Law No. 88/V/98 of December 31 on Consumer Protection and Defense

1 Law No. 88/V/98 of December 31 By mandate of the people, the National Assembly decrees, in accordance with paragraph b) of Article 186 of the Constitution, as follows:

CHAPTER I General Provisions

Article 1 (Subject Matter) The present Law approves the legal regime for consumer protection and defense, defining the functions of the State and local authorities, consumers' rights, and the intervention of consumer associations.

Article 2 (Definition) A consumer is considered to be any person to whom goods are supplied, services are provided, or rights are transferred, intended for non-professional use, by a person who exercises an economic activity with a professional character aimed at obtaining benefits.

Article 3 (Scope) This Law applies to goods, services, and rights supplied by any private or public entities, namely commercial companies, associations, business groupings, cooperatives, bodies of the Public Administration or local authorities, public legal entities, public companies, companies with public capital or predominantly held by the State or local authorities, and companies concessionaires of public services.

Article 4 (General functions of State and local authority protection)

1. It is incumbent upon the State and local authorities to protect consumers, namely through support for the establishment and functioning of consumer associations, as well as for the implementation of this Law.
2. The State's general duty in consumer protection presupposes adequate legislative and regulatory intervention in all relevant fields.

Article 5 (Training and information function)

1. It is incumbent upon the State to promote an educational policy for consumers, by integrating, through implementation in programs and school activities, as well as in lifelong education actions, matters related to consumption and consumers' rights, using, notably, appropriate technological means in an information society.
2. It is incumbent upon the State and local authorities to develop actions and adopt measures aimed at consumer training and education, namely through: a) Implementation in the educational system, particularly in basic and secondary education, of consumption education activity programs; b) Support for initiatives promoted in this field by consumer associations; c) Promotion of lifelong education and awareness actions regarding consumption in general; d) Promotion of a national policy for training trainers and specialized technicians in the consumption field.
3. Educational programs broadcast on public radio and television services must integrate spaces dedicated to consumer education and training.
4. Telematic means, notably through national and global information networks, must also be used in consumer training, encouraging the public, private, and cooperative sectors to utilize such means.

Article 6 (General information function)

1. It is incumbent upon the State to develop actions and adopt measures aimed at general consumer information, namely through: a) Support for training and information actions promoted by consumer associations; b) Creation of accessible, nationwide databases and archives in the field of consumption law and consumers' rights, intended to disseminate general and specific information with free access.
2. The public radio and television service must reserve spaces, as defined by law, for the promotion of consumers' interests and rights.
3. Information to consumers is provided in Portuguese and Cape Verdean languages.
4. Advertising must be lawful, unequivocally identified, and respect truth and consumers' rights.
5. Concrete and objective information contained in advertising messages regarding a specific good, service, or right is considered integrated into the content of contracts subsequently concluded after its broadcast, with contrary contractual clauses deemed unwritten.
6. It is incumbent upon local authorities to develop actions and adopt measures aimed at general consumer information, namely through: a) Integration of the consumer information and training function into competent municipal services; b) Adoption of monitoring, supervision, and control mechanisms for consumer defense measures; c) Creation of municipal consumer information services; d) Establishment of municipal consumption councils, with representation, notably, from associations representing economic interests and consumer interests.

CHAPTER II Consumer Rights and Supplier Duties

Article 7 (Consumer rights) The consumer has the right: a) To the quality of goods and services; b) To health and physical safety protection; c) To training and education for consumption; d) To information for consumption; e) To protection of economic rights; f) To prevention and repair of patrimonial or non-patrimonial damages resulting from the infringement of homogeneous individual, collective, or diffuse interests or rights; g) To representative participation in the legal or administrative definition of their rights and interests; h) To judicial resolution of their conflicts as a party, through the most expedient process provided by general law, including precautionary measures; i) To exemption from court fees in proceedings where they are a party; j) To prior information in cases of suspension or interruption of supply of goods or services provided by companies operating under monopoly and exclusive regimes, or public service concessionaires.

Article 8 (Right to quality of goods and services)

1. Goods and services intended for consumption must be fit to fulfill their purposes and needs, producing effects attributed to them according to normally established standards or, in the absence thereof, adequately meeting consumers' legitimate expectations.
2. Without prejudice to the establishment of more favorable terms by agreement of the parties or by usage, the supply of non-consumable movable goods is obliged to guarantee their proper functioning for a period of no less than one year.
3. The consumer has the right to a minimum five-year warranty for immovable property.
4. The running of the warranty period is suspended during the time in which the consumer is deprived of use of the goods due to repair operations resulting from original effects.

Article 9 (Right to health and physical safety protection)

1. The supply of goods or provision of services involving risks incompatible with their use under reasonably foreseeable normal conditions, including duration, is prohibited if not acceptable according to a high level of protection for human health and physical safety.
2. Public Administration bodies and local authorities that, in exercising their functions, become aware of the existence of prohibited goods or services under the preceding paragraph must notify such fact to the competent market inspection entities.
3. Competent Public Administration bodies must order the seizure and withdrawal from the market, as well as prohibit the provision of services that pose a danger to consumers' health or physical safety when used under normal or reasonably foreseeable conditions.

Article 10 (Right to training and education) Consumers have the right to receive consumption training and education in a manner that enables them to know the quality and characteristics of supplied goods, provided services, and transferred rights, and to be capable of making choices during the negotiation or acquisition process.

Article 11 (Right to information and duty to inform)

1. The consumer has the right to receive general and specific information about all goods, services, and rights offered in the market by suppliers for consumption or acquisition.
2. Suppliers of goods or providers of services must, both during negotiations and upon contract conclusion, clearly, objectively, and adequately inform the consumer, namely regarding characteristics, composition, price of the good or service, as well as contract duration, warranties, delivery periods, and post-transaction assistance.
3. The duty to inform also applies to producers, manufacturers, importers, distributors, packagers, and warehouse operators, so that each link in the production-consumption cycle is qualified to fulfill its duty to inform the immediate next link up to the consumer, the final recipient of information.
4. Risks to consumers' health and safety resulting from the normal use of dangerous goods or services must be communicated clearly, completely, and adequately by the supplier or service provider to potential consumers.
5. When there is a lack of information, insufficient, illegible, or ambiguous information that compromises the adequate use of the good or service, the consumer enjoys the right to withdraw from the contract regarding its acquisition or provision, within seven working days counting from the date of receipt of the good or the date of contract conclusion for service provision.
6. Suppliers of goods or providers of services and rights that violate the duty to inform are liable for damages caused to consumers, with other participants in the production and distribution chain being jointly liable if they have violated the duty to inform.
7. The duty to inform must not be denied or conditioned by the invocation of unregulated trade secrets, nor may it prejudice the legal regime of general contractual clauses or more favorable consumer legislation.

Article 12 (Duty to communicate by monopoly and exclusive companies)

1. Services and companies operating under monopoly or exclusive regimes that supply goods or provide essential services to consumers are obliged to provide public information whenever suspension or interruption operations of good supply or service provision occur.
2. Acts of suspension or interruption of goods supply and service provision based on unpaid invoices must be communicated to the consumer fifteen days in advance of the scheduled execution date.

Article 13 (Right to protection of economic interests)

1. Consumers have the right to the protection of their economic interests, imposing material equality among participants, loyalty, and good faith in preliminary stages, contract formation, and during the contract term.
2. With a view to preventing abuses resulting from pre-formulated contracts, suppliers of goods and service providers are obliged: a) To draft clear and precise general contractual clauses, including those inserted in individual contracts, in easily legible characters; b) To not include clauses in contracts that cause significant imbalance to the detriment of the consumer.
3. Non-compliance with the preceding paragraph is subject to the regime of general contractual clauses.
4. Consumers are not obliged to pay for goods or services they have not previously and expressly ordered or requested, nor do they bear the cost of return or compensation, nor responsibility for the risk of loss or deterioration of the item.
5. Consumers have the right to after-sales assistance, covering the supply of parts and accessories, for the average normal duration of supplied products.
6. Suppliers or service providers are prohibited from making the supply of a good or provision of a service dependent on the acquisition or provision of another good or service.

Article 14 (Right to damage repair)

1. A consumer supplied with a defective item, unless previously informed and clarified before contract conclusion, may demand, regardless of the supplier's fault, repair of the item, price reduction, or contract termination.
2. Consumers must report defects within 30 days for movable goods, or one year for immovable property, after knowledge of the defect within legal warranty periods provided by this Law.
3. The rights conferred on consumers under paragraph 1 expire upon the expiration of any of the periods referred to in the preceding paragraph without the consumer having made a report, or six months after these periods, excluding time spent on repairs.
4. Without prejudice to the preceding paragraph, consumers have the right to compensation for patrimonial and non-patrimonial damages resulting from the supply of defective goods or provision of services.
5. Producers are liable, regardless of fault, for damages caused by product defects placed on the market, in accordance with the law.

Article 15 (Right to representative participation) The right to participation consists, notably, in the prior hearing and consultation, within a reasonable time, of consumer associations regarding measures affecting rights or legally protected interests of consumers.

Article 16 (Nullity)

1. Without prejudice to the regime of general contractual clauses, any agreement or contractual provision that excludes or restricts rights attributed by this Law is null.
2. The nullity referred to in paragraph 1 may only be invoked by the consumer or their representatives. The consumer may opt for contract maintenance when some of its clauses are null under paragraph 1.

CHAPTER III Institutions for Promotion and Protection of Consumer Rights

Article 17 (Consumer associations)

1. Consumer associations are legal entities, non-profit organizations with the main objective of protecting consumers' rights and interests in general or those of their member consumers.
2. Consumer associations may be national, regional, or local in scope, depending on the area of their action, and must have at least 200, 100, or 50 members, respectively. Consumer associations may also be of general interest or specific interest: a) Associations of general interest are those whose statutory purpose is the protection of consumers' rights in general; b) Associations of specific interest are other consumer associations focused on certain goods and services.

Article 18 (Rights of Consumer Associations) Consumer associations enjoy the following rights: a) Social partner status in matters concerning consumer policy, notably reflected by the appointment of representatives to consultative bodies dealing with the subject; b) Airtime rights on radio and television, under the same terms as associations with social partner status; c) Right to represent consumers in public consultation and hearing processes during decision-making likely to affect their rights and interests; d) Right to request competent administrative or judicial authorities for the seizure and withdrawal of goods from the market, or prohibition of services harmful to consumers' rights and interests; e) Right to correct and respond to advertising messages regarding goods and services placed on the market, as well as to request competent authorities to withdraw misleading or abusive advertising; f) Right to consult processes and other elements in central or local public administration departments containing data on consumption goods and services characteristics, and to disseminate necessary information for protecting consumer interests; g) Right to be informed about the elements and conditions of price formation for goods and services, whenever requested; h) Right to participate in price regulation processes for the supply of goods and provision of essential services, notably in water, energy, gas, transport, and telecommunications sectors, and to request clarifications on applied tariffs and service quality to enable them to pronounce themselves; i) Right to request official laboratories to conduct analyses on the composition or conservation status and other characteristics of goods intended for public consumption, making corresponding results public, with the service provided urgently at a tariff not exceeding cost price; j) Right to presumption of good faith for information they provide; k) Right to popular action, in accordance with the law; l) Right to lodge complaints and reports, as well as right to constitute themselves as assistants in criminal proceedings and follow administrative offense processes when requested, submitting memorials, technical opinions, examination suggestions, or other evidence until the process is ready for final decision; m) Right to exemption from court fees, preparatory costs, and stamp duties, in accordance with the law; n) Right to receive State support through central and local administration to pursue their objectives, notably in exercising their activity in consumer training and representation; o) Right to fiscal benefits identical to those granted or granted to institutions of public utility. 2. The rights provided in paragraphs a) and b) of the preceding paragraph are exclusively conferred upon national consumer associations of general interest. 3. The right provided in paragraph h) of paragraph 1 is conferred upon specific interest associations when these interests are directly related to the good or service subject to price regulation, and exclusively for non-local nature services.

Article 19 (Conduct agreements)

1. Consumer associations may negotiate with professionals or their representative organizations good conduct agreements, intended to govern relations between them.
2. The aforementioned agreements must not contradict mandatory legal provisions, notably competition law, nor contain provisions less favorable to consumers than those legally provided.
3. Good conduct agreements concluded with general interest consumer associations bind professionals or represented parties towards all consumers, whether or not they are members of the intervening associations.
4. The aforementioned agreements must be published, notably by posting in commercial establishments, without prejudice to the use of other more detailed informational means.

Article 20 (Public Prosecution Service) The Public Prosecution Service is also responsible for defending consumers within the scope of this Law and their respective competencies, intervening in administrative and civil actions aimed at protecting homogeneous individual interests, as well as collective or diffuse consumer interests.

Article 21 (National Consumption Council)

1. The Government will ensure the creation of the National Consumption Council, which shall be a consultative and pedagogical/preventive action body, exercising its actions in all matters related to consumer interests, coordinating and executing measures aimed at protection, information, and support for consumers and their organizations.
2. The Council's functions include, notably: a) Pronouncing on all consumption matters submitted to its consideration by the Government, consumer associations, or other represented entities; b) Issuing prior opinions on relevant legislative initiatives in consumption matters; c) Studying and proposing to the Government the definition of general sectoral strategic policy lines in the consumption field; d) Approving recommendations for public or private entities, or consumers, on topics, actions, or situations of interest for protecting consumer rights; e) Requesting and obtaining from goods suppliers and service providers, upon justified request, necessary information and elements to safeguard consumers' rights and interests, as well as carrying out necessary actions for this purpose; f) Requesting competent authorities for precautionary measures to cease, suspend, or prohibit the supply of goods and provision of services that, regardless of proof of actual loss or damage, by their object, form, or purpose, entail or may entail risks to consumers' health, safety, and economic interests.
3. The Government is responsible, through a specific instrument, for regulating the operation, composition, and method of appointing members of the National Consumption Council, ensuring in all cases that consumer representation is no less than 50% of the total Council members.

CHAPTER IV Final Provisions

Article 22 (Liberal professions) The liability regime for services provided by liberal professionals shall be regulated by specific laws.

Article 23 (Regulation period) The Government will regulate this Law within 120 days after its publication.

Article 24 (Entry into force) This Law enters into force within 120 days after its publication.

Approved on December 16, 1998. The President of the National Assembly, António do Espírito Santo Fonseca.

Promulgated on December 28, 1998. Publish.

The President of the Republic, ANTÓNIO MANUEL MASCARENHAS GOMES MONTEIRO.

Signed on December 29, 1998. The President of the National Assembly, António do Espírito Santo Fonseca.