was not provided with a withdrawal form;
• unilateral offsetting of claims of the trader and the consumer arising from withdrawal from the contract pursuant to Section 19(1) is prohibited (Section 22(8) of the Consumer Protection Act).

7. Is the seller also obliged to refund the shipping costs?

Pursuant to Section 21(3) of the Consumer Protection Act, in the event of withdrawal from a distance contract or a contract concluded outside the trader's premises pursuant to Section 19(1), the consumer shall only bear the costs of returning the goods to the trader or to a person designated by the trader for the return of the goods; this shall not apply if the trader has agreed to bear these costs. 1, the consumer shall only bear the costs of returning the goods to the trader or to a person designated by the trader to take back the goods; this shall not apply if the trader has agreed to bear the costs himself or if the trader has failed to comply with the information obligation under § 15(1)(g).

The trader is obliged to return to the consumer, within 14 days of receipt of the notice of withdrawal from the contract, all payments received from the consumer on the basis of or in connection with the distance contract, the contract concluded outside the trader's business premises or the supplementary contract, including the costs of transport, delivery, postage and other costs and fees (§ 22(1) of the Consumer Protection Act).

The trader is not obliged to reimburse the consumer for additional costs if the consumer has expressly chosen a different method of delivery than the cheapest standard method of delivery offered by the trader. Additional costs are understood to be the difference between the delivery costs chosen by the consumer and the costs of the cheapest standard delivery method offered by the trader.

8. Discounts on goods and sale items, i.e. withdrawal from the contract within 30 days, only apply to sale items? Or also to discounted goods? Thank you

See the answer to question 3 above.

9. Refund of shipping costs: does the law stipulate that the customer is refunded the cheapest possible delivery if the seller offers personal collection for EUR 0, and are the shipping costs refunded?

See the answer to question 7 above.

The trader is obliged to refund the consumer all payments received from them within 14 days of receiving notification of withdrawal from the contract.

If the transport costs were not included in the payment received by the trader from the consumer, or if the transport costs were EUR 0, the trader is not obliged to reimburse the consumer for any transport costs (note: this refers to the costs of transporting the goods to the consumer). The costs of returning the goods to the trader are borne by the consumer.

10. Is it possible to refuse withdrawal from a contract for headphones on hygiene grounds if this is stated in the terms and conditions?

See the answer to question 6 above.

Applying the conclusions of the Court of Justice of the European Union in case C-681/17 (slewo – schlafen leben wohnen GmbH/Sascha Ledowski) by analogy, we are of the opinion that it is not possible to refuse withdrawal from a contract for headphones by invoking the provisions of Section 19(1)(e) of the Consumer Protection Act, even if this option (note: contrary to the law) is provided for in the trader's terms and conditions.

In the above-mentioned decision, the Court of Justice points out that the purpose of the right of withdrawal is to protect consumers in the specific situation of distance selling, where there is no possibility of inspecting the goods before concluding the contract. This right therefore compensates for the disadvantage suffered by the consumer in a distance contract by granting him a reasonable period of time to reconsider, during which he has the opportunity to examine and try out the goods purchased in order to determine their nature, characteristics and functionality.

As regards the exception provided for in Section 19(1)(e) of the Consumer Protection Act, the decisive factor is the nature of the goods, which may justify sealing their packaging for health or hygiene reasons. Unsealing the packaging deprives such goods of their guarantee in terms of health or hygiene. Once the packaging of the goods has been unsealed by the consumer and thus deprived of its guarantee in terms of health or hygiene, there is a risk that such goods will no longer be able to be used by third parties and, for that reason, will no longer be able to be placed on the market by the trader.

According to the Court of Justice, a mattress whose protective film has been removed by the consumer after delivery, as in the present case, is not covered by the exception to the right of withdrawal. On the one hand, such a mattress, even though it could potentially be used, is not, for that reason alone, manifestly unsuitable for further use by a third party or for being put back on the market. On the other hand, as regards the right of withdrawal, a mattress can be compared to clothing, a type of goods for which the directive expressly provides for the possibility of return after trial. Such a comparison can be imagined in that, even in the case of direct contact of this type of goods with the human body, it can be assumed that, after their return by the consumer, the trader is able, by means of measures such as cleaning or disinfection, to put them in a condition suitable for further use by a third party and thus put it back on the market without breaching health or hygiene requirements.

11. When withdrawing from the contract, does the customer have to send the original packaging along with the goods? I am not talking about a complaint, but about withdrawal from the contract. Thank you.

See the answers to questions 6 and 10 above.

The law does not directly require the consumer to return the purchased goods in their original packaging.

If the e-shop operator had such an obligation in its terms and conditions, it would be in breach of the law, as it would be imposing an obligation on the consumer without legal grounds.

12. How is it that with a 14-day return period, the goods do not have to be in their original packaging? The 14 days are for trying out the goods as if they were in a store. In a store, the customer does not throw away the packaging...

See the answers to questions 6 and 10 above.

According to Section 4(1)(e) of the Consumer Protection Act, the trader is obliged to demonstrate the goods or check the goods in front of the consumer before concluding the contract, if the nature of the goods allows it and the consumer requests it. When exercising this consumer right or the trader's obligation, a situation may arise in the store where the original packaging of the goods is removed or damaged; however, this does not affect the trader's ability to put the goods back on the market.

13. Can the customer withdraw from the contract after filing a complaint? Do we have to accept the withdrawal or can we handle it as a complaint?

For a comprehensive assessment, it is necessary to consider the circumstances under which the consumer withdrew from the contract.

If the contract with the consumer was concluded at a distance or outside the trader's business premises or during an unsolicited visit or in connection with it, or at a sales event or in connection with it, the Consumer Protection Act, with the exceptions specified in Section 19(1), allows the consumer to withdraw from such a contract without giving any reason within the period specified in Section 20(1) to (3) of the Consumer Protection Act. 1, allows the consumer to withdraw from such a contract without giving any reason within the period specified in § 20(1) to (3) of the Consumer Protection Act (14 days/30 days/12 months from the decisive moment specified by law).

We therefore take the view that if the consumer has also complained about a defect (complained about the goods) and, at the same time or subsequently, within the period specified in § 20(1) 1 to 3 of the Consumer Protection Act, and this was not a contract that cannot be terminated under Section 19(1) of the Consumer Protection Act, the consumer is entitled to do so and the trader is obliged to accept such withdrawal by the consumer.

If the consumer withdrew after the expiry of the period under Section 20(1) to (3) of the Consumer Protection Act, the consumer is entitled to withdraw from the contract only if this is provided for in the Civil Code or in another law or agreed by the parties. When asserting claims arising from liability for defects, such a provision is, for example, Section Section 507(2) of the Civil Code (as amended by Act No. 108/2024 Coll.), according to which, in the case of an irreparable defect that prevents the item from being properly used as an item without defects in accordance with Section 499 of the Civil Code, the acquirer has the right to withdraw from the contract. The acquirer has the same right in the case of removable defects if, due to the recurrence of the defect after repair or due to a larger number of defects, the item cannot be properly used. According to the new wording of Section 507(4) of the Civil Code (as amended by Act No. 108/2024 Coll.), the acquirer has the right to withdraw from the contract even if the transferor expressly assured him that the item has certain characteristics, in particular those specified by the acquirer, or that the item has no defects, and this assurance proves to be false.

14. How should the seller inform the buyer that goods made to order cannot be returned? For example, in the case of delivery of atypical dimensions?

Section 19(1)(c) of the Consumer Protection Act states that the consumer has the right to withdraw from a distance contract and from a contract concluded outside the trader's business premises without giving any reason within the period specified in Section 20(1) to (3), except for a contract whose subject matter is the delivery of goods made according to the consumer's specifications or goods made to measure. 1 to 3, except for contracts for the delivery of goods manufactured according to the consumer's specifications or goods made to measure.

It can be inferred from the above that it is not possible to withdraw from a contract for the delivery of goods "made to order" (according to the consumer's specifications). However, the law imposes an obligation on the trader to inform the consumer of this fact in advance, in the manner specified below.

Section 15(1)(i) of the Consumer Protection Act states that the trader is obliged, before concluding a contract concluded at a distance or a contract concluded outside the trader's business premises or before the consumer sends the order, if the contract is concluded on the basis of the consumer's order, in addition to the information referred to in § 5, clearly and comprehensively inform the consumer that the consumer is not entitled to withdraw from the contract pursuant to § 19(1), or inform the consumer of the circumstances under which the consumer loses the right to withdraw from the contract.

Pursuant to Section 15(4) of the Consumer Protection Act, the trader is obliged to provide the information specified in Section 15(1) of the Consumer Protection Act:

1. in a manner appropriate to the means of distance communication in the case of a distance contract; if the trader provides the information on a durable medium, it must be legible to the consumer,
2. legibly in paper form or, with the consumer's consent, on another durable medium, in the case of a contract concluded outside the trader's business premises.

Pursuant to Section 17(12)(a) of the Consumer Protection Act, the trader is obliged to deliver to the consumer, at the latest upon delivery of the product or commencement of the service, confirmation of the conclusion of the contract at a distance on a durable medium. The confirmation must contain the information specified in § 5(1) and § 15(1), unless the trader has provided this information to the consumer prior to the conclusion of the contract.

Durable medium means any instrument which enables the consumer or the trader to store information addressed to the consumer or the trader in a way accessible for future reference by means of a tangible device, such as paper, a written document stored on paper or another tangible medium, or by means of a technical device controlled by or at the initiative of a trader, such as data, numbers, signs, sounds, images or other forms of information, which is capable of being, upon request of the consumer, being stored in a way accessible to the consumer. corresponds to the purpose for which the information is intended and in a way that allows its unaltered reproduction and use in the future, in particular a document, e-mail, USB stick, CD, DVD, memory card and computer hard drive (Section 2(f) of the Consumer Protection Act).

15. Can I refuse to fulfill an order from a customer outside the EU? Thank you.

No legal regulation imposes an obligation on a trader to offer their goods and services outside their chosen territory, especially if there are legitimate reasons, such as logistical or legal restrictions, which make the delivery of goods and services difficult for the trader, for any reason specified by them.

16. How much does it cost to check and fix all the terms and conditions of an e-shop? Under the upcoming law.

All information is detailed in our E-commerce package on the T | R | C website.

17. Hello, regarding entrepreneurs who are not VAT payers and sell to non-business citizens? Is there no turnover limit for individual countries?

Peter Schmidt, Tax Manager, VGD Slovakia, answers the question

You are probably referring to the new Special provision on the application of tax exemption in another Member State for small domestic businesses (Section 68g, effective from January 1, 2025). As we mentioned in the webinar, these entrepreneurs must have a turnover in the EU (including Slovakia) of less than EUR 100,000 per calendar year, separately for the current calendar year and separately for the previous calendar year. At the same time, they must not exceed the turnover in the Member State in which they wish to carry out taxable transactions. These turnovers in other Member States are not covered by our VAT Act, but it is necessary to contact a tax advisor in the Member State concerned to confirm this turnover. If you are interested, we will be happy to forward your question to a foreign tax advisor.

If your annual turnover in the EU (excluding Slovakia) is less than EUR 10,000 per year, it is possible, under certain conditions, to consider applying Section 16a of the VAT Act and taxing all supplies with Slovak VAT, i.e. avoiding taxation with foreign VAT.