How to exercise your Consumer rights?

If you as natural person purchase goods or get services from a seller, there is a special Law that protects your interests. Law on Consumer Protection stipulates several legal measures that serve to help you to exercise your consumer rights. Particularly important measure concerns  protection of the right to conformity of goods. The conformity of goods implies  that the goods show the quality that are normal in goods of the same type or the quality that the seller has presented as a model, etc…

If the goods do not have such features as described, consumer is entitled to demand from the seller to eliminate lack of conformity, without additional charge, through repair or replacement. The seller is responsible for any lack of conformity of the goods that occurs within two years as of the date the risk passed to the consumer (the transfer of risk to the consumer is, in principle, the day the goods are delivered to consumer). Besides that, if a lack of conformity occurs within six months from the day of passing the risk to the consumer, the lack of conformity shall be assumed to have existed at the time of the passing the risk. Thus, the seller has the burden of proof that the goods were in conformity at the time of purchase..

In any case, for the protection of rights, it is necessary to make complaint. The consumer can make complaint orally to the seller, by the phone, in writing, or by electronic way of communication. The seller is obliged to respond to the complaint within eight days, and to decide about (non)acceptance of the complaint. In case of rejection of the compalint, the seller is obliged to inform the consumer about the way to protect consumer rights. When making the complaint, the consumer should bring  the invoice. However, the seller is obliged to consider the complaint even if the consumer does not have the invoice, but instead submits any other mean of purchase confirmation which contains the date, time and place of payment of goods, e.g., the POS machine receipt if the goods were paid by a bank card.

It’s important to point out that there are plans to restore the collective judicial protection, that already existed until 2013. The comeback of Class Action Lawsuits is an obligation in the accession process of the Republic of Serbia to the European Union, because the EU passed a Directive according to which the candidate countries must provide the citizens with this type of protection.

From the point of view of the state and the state budget, the  advantage of collective judicial protection mostly concerns  the courts which will be relieved of mass litigations led by a single person, because with Class Action Lawsuits more citizens will be covered by one lawsuit against an party who violated or massively violated consumer rights.

 Class Action Lawsuit is also especially important to the consumers since they will be able to protect their consumer rights in a low-cost and quick way. For example, if a trip is organized by a travel agency, and it shows that it has deficiencies, in that case travelers could use this type of court protection. Also, this could be applied in the case related to sale of FMCG, and many other examples.

However, until collective judicial protection is restored, the consumer whose rights are obviously violated could chooses at this point between three options:

1. Official Consumer Complaint,
2. Out-of-Court Settlement of Consumer Disputes,
3. Right to court protection.

1. Official Consumer complaint: the consumer who is dissatisfied with the response to a complaint submits this Official Consumer Complaint to the registered consumer associations. The news is that there is an easier way to file the Official Consumer Complaint – by electronic submission. On the official website of the Ministry of Trade, Tourism and Telecommunications ( “Ministry“), there is an platform that enables online submission of Official Consumer Complaint. It’s enough to fill in the data in the Official Consumer Complaint model on official website.  Although this way of protection is quite simple, it isn’t always effective because the seller is not obliged to respond to the Official Consumer Complaint.

• Out-of-Court Settlement of consumer disputes is a proceeding carried out by special bodies from the list of bodies compiled by the Ministry. The consumer initiates the procedure by submitting a Motion to the Ministry. Then the Ministry delivers the Motion to the special body. The Out-of-Court Settlement proceedings can last no longer than 90 days and it ends by concluding an agreement between the consumer and the seller, in which the content of the agreement is determined by them. Otherwise, if no agreement is reached, the special body makes a written recommendation on the way to resolve the dispute. However, the recommendation is not binding.

• Right to court protection: The consumer can file a lawsuit to the court if the seller did not respond to the complaint within the deadline, or the seller rejects the request from the complaint, or in case of violation of another consumer right. Previous attempt to  Out-of-Court Settlement  does not exclude the exercising of the right to court protection. There is a special rule for civil proceedings which regulates the proceedings related to consumer disputes. First of all, the consumer does not pay the court fee for filing the lawsuit and for the judgment, if the value of the dispute does not exceed the amount of RSD 500,000.00 Then, there is a ground for establishment of jurisdiction based on the residence of a consumer, in addition to general territorial jurisdiction. The lawsuit is not delivered to the seller for a response, but instead the  summon for the hearing is delivered along with the claim, which will be held within 30 days from delivery of the claim. An great advantage for the consumer is related to legal presumption about burden of proof, if a lack of conformity occurs within six months from the day of passing the risk to the consumer. Thus, in consumer disputes it is often the case that the seller has the burden of proof even though the seller is in the role of defendant in the dispute.

Having in mind above-mentioned, in theory it seems easy to exercise consumer rights. However, the fact is that it is sometimes impossible to do it, especially if consumers do not pay attention to the documentation that the buyer/service provider or courier operator delivers to consumer during the purchase, when consumers sign and agree with the content of that documentation.

In order to avoid later troubles and to successfully protect your rights it is important to carefully inspect the goods during purchasing (if it is electronics, ask the seller to plug the goods in and test it) and immediately indicate all visible defects. This is especially important in the case of e-commerce. The sellers often submit to the consumer a documentation for signing in which is stated that the consumer has inspected the goods and that the goods has no defects and that the consumer waives the right to complain due to lack of conformity. Courier services have the same custom of making you sign documentation in which it is stated that you have inspected the package and that the package has no visible defects.

If the seller or courier refuses to allow you to inspect the goods, you can always cancel the purchase. In practice, it turned out that in those situations that it is much better to withdraw from  purchase, than to purchase the goods, sign the documentation which seller or courier submits to you, and later find out that the goods have a lack of conformity. Because if it turns out that the goods have a lack of conformity, you will lose the goods and the money and the right to complain. On the other hand, we want to stress out  that the above mentioned does not refer to so-called “hidden defects”. Namely, we are talking about defects that are not visible with  the bare eye, i.e. deficiencies cannot be noticed even after a careful inspection of the goods (which includes an inspection of the electrical goods by plugging goods in and activating of goods). Thus, the legislator prescribed a two-year deadline for complaint, and possibility to refer to hidden defects within this deadline.