Ashraf Ali, Partner in AMERELLER’s Cairo Office, with Ibrahim Abo Alsoud, Senior Litigation Associate, successfully represented a major global automotive brand in a litigation concerning the definition of “Supplier” in the Consumer Protection Law No. 181 of 2018 that had been unduly expanded to include anyone trading commodities. Our defense team argued that this expansion contravened the constitutional definition of fair trial and principles of Islamic law. The court acquitted the client and the State Council Court went on to invalidate twelve similar decisions issued by the Consumer Protection Authority against our client.
Our team refuted the accusations made by the Prosecution of Economic Affairs and Money Laundering – formerly known as Financial and Commercial Affairs – to the Chairman of the Company’s Board of Directors regarding some complaints submitted to the Consumer Protection Authority regarding the supply of vehicles which do not conform to the declared specifications of the company.
The defense team has submitted a new legal argument that has never been raised in this type of cases, its’ legal basis is the principles of the Islamic Law, the provisions of the constitution, and rules of justice which is grounded on presumed innocence of the accused. This presumption is based on two basic guarantees, the first one is the guarantee of a fair trial and the second one is the guarantee of proof of conviction. Whereas the Consumer Protection Law No. 181 of 2018 has unduly expanded the concept of a “Supplier” who is responsible before the consumer and the Public Prosecutor’s Office, whereby whoever trades the commodity whether by producing, importing, exporting, selling, leasing, offering, trading, distributing, or marketing the commodity is a Responsible Supplier.
Forensically, this concept needs modification, especially when determining criminal liability, it is not appropriate for all these entities to be criminally responsible for it and, although some judicial directions are considering the expansion of the supplier definition as mentioned above. However, our defense team opinionated that this expansion contravened the constitutional rules in force in criminal liability. Whereas the defense team provided a new interpretation to the concept of the criminally responsible supplier in the light of those constitutional rules and reinterpreted the first article of the Consumer Protection law referred to.
This interpretation was derived by the defense from the provisions of the Constitution, the rules of fair trial and the principles of Islamic law, which were elaborated by the Court of Cassation in many of its rulings on the individuality of the penalty and the need to determine criminal liability before the defendant and that the liability is not presumed by all suppliers as prima facie of article 1 of the Consumer Protection Law, but is based on confronting the perpetrator of the offence while aware of it, without expanding in this part. Because this criminal liability -In the light of the Egyptian Court of Cassation’s jurisprudence- is based on a fundamental principle that does not contain an exception and that is the principle of the penalty individuality, as the offences are punishable only for those who conducted it. The penalties are carried out only in the same manner as decided by the Court of Cassation.
Since this is a prima facie interpretation of the supplier concept as commonly used, that he who trades the breached commodity is a criminally liable supplier before the Public Prosecutor’s Office and the consumer. This common interpretation is misinterpreted and contrary to the rules of justice and the provisions of the Constitution, which stipulate the individuality of the punishment and that offences are punishable only for those who conducted it, thus, criminal punishment should focus on those who contracted directly with the consumer even if the commodity was traded amongst more than one supplier, and saying otherwise creates generalization and contravenes the Supreme Constitutional Court’s rulings on the protection of presumption of innocence in order to safeguard personal freedom from any aggression against it. These principles were guaranteed by the Egyptian Constitution in articles 41 and 67. The origin of the innocence can only be disproved by certain evidence.
This argument, submitted by our defense team, was taken by one of the appeals circuits of the Economic Court and abolished all conviction judgments rendered against the chairman of the company, some of which he was sentenced with a fine up to EGP 1 million, obliging him to reimburse the value of the vehicle to the consumer, and again acquitted him of the charge, dismissed the civil action before him and established its judgment on that, the company represented by the accused was not directly the seller of the complainant and was not a party of the selling contract with the consumer. Hence, it is not the supplier, the law aforementioned is describing.
Since there is no direct or indirect relationship between the company represented by the accused and the cars subject of the complaint as it’s not direct sellers of the complainant’s cars or are responsible for the warranty and after-sales services, it is also not the owner of the trademark and is not a subsidiary or agent of any other company operating in the same field.
Having said that, the criminal liability becomes shared responsibility, which is not legally permissible, in the light of the forgoing as the criminal liability cannot be solidarity, but rather individual liability, and therefore the company to which the Supplier description applies, is the company that has contracted directly with the consumer and is, therefore liable before the law for the event establishing criminal liability.
Hence why, the Supreme Administrative Court overruled the appeal filed by the Consumer Protection Agency and upheld the first instance verdict.
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