There is no doubt that 2015 was a significant year for consumer law in Poland. New legal instruments were introduced and a strategic document laying down the direction for consumer policy for the coming years was adopted.
The Consumer Rights Act
The Consumer Rights Act introduced new rules for concluding contracts with consumers away from business premises or at a distance, significantly expanded businesses’ informational obligations with respect to consumers, modified the rules for withdrawing from contracts (the period in which the consumer may exercise this right, as well as the rules and costs connected with return of the goods after withdrawal from the contract). The Consumer Rights Act also amended the Civil Code provisions concerning sales contracts, in particular the warranty for defects and guarantees. Other changes involve the system of alternative and online dispute resolution (ADR/ODR). Moreover, the Office has adopted the strategic document entitled “Policy for Protection of Competition and Consumers” addressing the program for promoting competition as well as the government’s consumer policy. Under this policy, the Office is pursuing tasks seeking to eliminate practices infringing the collective interests of consumers, review of form contracts, and ensuring the safety of products and the quality of services.
During the first year the Consumer Rights Act was in force, various issues and questions concerning its application arose. The greatest doubts concerned issues of defining a “durable medium,” the procedure for concluding contracts “by telephone,” and “immediate availability” in online shops. The Consumer Rights Act also required introduction of major changes in complaint procedures in sales processes. Another important solution introduced by the Consumer Rights Act into the Civil Code is the right of redress, i.e. recourse claims within the chain of sellers not connected by contract.
The impact on businesses
2015 was a period for businesses to implement the Consumer Rights Act. The Office’s position concerning the Consumer Rights Act for the upcoming months is clear – in the beginning of 2016, the Office plans to conduct comprehensive inspections. At the same time, it continually monitors signals from consumers concerning infringement of their rights. Thus in 2016 the regulator intends to inspect how businesses have adapted to the new regulations. In this context, certain pointers are provided also by the mentioned above “Policy for Protection of Competition and Consumers, which states that the selection of the markets where the Office will take action will be determined by a diagnosis of the situation on the market for consumer goods and services, based on monitoring of the market and signals from consumers, as well as other sources (sociological studies, media monitoring, current market analysis by consumer organizations, consumer advocates, and the Trade Inspectorate). It is stressed that the problem of selling products to a consumer that are inappropriate to his or her needs will be examined closely on the financial services market as well as in the case of off-premises contracts and distance contracts. Areas that will definitely attract stepped-up inspections are e-commerce and financial services.
There is no doubt that violating the obligations provided for in the Consumer Rights Act can constitute a violation of the Competition and Consumer Protection Act, i.e. infringement of the collective interests of consumers, which can be punished by a fine of up to 10% of an undertaking’s total annual turnover. Nonetheless, the “consumer” amendment of the Competition and Consumer Protection Act entering into force on 17 April 2016 introduces a number of other solutions. In the context of the announced inspections, particular concern is expressed about the new institution of the “secret shopper,” which is designed to obtain evidence to be used in proceedings involving alleged practices infringing the collective interests of consumers. It means that from April 2016 the Office will be authorized to delegate a staff member to act as a “secret shopper.” The person will check how goods are offered and sold to consumers and whether the consumers are fully informed of their rights.
In summary, it appears that 2016 will belong to the consumer division of the Office of Competition and Consumer Protection.