The law today
Law No. 21.398, which establishes measures to encourage the protection of consumer rights, is published.
On December 24, 2021, Law No. 21.398 was published in the Official Gazette, which establishes a series of measures to raise the standard of protection of consumer rights or the so-called “Pro-Consumer Law”.
This law amends, among other regulatory bodies, Law No. 19.496, which establishes rules for the protection of consumers’ rights (or “LPC”), Law No. 18.010, which establishes rules for credit operations and other money obligations, and the Law on Sales and Services Tax, contained in Decree Law No. 825 of 1974.
The main amendments introduced by this law refer to matters that involve all adhesion contracts and, especially, e-commerce, obliging the industry to adjust its contractual terms, as well as the terms and conditions that have been implemented in e-commerce. In this regard, the most relevant changes in this regard are the following:
1. General recognition of the pro-consumer principle, which will be fully applied in the interpretation of adhesion contracts, both in ambiguous and contradictory clauses.
2. New consumer rights, with the possibility for the consumer to go directly to court and expressly recognizing as consumer rights those contained in different bodies of law.
3. The duration of the legal guarantee of the products is modified, extending it from 3 to 6 months, and entering into force on March 25, 2022.
4. Modifications to consumer protection in adhesion contracts, prohibiting abusive clauses in them, establishing obligations to adapt contracts to make them accessible to people with disabilities and establishing the obligation of suppliers to inform consumers about the mechanisms and conditions to terminate such contracts.
5. Extension of the right of withdrawal to commerce carried out by electronic or distance means, which may be exercised within 10 days from the acquisition or physical delivery of the product.
6. Modifications referred to basic commercial information of durable products and regarding costs and times in dispatch services.
7. New measures for the protection of consumers’ personal data are established, granting supervisory powers to SERNAC in data protection matters and establishing the exercise of collective actions by SERNAC in these matters, limited to a consumer relationship, and provided that the powers do not conflict with the legal powers of other bodies.
Notwithstanding the aforementioned amendments, this Law makes relevant changes in financial, aeronautical, education certificate and transportation matters.
Given the above, and in view of this and other regulatory changes that regulate the consumer relationship, the recommendation is that suppliers review and adjust their contracts of adhesion, as well as their terms and conditions and privacy policies to the regulations applicable to each of their businesses.
Law No. 21.320 amends the Law on the Protection of Consumers’ Rights in matters of extrajudicial collection and provides for transitory measures by COVID-19.
On April 20, 2021, Law No. 21.320 was published in the Official Gazette, which amends Law No. 19.496, on Protection of Consumer Rights (LPDC), regarding extrajudicial collection and other consumer rights, along with establishing transitory measures, in connection with the COVID-19 pandemic.
The most important amendments made by this law correspond to the following:
1. The companies that carry out extrajudicial collection, as well as the credit providers that carry out collection processes, when initiating any action aimed at obtaining the payment of the debt, must inform the means of contact or means of contact so that the consumer can communicate, with respect to the extrajudicial collection actions.
2. It adds a series of principles that must be applied to out-of-court collection actions, regardless of their nature, means of communication or time at which they are carried out, namely: (a) proportionality, (b) reasonableness, (c) justification, (d) transparency, (e) truthfulness, (f) respect for the dignity and physical and psychological integrity of the consumer and (g) privacy of the household.
3. In view of the above, telephone contacts, visits and other actions aimed at extrajudicial collection are limited, and the sending of documents, messages or communications that appear to be or make reference to a writing, resolution or judicial action of any kind is prohibited.
4. Likewise, the supplier shall immediately terminate the extrajudicial collection actions once the consumer has been summoned in a collection lawsuit or a bankruptcy proceeding has been initiated, and the competent court is empowered to order the immediate suspension of the extrajudicial collection actions, when the facts and background information provided so require.
5. Certain provisions of the LPDC, such as default interest rates and the system for calculating the expenses generated by extrajudicial collection, shall also be applicable to money lending transactions in which the entities supervised by the CMF are involved.
6. The range of application of Paragraph 3°, on consumer credit, is extended to all suppliers and to all consumer transactions governed by the LPDC, even when they do not involve the granting of credit to the consumer.
7. Finally, in view of the current health circumstances and restrictions, it is provided that, during the state of constitutional exception of catastrophe due to public calamity, due to the COVID-19 pandemic, out-of-court collection calls or visits may be made only twice a month, with respect to each debtor.
SERNAC provides guidelines for the approval of compliance plans of suppliers, in the context of an administrative or judicial procedure.
On December 9, 2020, the National Consumer Service (“SERNAC”) issued Exempt Resolution No. 813, which contains the Interpretative Circular on Procedure for Approval of Plans to Comply with Article 24, paragraph 4(c) of Law No. 19.496, which establishes rules on the Protection of Consumer Rights.
In effect, the aforementioned article establishes that substantial collaboration by the supplier to SERNAC will be considered an extenuating circumstance in the context of the application of sanctions, it being understood that such collaboration exists if the supplier has a specific compliance plan referred to the matters subject to the infringement, which has been previously approved by SERNAC and which proves its effective implementation.
Under this budget, the Circular details the steps to be followed by suppliers to access the approval of the compliance plans implemented, in particular, establishing: i) the requirements for the approval of a compliance plan, ii) the existing approval procedures, iii) the validity of the plan, iv) the publicity of the approvals, and iv) the treatment of the information provided by suppliers, during the approval procedure.
Among the main points to be highlighted is the possibility for the supplier to process its application, through an abbreviated procedure, by attaching to its request a certificate issued by an appropriate certifying entity, i.e., one previously verified and registered by SERNAC, by which it is accredited that the compliance plan is implemented in accordance with Law No. 19.496 and other applicable legal and administrative regulations.
However, in the event that the referred certification has not been obtained, the supplier may also submit its compliance request to the general procedure, in which case SERNAC will hire a third party to prepare a technical report that will allow the analysis of the plan.
In case you require additional information on this matter, you may contact Rocio Vergara (email@example.com) and/or Andrea Abascal (firstname.lastname@example.org).