Are you discriminated against as a consumer?

Chapters of the article

• The clash of two sets of rights
• How do the two principles apply to each other?
• Consumer discrimination in practice
• Consumer protection

The clash of two sets of rights

When we are about to enter into a contractual relationship, for example to grant a lease or make a sale, autonomy of the will generally applies, including the free choice of the contractual partner. At the same time, however, the Consumer Protection Act provides us with a prohibition on consumer discrimination, according to which the seller may not discriminate against the consumer when selling products or providing services. The Anti-Discrimination Act also prohibits discrimination in, inter alia, matters of access to goods and services, including housing, when offered to the public or in the provision of such services, with the proviso that an individual has the right to equal treatment and not to be discriminated against in legal relations covered by the Act.

If there is a conflict between two different rights, then they must be weighed against each other in some way to determine which one to give priority to. First of all, it should be examined whether the person has any objective reason for treating the different subjects differently and there should be a comparison of the weight of the fundamental rights in conflict. It must be said that the outcome may vary considerably from case to case depending on the circumstances.

How do these two principles apply to each other?

Let us first define what is meant by consumer discrimination. We understand it as commercial practices that unjustifiably favour some consumers over others in similar transactions or services – the aim of the prohibition of discrimination in the field of consumer protection is therefore to conclude identical contracts on identical terms.

The theory distinguishes between two types of discrimination – direct and indirect. Direct discrimination is defined as conduct that treats someone less favourably than another person in a comparable situation for reasons that are not permissible. Indirect discrimination is a situation where, for example, I introduce a rule that does not appear to target a particular group of people, but which, when applied, causes discrimination. Indirect discrimination is much harder to prove.

Consumer discrimination in practice

According to the conclusions and regular surveys of the Czech Trade Inspection Authority, cases of discrimination still occur, although the detected and proven cases range from a few or small tens of cases each year. However, it is clear that not everything is detected and the problem is in fact much bigger. In particular, the problem is the discriminatory behaviour of some sellers towards foreign visitors, whether it is so-called service surcharges or double prices for the same performance. There are still cases of discrimination against consumers of Roma ethnicity, which still occur in some localities. According to the conclusions of the CTIA, there were also cases of different prices for the same services or discrimination on the grounds of age.

Consumer protection

Anyone who has been affected by such conduct has the right to seek in court that the discrimination be abolished, that the consequences of the discriminatory intervention be remedied and that adequate compensation be given. It is then for the court to assess what constitutes conduct within the bounds of the law.

The Constitutional Court also contributed its bit to the mill in defining what is or is not discrimination against a consumer in the controversial Brioni case. A decision by the Czech Trade Inspection Authority and a number of courts, including the Supreme Court, found that a hotel operator had committed discrimination by requiring Russian citizens to sign a declaration that they did not agree with the annexation of Crimea as a condition for staying in the hotel. The Constitutional Court sided with the complainant in a rather controversial ruling at the time. In doing so, it referred both to the autonomy of the will and to the fact that the content of individual rights may differ in certain situations. In its reasoning, it used, among other things, a literary reference to Dr Galen from Karel Čapek’s The White Sickness (Galen refused to provide his medicine to people who could stop the war, thus applying a double standard). The finding was received very ambiguously and drew an indignant response from both the non-expert public and the legal community.

Similar passions have been aroused by the possibility of exercising free will when one wants to enter into a lease agreement as a homeowner. The views of state institutions may differ in this respect. Some court decisions have established that a private owner has much less limits on the autonomy of the will and may, for example, choose whether (not) to enter into a contract with a member of a certain group of people (disabled, Roma, homosexuals). The Litoměřice court concluded this in its 2015 judgment. However, it added in the same breath that, for example, real estate brokers are subject to completely different criteria in this respect. The latter would no longer be allowed to make such a choice. Not to mention hotels.

It should be added that the former ombudsman and then deputy ombudsman, Anna Šabatová, was far from benevolent in this respect. According to her, it is clearly impossible to deny someone access to housing simply because they belong to a certain ethnic group.