Electronic commerce and electronic business in the Republic of Serbia are subject to regulation:
- Law on Trade (“Official Gazette of RS”, No. 52/2019)
- Law on Electronic Commerce (“Official Gazette of RS”, No. 41/2009, 95/2013 and 52/2019)
- Law on Consumer Protection (“Official Gazette of RS”, No. 62/2014, 6/2016 – other law and 44/2018 – other law)
- Law on Personal Data Protection (“Official Gazette of RS”, No. 87/2018)
- Law on Electronic Document, Electronic Identification and Trust Services in Electronic Business (“Official Gazette of RS”, No. 94/2017) and
- other laws.
National regulations apply to the organization and operation of:
- domestic economic entities (B2G, B2B) as well as on
- contractual relations between domestic consumers and traders (B2C).
Online shopping from a foreign e-merchant
If the consumer decides to order goods from the site of a foreign trader, in that case, the consumer concludes a contract with an element of foreignness. This situation in domestic law is regulated by Article 20 of the Law on Resolving Conflicts of Laws with Regulations of Other Countries (“Official Gazette of the SFRY”, No. 43/82 and 72/82 – corrigendum, “Official Gazette of the FRY”, No. 46 / 96 and “Official Gazette of RS”, No. 46/2006 – other law) according to which the law of the seller’s country of residence applies to such a contract if the applicable law has not been chosen.
The rights that the consumer can exercise depend on the specific guarantees provided by the e-merchant or online platform under the provisions of foreign law.
In practice, platforms usually play the role of intermediaries (for example Aliexpress) and often platforms protect consumers and guarantee a refund in case the consumer does not receive the expected product, which resulting in consumer rights being respected and protected by the online platform.
Online purchase from a domestic (un) registered e-merchant
If the consumer buys the goods online from a trader registered in Serbia, the consumer enjoys all the rights guaranteed by the Law on Consumer Protection.
E-commerce – emerging forms from practice
When we talking about online sales, which often includes not only a direct relationship between consumers and traders but also a platform with a significant role in this contractual relationship, it is crucial to distinguish between the following forms of e-business or e-commerce:
Classic e-commerce (a basic form of e-commerce)
- The consumer orders goods in the e-shop of the trader, i.e. on his website. In this case, the consumer orders the goods directly from the trader (seller).
- Goods will be ordered and paid for online or cash on delivery, and the merchant delivers the goods from his warehouse/warehouse.
- The merchant delivers the delivery independently or through an active courier service.
- An Internet platform that connects merchants and consumers, and very often provides a billing and delivery service. In this case, the consumer orders the goods through the platform, the payment of the goods also goes through the platform, while the delivery can (and does not have to) be done through the platform.
- Bearing in mind that the consumer pays for the ordered goods to the platform, the image (confusion) is created from the consumer’s point of view that the platform is the seller from whom the consumer bought the goods, ie with whom he concluded a contract of sale (distance).
- Here it is important to point out that the platform, in relation to the consumer, can:
1) have the capacity of a seller who sells goods, but
2) It is more often the case that the platform is actually just a link between the seller and the consumer.
From the aspect of the Law on Obligations (“Official Gazette of the SFRY”, no. 29/78, 39/85, 45/89 – the decision of the USJ and 57/89, “Official Gazette of the FRY”, no. 31/93 and. list SCG “, No. 1/2003 – Constitutional Charter – hereinafter: ZOO) the platform has the status of an intermediary in sales.
Information society service
From the aspect of the Law on Electronic Commerce, the e-commerce platform provides an information society service.
According to the provisions of this law:
- Information society service is a service that is provided at a distance, as a rule, for a fee via electronic equipment for data processing and storage, at the personal request of service users, especially online shopping, offering data and advertising via the Internet, electronic search engines and search data and services transmitted by the electronic network, providing access to the network or storing data of service users.
- The provider of information society services is a legal entity or entrepreneur, as well as a natural person who has the status of a trader in accordance with the law governing trade, which provides information society services.
- Service user is any natural or legal person who uses information society services for professional or other purposes.
An advertising platform (an advertising platform) that connects its users who can be both individuals – consumers and businesses. The advertising platform connects people who publish ads for the sale of goods/services and people who want to buy them. The advertising platform provides an information society service.
Accompanying documentation with goods sold over the Internet
In the case of online sales, the trader is obliged to, within a reasonable time after the conclusion of the contract, and at the latest at the time of delivery of the goods, on a durable medium, deliver the following documents to the consumer:
- invoice, which later proves the existence of the contract of sale in a possible complaint procedure and requires the exercise of their rights based on the seller’s responsibility for the conformity of the sold goods/based on the guarantee
- withdrawal form (unless if it is a contract to which an exemption from the right of withdrawal applies)
- a legible and comprehensible pre-contractual notice made in accordance with Article 27 of the Law on Consumer Protection
- contract or contract document
- instructions for use/installation, if it is a sale of technical goods – TV, telephone, computer, electrical appliances, etc. (Article 47 of the Law on Consumer Protection).
These documents are delivered to the consumer on a durable medium, which means that their written (printed) form is not required, but the documents can be sent to the consumer electronically.
According to the EU Directive on Consumer Rights 2011/83, a durable medium is a means that enables a consumer or trader to store information addressed to him and which he can subsequently access and reproduce in unaltered form for a period appropriate to the purpose of storing information (data).
Pursuant to Article 31 of the Law on Consumer Protection, the invoice should be submitted/sent no later than the day of delivery of the goods (and not after a few days from the day of delivery). This is also important from the point of view of calculating legal deadlines (for conformity of goods, for reconsideration, warranty period, etc.), bearing in mind that deadlines are calculated from the day of delivery or transfer of goods to the consumer’s country.
The right to change one’s mind from online shopping (legal instrument of consumer protection)
When buying goods online, the consumer has the right to change his mind and return the goods to the trader within 14 days, without explanation.
A period of 14 days protects the consumer by giving him enough time to:
- inspect goods
- determine whether it is precisely the goods that he saw on the computer monitor, whether these characteristics and features are highlighted in the e-shop, then
- compare quality with price and
- finally decides whether to stay with the purchase or give it up (in the literature cooling off period).
This period of 14 days is calculated from the day when the goods are delivered to the consumer. The consumer returns the goods to the trader at his own expense unless the trader has agreed to bear them (e.g. the trader’s business policy to take the goods from the consumer at his own cost).
The legally established right of the consumer to cancel the purchase and return the goods to the trader is a correlative obligation of the trader to return the money to the consumer, in the full amount paid by the consumer. However, if the consumer used the goods, i.e. used the goods within a given period of 14 days in a way that reduced its use-value, the trader is not obliged to return the full amount to the consumer.
Exceptions to the right to change one’s mind
The right to change your mind about online shopping does not always apply. Although it applies in most cases, there are exceptions when this right does not apply, which is set out in Article 37 of the Law on Consumer Protection.
The consumer has no right to cancel the online purchase in case:
- Deliveries of goods produced according to special consumer requirements or personalized
- Deliveries of goods that are subject to deterioration or have a short shelf life
- Food preparation and delivery service
- Service related to leisure activities if the contract provides for a specific deadline or period of execution
- Deliveries of sealed goods that cannot be returned for health or hygiene reasons and that are unsealed, after delivery and
- Delivery of sealed audio, video or computer software, which are unsealed after delivery.
If a trader sells goods which, under Article 37 of the Law on Consumer Protection, are an exception to the application of the right to change his mind, it is necessary to clearly state the notice in the webshop of that trader, so that consumers can be informed.
The trader shall be obliged, according to Article 27, paragraph 1, item 6) of the Law on Consumer Protection, to inform the consumer before concluding the contract when the right to withdraw is not provided, i.e. when the exception to the application of that right applies, as well as the circumstances under which the consumer loses that right, eg after opening or printing an audio/video or computer software, he loses the right to cancel the purchase).
The right to change one’s mind from offline purchase (voluntary consumer protection instrument)
The right to change one’s mind and withdraw from the contract concluded in the sales facility of the trader (traditional or offline purchase) is not provided as a legal instrument for the protection of consumer rights. However, it is not uncommon for retailers to give consumers the right to change their mind for purchases made in retail outlets, although they are not required to do so by the Consumer Protection Act.
The business policy of the trader may provide for a rule that allows the consumer to return the purchased goods if he does not like them and to get his money back. This right is established by traders by internal acts, as a form of good trade practice.
The consumer is allowed to return later the goods, which he bought in the store and which is entirely correct because it does not suit him (size, colour, model) or he does not like it, he changes his mind, etc. Return of goods or termination of the contract is done for reasons of a subjective nature.
As for the period in which the consumer can exercise this right, it is a matter of the trader’s business policy how much that period will be (7, 14, 30 days or longer). Also, the trader prescribes the conditions under which the consumer exercises this right.