The Supreme Court has ruled, in a resolution dated 9 September 2015, that an injured party that seeks damages from an insurer as part of the guarantee liability under compulsory civil liability insurance, does not have the status of a consumer. This means that the President of UOKiK’s powers to combat practices that infringe collective consumer interests do not include powers to protect such injured parties.
The resolution is significant for the insurance market for two reasons. Firstly, determining that an injured party is not a consumer can have an impact on the outcome of proceedings concerning penalties already imposed by the President of UOKiK on insurers in connection with compulsory civil liability insurance. Secondly, the Supreme Court opted for a narrow, literal interpretation of the provisions of the Civil Code regarding the definition of a consumer, thus limiting the President of UOKiK’s competencies in respect of practices that infringe collective consumer interests related to compulsory motor insurance. Some comments made following the announcement of the ruling suggested that changes will need to be made to the law in this regard.
In the resolution, the Supreme Court indicated that the concept of a consumer in the regulations on competition and consumer protection should be understood in accordance with the definition of a consumer in the Civil Code, i.e. that a consumer is a natural person who carries out with an entrepreneur a legal action not directly related to his/her business or professional activity.
In the case to which the Supreme Court ruling related, the insurer appealed against the President of UOKiK’s decision declaring that collective consumer interests had been infringed. The infringement consisted in the limitation of the insurer’s liability towards the injured party under compulsory civil liability insurance with respect to the right to hire a replacement vehicle (i.e. the insurer did not always have to provide a replacement vehicle for the injured party). The insurer argued that its action towards the injured party cannot be regarded as a practice that infringes collective consumer interests, because injured parties are not consumers – as they do not carry out any legal action with the insurance company.
In response to a question put by the Court of Appeal in this case, the Supreme Court issued a resolution in which it upheld the position of the insurer, recognising that the injured party in this case does not have the status of a consumer. It stated that a key element of the definition of a consumer is that he/she has carried out a legal action with an entrepreneur. The relationship between an injured party and an insurer does not derive from a legal action, but a provision of law. The court also stated that an injured party does not consume insurance services – a compulsory civil liability insurance contract is concluded in the interest of the perpetrator of damage, not the injured party. It cannot be considered that such a contract is concluded in favour of the injured party.
In relation with this, the Supreme Court held that the President of UOKiK’s powers in terms of protecting consumers from practices that infringe their collective interests in the market for compulsory civil liability insurance cover only policyholders and not injured parties. This is because the protection of consumer interests relates to contractual relationships as well as pre-contractual relationships that can lead to the conclusion of a contract. Therefore, the protection covers, for example, practices in the field of advertising or information obligations before the conclusion of a contract. However, relationships based in law are not covered, as in the case of an insurer’s guarantee liability towards an injured third party.
At the same time the court disagreed with the standpoint of the President of UOKiK, who called for extending the definition of a consumer to cover natural persons who have not carried out legal actions in light of a pro-European interpretation of the provisions of Polish law. The Supreme Court did not agree, and held that in the case of an injured party, there are no provisions in the Directives which would justify a departure from a literal interpretation of the definition of a consumer contained in the Civil Code.
Resolution of the Supreme Court dated 9 September 2015, case file no. III SZP 2/15