In a recent decision of the Consumer Protection Service (“CPS”), which is the body responsible for the application of the Unfair Commercial Practices Law (“Law”) in Cyprus, an administrative fine of €50,000 was imposed on New Nissan Cyprus Ltd, (“Company”) the company which represents Nissan brand in Cyprus. Following a customer’s complaint that the car he had bought, the Nissan Qashqai, was not within the specifications of the advertising material, the CPS initiated an investigation. In particular, when the consumer received the car, he noticed that, contrary to the specifications and much to his surprise no parking sensors existed and that the car was built in 2015 instead of 2017.
Among others, the Law describes as misleading, a commercial practice that contains false or inaccurate information or which in any way deceits or it might deceit the average consumer with regards to one or more of the characteristics mentioned in the Law. The date of manufacture and the specifications of the product are some of those characteristics.
Based on the above, the CPS initiated an investigation to examine the allegations of the customer and sent a letter to the Company, requesting for the Company’s statement in relation to the complaint and also for the advertising material which had been used in the course of promoting of the car.
The Company did not reply within the specified time-frame. A reminder was sent by the CPS, to which the Company replied that the issue had been resolved, to the full satisfaction of the customer. A letter was sent again, informing the Company that the evidence admitted was insufficient and asked once again for the marketing material. The Company failed to do so again. The Company went only as far as to state that: the marketing material presented related to cars made in 2016 which included equipment parking sensors; the car in question was manufactured in December 2015 and that this was made clear to the customer who got a better price due to this reason; and the consumer’s complaint had been dealt to his satisfaction. Installation of parking sensors was among the benefits given to the customer due to his complaint.
Having reviewed the allegations, the CPS formed the opinion that prima facie the Company was liable and asked it to communicate its position and provide any supportive documentation it considered appropriate. It is worth mentioning that according to the Law, it was the Company’s obligation to provide sufficient evidence on time, to support its allegation and failure to do so, entitled the CPS to consider the allegations as ill-founded.
The Company replied by stating that, the year of build was always mentioned to customers, and numbered the measures it had already taken to prevent such incidents in the future.
Following that reply, the CPS went on to examine the available evidence and stated that the Company had failed to prove its position nor did it provide any views or information as to the provision of misleading information on the specifications of the car. The CPS further observed that the subsequent installation of parking sensors might amount to an indirect acceptance of provision of misleading information to the consumer.
Based on the above the CPS identified that the Company was in breach of the Law as it had failed to provide to the customer important information which had the risk of altering his behaviour towards the product in question. The CPS, by examining the mitigating and aggravating factors imposed a fine of €50,000. Among the aggravating actors was the failure of the Company to refute the allegation on selling the car without parking sensors contrary to the advertising material.
- The Company even though a repeated offender did not cooperate and approached the complaint as an isolated event which had been settled. However, the CPS is entrusted with the task of safeguarding the interests of the consumers as a whole and not, as such, adjudicate on a specific case. Hence the CPS in its decision stated that although the complaint had been dealt to the consumer’s satisfaction was not of its direct concern, although it could count as mitigating factor.
- With the utmost respect to the CPS, we cannot agree that failure to refute an allegation is an aggravating factor. Had the Company defeated the allegation, it would not have been found liable. The fact that it did not refute the allegation was the basis for the finding by the CPS that the Company was liable. The very reason that set the foundation for the Company’s liability, cannot at the same time count as an aggravating factor.
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