Sunday, November 3, 2013

Where is the customer? On the confusion with the Individual Non-Consumer and the Special Right to non-discrimination between consumers [ JM MARTIN ]

1. The Institute for the Defense of the Competition and the Intellectual Property (INDECOPI) just fined  Hipermercados Metro[1], with half a million Nuevos Soles, alleging discrimination to a group of students from the "Centre for Special Basic Education Jesus of Nazareth", accompanied by school staff and parents .

2. First, it must pointed out that this is a tough and morally complicated scene. The fact that Hipermercados Metro officials have restricted the entrance to a "special" group of students, rather than implemented a standard of "positive discrimination" for these case. Although, for the sake of technical issues, it's necessary to further analyze the characteristics of this particular situation.

3. Furthermore, social interaction with special students is a fact, so much that Wong (supermarket also member of Cencosud Group which owns Hipermercados Metro) usually includes within its payroll many workers with special skills. Yet, this situation of inherent and abstract human equality shouldn't give the idea that we're in a concrete human equality situation, since, depending on the particular characteristics of these special students, one must take more or less measures for a smooth participation and interaction with the rest of society.

4. It's not an easy subject to explain, which is sometimes very vetoed, denounced[2] or considered a Taboo, though it's undeniable that, depending on the degree of "specialty", these students may have hindered the process of buying and selling of products, altered the provision of products, cluttered with other customers, handled products or consumed them, required special help to prevent any accident, altered the place, among others. Of course, everything depends on the degree of the "specialty" of that particular group, which is independent from the presence of school personnel or parents, because trained technical people is needed to assess the situation and make appropriate and immediate recommendations so that their entry and social interaction takes place in the best possible way .

5. On the other hand, it's questionable that the so-called "internal policies" of companies, particularly those that directly affect the people who enter their business premises (whether consumers, non-consumers, providers, auditors, etc.) are not public nor easily accessible, for example in areas such as an information office. In situations of uncertainty about a breach in consumer's rights or a risk of arbitrariness in the absence of a document which contains the foundations of a particular internal policy, it's necessary to have this documentation and an qualified worker for this matter.

6. Notwithstanding the above, it's important to remember that not all individuals who enter a business premises are commercial customers, effective or potential. Some people just enter that commercial space to perform different functions, such as providing goods or services, control activities, execute training activities, organize recreational activities, excursions or visits, among others.

7. Therefore, it must be remembered that the defense and protection through the Consumer's Code is not an "administrative extension" of the activities assigned to the Constitutional Court, i.e. consumer law is not a constitutional law about the fundamental right of abstract equality among individuals. While it's based on the first, the latter has a specific constitutional provision of economic order, and it deals with a special administrative application of the principle of non-discrimination regarding consumers.

8. For the sake of the argument, it must be clarified that one can't discriminate between consumers, meaning that they can't be differentiated on grounds of origin, race, sex, among others, by excluding them from access to consumption or to the commercial premises (opened to public). Obviously , it should be considered that companies don't totally exclude their consumers, but have the "inadequate tendency" for segmentation, focusing on some of them, which appears to have a high probability of becoming a discriminatory practice. Though, this isn't the case.

9. In fact, this assumption is only applicable to consumers, which have been recognized as potential or actual, but they'll never be identical to any "human person" because that would indicate that the Consumer Commissions and Courts (within INDECOPI) would be performing a micro-constitutional work, a kind of diffuse oversight system, with regard to discrimination between human beings, distorting their real task: to protect consumers.

10. Thus a false analogy, and a very foolish argument at Indecopi's headquarters, might say that "he who can do more can do less", meaning that if the non-discrimination law protects the consumer and also protects the human person, then it also protects the non-consumer. Or, perhaps the Constitutional Court has now an executive branch role and it's devoted to ignore the special rules applicable to specific situations such as the consumption relationship, applying instead constitutional principles and morals or decency?

11. In this context: Does it make any sense to treat non-consumers differently (from consumers)? To the extent that the legal counselors of "Hipermercados Metro" can confirm that the alleged group of students had no intention of consumption, but only educational and social integration objective to teach people with special skills that they can also interact socially with other people. Nevertheless, a totally different thing is to to say that there was an actual or potential consumer relationship, which is totally wrong. Also, it's wrong to deny that there wasn't any arguments in favor of the order, diligence and business coordination for the occurrence of this kind of educational group activities .

12. In this vein, one must not forget that while supermarkets and hypermarkets are accessible to the general public, that does not mean one should ignore internal security standards and protocols, or that there is an implied waiver of the right to property (or possession), allegedly becoming a "public space". It's true that in public spaces, the right to free movement could be alleged, and basically anyone "could circulate as he/she pleases" without asking for permission. But of course, these are property rights and urban planning law issues, usually ignored by Indecopi's auditors, who tend to be rough against businesses and local local governments.

13. Now, assuming the existence of a consumer relationship, the Commission wrongly asked "Hipermercados metro" to prove with documents that there were reasonable causes to forbid the entrance to these students, to which Metro workers could not answer, possibly because they weren't trained in consumer law.

14. There might be many "reasonable causes", the problem is the proof, therefore it's important to have internal policies accessible for these incidents. The argument made by "Hipermercados Metro" is quite reasonable, given that it's indeed necessary some sort of coordination for the aforementioned excursion, to assign a guide, to take security measures that inevitably correspond to the special students, according to a preliminary evaluation of the specific characteristic of the group in question, among others. But, was that proven? Is it necessary to prove that a special procedure for a special group of students must be implemented? Is it really a sufficient guarantee, for the company, the presence of school staff and parents? Do excursion groups to business premises opened to the public have the same freedom of movement as any individual consumer?

15. Notwithstanding, the Commission should be less formal and more impartial in this end (curiously those are administrative procedure principles one should remember) because we're talking about objective and reasonable arguments, that certainly couldn't be supported with necessary and objective documentation at that moment, though not really required due the existence of safety standards, from local governments and other entities, thus any administrative body would have had the power to issue an Administrative Act for that matter without further documentation.

16. Finally, assuming that in front of the Court (in particular, the Chamber of Consumer Protection), "Hipermercados Metro" achieves to prove its valid argument, as being something objective and reasonable, it shouldn't suffer any the sanction. Of course, one has to also assume that the Court admits as "late evidence" the documents in question, if not the fine will be imposed without any doubt. Can a morally controversial issue discard a legal-economic analysis? Isn't that a biased pre-judgement? For how long this kind of isolated criterion will be seen without the necessary economic and legal criteria in the matter of consumer's defense and protection?

17. We must erase the inquisitive mind against business and implement a principle of soundness of business decisions, that must be proven wrong and not the opposite. Otherwise, this problem will generate more ridiculously formalistic situations like this one, in which by the lack of documentation and a willingness to "fight for constitutional justice" by Indecopi's officials, they employ unnecessary pressure on business, affecting their financial situation as well as their business image, causing a potentially irreparable damage .

Senior Partner

[2 ] I must stress the complexity of the situation, but for the purposes of determining a legal decision on the value of half a million nuevos soles, which is equivalent to the salary of 61 workers on minimum wage in one year, one needs to take this issue as objectively as possible. "Special" students have the same rights inherent as any human being, though only requiring a prior assessment for the application, or not, of a special treatment, which shouldn't be confused with over- protectionism. I know many people in such a situation and the best thing you can do, and what makes them most happy, is to treat with the same rights and obligations as any other human being. No more, no less 

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