When service is not rendered

Denis Muscat writes:

I am a member of a gym/spa club and when enrolling we were told (and it was also stated on the company's brochure) that members could make use of the swimming pool, the sauna and the steam bath. The problem is that since I enrolled last September the sauna has never functioned properly because the temperature is never sufficiently high.

I raised several complaints with the manager and all he could do, instead of admitting the fault, was to take me for a ride. My complaints were even made in writing. A new manager has since joined and he informed me that they would be doing something to improve the system by this summer.

But I have paid for a service and this has not been made available. Considering that I joined specifically for the pool and sauna this is making a material difference to me.

I would like to know what my rights are because I got no reply to my letter to the Consumers' Association. Do I have a right to claim a refund and cancel my membership once the advertised service is not being provided? Does the company have a right to continue advertising this faulty product?

Our body of consumer protection laws has been greatly enhanced by EU law. Most recently we incorporated a new EU law dealing with Unfair Commercial Practices (Directive 2005/29), which I had the pleasure of voting into law as a member of the European Parliament.

This law applies both to the sale of goods (products) as well as to services and, therefore, services mentioned by the reader are covered. In essence, it broadens the spectrum of consumer rights considerably and also covers commercial practices that were previously not covered by law.

The practice the reader refers to may indeed be said to be covered by this law that prohibits misleading actions including the giving of false information in relation to the main characteristics of a product or service or misleading clients in relation to the availability of the service and its fitness for purpose.

This law applies to Malta as it has been incorporated into Maltese law (the Consumer Affairs Act), which also provides for a fine to be imposed on any person or business guilty of an offence against the law.

So if the client was promised sauna services - including in the brochure promoting the membership subscription - and these services are not being made available or are not being made available in a manner that is fit for the real purpose, it stands to reason that the reader's rights may well have been breached.

For, clearly, a sauna can hardly serve its purpose if the temperature is not set at the appropriate level.

So in this case, the reader should report the matter to the Consumer Affairs Division (based in Santa Venera), which is responsible for implementing this law and which is the competent authority empowered to grant a remedy in Malta. It is up to this authority to deal with the specific issues raised by the reader, including the issue of advertising of this service.

If, on the other hand, the reader feels that this authority is not delivering a remedy in relation to his consumer rights - which include his EU rights - then the matter can be taken further, if need be, even at a European level, because national authorities are required to implement EU law adequately.

Finally, the reader also makes reference to the Consumers' Association.

My impression is that, in Malta, despite the outstanding efforts of a number of individuals who have devoted time and energy to defend consumer rights, we still lack a sufficiently strong consumer protection culture and a sufficiently proactive non-governmental consumer association. Clearly, for such an association to be credible it needs to be distinct from the government.

The national competent authority too, that is, the Consumer Affairs Division, should be further strengthen to deliver a prompt and effective remedy to aggrieved consumers, which is not to say that enforcing consumer rights should be turned into a crusade against businesses. It is only those businesses flouting consumer rights that should be worried.

The electoral programme of the new government includes some very interesting proposals in this regard (see points 282 to 286 of the PN electoral programme), notably, the strengthening of the national consumer affairs authority whose mandate will now be widened to include price monitoring.

I hope these commitments are implemented sooner rather than later.

Readers who would like to ask questions to be answered in this column can send an e-mail, identifying themselves, to contact@simonbusuttil.eu or through www.simonbusuttil.eu.