Decree-Law No. 19/2008 of June 9 on the Complaint Book

Decree-Law No. 19/2008 of June 9

The complaint book constitutes one of the instruments that make the exercise of the right to complain more accessible, by providing the consumer with the possibility of lodging a complaint at the location where the conflict occurred.

The creation of the complaint book was based on the concern for a better exercise of citizenship through the requirement of respect for consumer rights, and its justification lies in the need to make the resolution of conflicts between citizen consumers and economic agents more expeditious, as well as to allow the identification, through a standardized form, of conduct contrary to the law. For this reason, it is necessary to encourage and promote its use, introducing mechanisms that make it more effective as an instrument for defending the rights of consumers and users, in order to achieve material equality of the parties involved as referred to in Article 13 of Law No. 88/V/98 of December 31.

Currently, the complaint book is provided for in hotel and similar establishments, travel and tourism agencies, and in the services and bodies of the Public Administration where public service is provided, in accordance with Article 46 of Decree-Law No. 14/94 of March 14, Article 65 of Regulatory Decree No. 3/94 of February 7, and Article 27 of Law No. 39/VI/2004 of February 2, respectively, without, however, having had effective existence until now due to lack of regulation.

Given the brevity of the list, many sectors of activity are not covered by this obligation, which is not justified, especially regarding the provision of essential public services. The Government intends, in compliance with its Programme, to extend the mandatory existence of the complaint book to more sectors. This is the main objective of this legislation: to create a general obligation for all suppliers of goods or providers of services to possess and make available the complaint book. Prerequisites for this obligation are the existence of a physical, fixed or permanent establishment, direct contact with the public, and the supply of a good or the provision of a service.

The obligation does not cover services and bodies of the Public Administration, which continue to be governed by specific legislation.

This legislation provides that the duty to forward the complaint rests with the service provider or the supplier of the good. However, with the aim of ensuring that the complaint actually reaches the competent entity, the legislation allows the consumer to send the complaint themselves. To this end, the consumer's right to information is reinforced, both through the identification of the competent entity on the sign and on the complaint form itself, which explicitly contains information about this option.

The mandatory existence and availability of the complaint book in all establishments supplying goods or providing services, including those listed in the Annex to this Decree-Law, reinforces the procedures for defending the rights of consumers and users in the context of the supply of goods and provision of services.

It is also established that complaints arising from the supply of a good or the provision of a service by economic agents not identified in the Annex to this Decree-Law must be forwarded to the competent market control entity or to the regulatory entity of the sector in which the economic agents operate. If neither exists, the complaint must be sent to the General Inspectorate of Economic Activities, ensuring that consumers are not left unprotected in these situations. Thus, the guarantees of effectiveness of the complaint book as an instrument for conflict prevention are strengthened, contributing to the improvement of the quality of services provided and goods sold.

The regulatory agencies and business and consumer defense associations were consulted, given that the National Consumption Council created by Regulatory Decree No. 17/2007 of December 10, pursuant to Article 21 of Law No. 88/V/98 of December 31, has not yet been established.

Therefore,

In the exercise of the power conferred by paragraph a) of paragraph 2 of Article 203 of the Constitution, the Government decrees the following:

CHAPTER I Object and Scope of Application

Article 1 Object

1. This Decree-Law establishes the obligation to possess and make available the complaint book in all establishments supplying goods or providing services, including those listed in the Annex to this Decree-Law, which forms an integral part thereof.
2. The provisions of this legislation apply to the services and bodies of the Public Administration that provide public water supply, wastewater sanitation, and urban waste management services, which are now subject to the obligations set out in this Decree-Law.
3. Without prejudice to the provisions of paragraph 1, suppliers of goods and providers of services may make available on their website instruments that allow consumers to lodge complaints.
4. The Annex referred to in paragraph 1 may be amended by a ministerial order issued by the Government member responsible for the sector.

Article 2 Scope of Exclusion The regime provided for in this legislation does not apply to the services and bodies of the Public Administration covered by Article 27 of Law No. 39/VI/2004 of February 2.

Article 3 Definitions For the purposes of this Decree-Law, the reference to "supplier of goods or provider of services" comprises the establishments referred to in the previous article that: a) Are installed on a fixed or permanent basis, and in which the activity is exercised, exclusively or mainly, in a habitual and professional manner; and b) Have contact with the public, notably through customer service services intended for the offer of products and services or for maintaining customer relationships.

CHAPTER II Complaint Book and Procedure

Article 4 Obligations of the supplier of goods or provider of services

1. The supplier of goods or provider of services is obliged to: a) Possess the complaint book in the establishments to which the activity applies; b) Provide the complaint book immediately and free of charge to the user whenever requested; c) Display in their establishment, in a highly visible location with characters easily legible by the user, a sign with the information: "This establishment has a complaint book" and the complete identification and address of the entity to which the user must submit the complaint; and d) Maintain, for a minimum period of three years, an organized archive of complaint books that have been closed.
2. The supplier of goods or provider of services cannot justify the lack of a complaint book in the establishment where the user requests it on the grounds that it is available in other establishments, departments, or branches.
3. The supplier of goods or provider of services or the establishment employee cannot condition the presentation of the complaint book to the need to identify the user, without prejudice to the provisions of paragraph a) of paragraph 2 of Article 5.
4. When the complaint book is not immediately provided to the user, the user may request the presence of the police authority to remove this refusal or for that authority to take note of the occurrence and forward it to the competent entity to supervise the sector in question.

Article 5 Lodging the Complaint

1. The complaint is lodged by completing the complaint form.
2. In lodging the complaint, the user must: a) Correctly and completely fill in all fields relating to their identification and address; b) Correctly fill in the identification and location of the supplier of goods or provider of services; and c) Clearly and completely describe the facts giving rise to the complaint.
3. For the purposes of the provision in paragraph b) of the preceding paragraph, the supplier of goods or provider of services is obliged to provide all necessary elements for the correct completion of the fields relating to their identification, and must also confirm that the user has completed them correctly.

Article 6 Submission of the Complaint Form and Statements

1. After completing the complaint form, the supplier of the good, the provider of the service, or the establishment employee must detach the original from the complaint book, which must be forwarded within 10 working days to the competent market control entity or to the sectoral regulatory entity.
2. If it concerns a supplier of goods or provider of services not identified in the Annex, subject to the provisions of the preceding paragraph, the original of the complaint form must be forwarded to the competent market control entity or to the sectoral regulatory entity or, in the absence of either, to the central inspection services for economic activities.
3. For the purposes of the preceding paragraphs, the submission of the original of the complaint form may be accompanied by the statements that the supplier of goods or provider of service deems necessary to provide, as well as by the clarifications given to the complainant as a result of the complaint.
4. After completing the complaint form, the supplier of the good, the provider of the service, or the establishment employee must deliver the duplicate of the complaint to the user, keeping the triplicate in their possession, which forms an integral part of the complaint book and cannot be removed from it.
5. Without prejudice to the provisions of the preceding paragraphs, the user may also forward the duplicate of the complaint form to the competent market control entity or to the sectoral regulatory entity, in accordance with the instructions contained therein or, if it concerns a supplier of goods or provider of services not identified in the Annex to this Decree-Law and if neither of these entities exists, to the central inspection services for economic activities.

Article 7 Procedure of the Competent Market Control Entity and the Sectoral Regulatory Entity

1. For the purposes of applying this legislation, it is the responsibility of the competent market control entity or the sectoral regulatory entity to: a) Receive the complaint forms and, if applicable, their respective statements; b) Initiate the appropriate procedure if the facts resulting from the complaint indicate the commission of an administrative offence provided for in specific applicable legislation.
2. Outside the cases referred to in paragraph b) of the preceding paragraph, the competent market control entity or the regulatory entity must notify the supplier of goods or provider of services to submit, within 10 working days, the statements they deem appropriate.
3. When the complaint form results in sufficient identification of the complainant, the competent market control entity or the sectoral regulatory entity may, through written communication, inform them of the procedure or measures that have been or will be adopted as a result of the complaint lodged.
4. When the complaint form results in a dispute situation, the competent market control entity or the sectoral regulatory entity must, through written communication and after all necessary steps to legally restore the situation have been completed, inform the complainant of the procedure or measures that have been or will be adopted as a result of the complaint lodged.

CHAPTER III Publication and Sale of the Complaint Book

Article 8 Model of the Complaint Book The model of the complaint book and the rules regarding its publication and sale, as well as the model of the sign referred to in paragraph c) of paragraph 1 of Article 4 of this legislation, are approved by a joint ministerial order of the Government members responsible for the areas of economy and consumer defense, to be issued within 90 days from the date of publication of this legislation.

Article 9 Acquisition of a New Complaint Book

1. The closure, loss, or misplacement of the complaint book obliges the supplier of goods or provider of services to acquire a new book.
2. The loss or misplacement of the complaint book obliges the supplier of goods or provider of services to immediately communicate this fact to the regulatory entity or, in its absence, to the sectorally competent market control entity with which the book was acquired.
3. The loss or misplacement of the complaint book also obliges the supplier of goods or provider of services, during the period in which they do not have the book, to inform the user of the entity to which they must turn to lodge a complaint.

CHAPTER IV Administrative Offences

Article 10 Administrative Offences

1. The following constitute administrative offences punishable by the application of the following fines: a) From 25,000.00$00 to 350,000.00$00 and from 350,000.00$00 to 3,000,000.00$00, depending on whether the offender is a natural or legal person, for violation of the provisions of paragraphs a), b) and c) of paragraph 1 of Article 4, of paragraphs 1, 2 and 4 of Article 6, and of Article 9; b) From 25,000.00$00 to 250,000.00$00 and from 50,000.00$00 to 500,000.00$00, depending on whether the offender is a natural or legal person, for violation of the provisions of paragraph d) of paragraph 1 of Article 4 and of paragraph 3 of Article 6.
2. Negligence is punishable, and the minimum and maximum limits of the applicable fines are reduced by half.
3. In case of violation of the provision in paragraph b) of paragraph 1 of Article 4, combined with the occurrence of the situation provided for in paragraph 4 of the same article, the amount of the fine to be applied cannot be less than half of the maximum amount of the fine provided.
4. Violation of the provisions in paragraphs a) and b) of paragraph 1 of Article 3 gives rise, in addition to the application of the respective fine, to the publication of the administrative offence conviction in a local or national newspaper, at the expense of the offender.

Article 11 Accessory Sanctions

1. When the seriousness of the offence justifies it, the following accessory sanctions may also be applied, in accordance with the general regime for administrative offences: a) Temporary closure of premises or establishments; b) Prohibition of exercising the activity; and c) Deprivation of the right to a subsidy or benefit granted by a public entity or service.
2. The sanctions referred to in the preceding paragraph have a maximum duration of two years counted from the date of the final condemning decision.

Article 12 Supervision and Preparation of Administrative Offence Proceedings

1. The supervision and preparation of the administrative offence proceedings provided for in paragraph 1 of Article 10 are the responsibility of: a) The General Inspectorate of Economic Activities, when committed in establishments for the supply of goods and provision of services mentioned in sub-paragraphs i) to xvii) of paragraph a) in paragraph b) of the Annex; b) The General Directorate of Sports, when committed in establishments mentioned in sub-paragraph xx) of paragraph a) of the Annex; c) The Institute of Cultural Heritage, when committed in establishments mentioned in sub-paragraphs xxii and xxiii) of paragraph a) of the Annex; d) The General Directorate of Pharmacies, when committed in establishments mentioned in sub-paragraph xxi) of paragraph a) of the Annex; e) The competent services of the government department responsible for construction, when committed in establishments mentioned in sub-paragraphs x, xi, xii and xiii) of paragraph a) of the Annex; f) The competent services of the government department responsible for solidarity, when committed in establishments mentioned in paragraphs d) and e) of the Annex; g) The competent services of the government department responsible for health, when committed in establishments mentioned in paragraph f) of the Annex; h) The Bank of Cabo Verde, when committed in establishments mentioned in paragraphs g) and h) of the Annex; i) The competent services of the government department responsible for education, when committed in establishments mentioned in paragraphs i) and j) of the Annex; j) The respective captaincies, when committed in establishments mentioned in paragraph k) of the Annex; k) The competent services of the government department responsible for animal health, when committed in establishments mentioned in paragraph l) of the Annex; and l) The respective regulatory entities, when committed in establishments of service providers mentioned in paragraph c) of the Annex.
2. The General Inspectorate of Economic Activities is responsible for the supervision and preparation of proceedings related to the administrative offences provided for in paragraph 1 of Article 9, when committed in establishments for the supply of goods and provision of services not mentioned in the Annex and when there is no competent market control entity and no sectoral regulatory entity.
3. The revenue from fines shall revert 60% to the State, 30% to the entity that prepares the administrative offence proceedings, and 10% to the entity that applies the fine when it does not coincide with the entity that prepares the proceedings.
4. When the entity that prepares the proceedings and applies the fines coincides, the distribution of the revenue shall be 60% to the State and 40% to the entity that prepares the proceedings.

CHAPTER V Statistical Information, Uniformity of the Regime, and Evaluation of the Legislation

Article 13 Information on Received Complaints

1. The regulatory entities and the competent market control entities must forward to the central consumer defense services, on a semi-annual basis, information, including regarding the type, nature, and subject of the complaints submitted, identification of the complained entities, and the time frame for resolving complaints.
2. For the purposes of applying the preceding paragraph, the central consumer defense services shall define in a document to be sent to the sectoral regulatory entities and the competent market control entities, within 30 days from the date of entry into force of this legislation, the information requested.

Article 14 Other Procedures

1. The lodging of the complaint in accordance with the provisions of this legislation does not exclude the possibility of the user submitting complaints by any other means and does not limit the exercise of any rights constitutionally or legally enshrined.
2. Without prejudice to the procedures provided for in this legislation, the competent market control entities and the sectoral regulatory entities may establish internal mechanisms, within their competencies, that allow for a more expeditious resolution of the complaint and that do not diminish the defense guarantees of the parties.

Article 15 Evaluation of the Execution of the Legislation At the end of the 1st year from the date of entry into force of this legislation, and biennially in subsequent years, the central consumer defense services shall prepare an evaluation report on the application and execution thereof, which must be forwarded to the Government member responsible for the area of consumer defense.

CHAPTER VI Final Provisions

Article 16 Entry into Force This legislation shall enter into force within 150 days from the date of its publication.

Reviewed and approved in the Council of Ministers. José Maria Pereira Neves - Manuel Inocêncio Sousa

• Cristina Duarte - José Brito - Sara Duarte Lopes Promulgated on June 4, 2008. Publish. The President of the Republic, PEDRO VERONA RODRIGUES PIRES Countersigned June 5, 2008. The Prime Minister, José Maria Pereira Neves.

ANNEX Entities that, pursuant to paragraph 1 of Article 1, are subject to the obligation to possess and make available the complaint book a) Establishments for retail sale and provision of services: i. Retail trade establishments and shopping centers, as well as wholesale trade establishments with resale to the final consumer; ii. Fuel filling stations; iii. Laundries and dry cleaning and ironing establishments; iv. Hair salons, beauty institutes, or other similar establishments, regardless of the name adopted; v. Tattoo and piercing establishments; vi. Trade, maintenance, and repair establishments for bicycles, mopeds, motorcycles, and new and used motor vehicles; vii. Underground or surface parking lots; viii. Rental establishments for bicycles, motorcycles, and motor vehicles; ix. Establishments for the repair of personal and household goods; x. Establishments of civil construction companies; xi. Establishments of real estate development companies; xii. Establishments of condominium administration companies; xiii. Establishments of real estate appraisal companies; xiv. Study and tutoring centers; xv. Vehicle inspection centers; xvi. Driving schools; xvii. Driving test centers; xviii. Real estate mediation companies; xix. Funeral agencies; xx. Physical maintenance establishments, regardless of the name adopted; xxi. Pharmacies; xxii. Venues for artistic performances; xxiii. Videogram rental establishments; b) Establishments for the provision of services in the tourism sector: i. Tourist accommodations; ii. Restaurants and bars; iii. Travel and tourism agencies; iv. Tourist entertainment companies; v. Rural tourism; vi. Bingo game halls; vii. Nature tourism; viii. Tourist entertainment companies; ix. Venues with water amusement rides; x. Holiday camps; c) Other establishments of the following service providers: i. Providers of essential public services referred to in Law No. 88/VI/2006 of January 9; ii. Providers of road, maritime, air transport services, and electronic and postal communications; iii. Providers of water supply, wastewater sanitation, and urban waste management services, including services and bodies of the Public Administration operating in this sector. d) Establishments of private social security institutions: i. Private solidarity institutions; ii. Social support establishments; iii. Home support services. e) Establishments of private social security institutions regarding which cooperation agreements have been concluded with the competent bodies of the government department responsible for social security: i. Daycare centers; ii. Preschool; iii. Leisure time activity centers; iv. Homes for children and youth; v. Homes for the elderly; vi. Day centers; vii. Home support; viii. Shelter homes; ix. Homes for people with disabilities; x. Occupational activity centers for people with disabilities; xi. Community centers; xii. Social canteens; and xiii. Establishments of companies for leisure time occupation activities or other similar establishments, regardless of the name adopted. f) Establishments of service providers in the health sector: i. Private health units with inpatient care or recovery rooms; ii. Private health units with specific activity, namely laboratories; units for diagnostic, therapeutic, and prevention of ionizing radiation, ultrasound, or magnetic fields; private units