In 2017 we will feel the effects of the “consumer” amendment of the Act on Competition and Consumer Protection which entered into force on 17 April 2016, introducing among other things a new model for review of abusive clauses in form contracts and a revised definition of practices infringing the collective interests of consumers.
Pursuant to the amendment, the ban on use by undertakings of prohibited clauses in contracts with consumers has been separated out, while the consequence of a proceeding seeking to find form contract provisions to be unfair is issuance of an administrative decision by the president of the Office of Competition and Consumer Protection (UOKiK). Thus the model for oversight has changed from judicial (by the Court of Competition and Consumer Protection) to administrative. Decisions by the president of UOKiK are published on the UOKiK website in its decision database. The existing register of unfair clauses will continue in force until 2026, and orders issued under proceedings pending under the old regulations will be entered in the existing register. The amendment empowered the president of UOKiK to impose fines for use of abusive form contracts of up to 10% of the turnover generated by the undertaking in the preceding year. The amendment also changed the definition of practices infringing the collective interests of consumers. Violation of fair practice has become a separate ground, opening up new possibilities for formulating accusations on this basis and also sparking a debate on how “fair practice” should be interpreted in consumer dealings.
The Act on Out-of-Court Resolution of Consumer Disputes entered into force on 10 January 2017. The act imposes a number of informational obligations on businesses deciding to participate in the ADR system for consumer disputes. These obligations apply to online as well as regular shops.
What will be the most pressing issues in the immediate future?
Strategic changes in consumer law have been proposed at the EU level and primarily concern the digital single market. The main goal is to eliminate further barriers to the growth of cross-border e-commerce, and consequently provide consumers and businesses better access to goods and services on the internet throughout the European Union. Differences in contract law between member states continue to be perceived as a barrier to cross-border e-commerce. Thus the latest initiatives call for harmonization of contract regulations concerning delivery of digital content and sale of goods via internet. Work is underway on an e-commerce package including a Directive on certain aspects concerning contracts for the supply of digital content and a Directive on certain aspects concerning contracts for the online and other distance sales of goods.
Work is also underway on combating geographical blocking, aimed at passage of an EU Regulation on addressing geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market. Changes are also proposed to establish more effective mechanisms of cooperation between national authorities responsible for enforcement of consumer law.
One of the more interesting trends in the consumer area is the future regulation of internet platforms at the EU level. They are not currently governed by any uniform, comprehensive set of legal regulations. Internet platforms take various forms, such as purchasing platforms and sharing platforms, pursuing various business models. The platforms typically feature a trilateral contractual setup of platform operator/supplier/customer. The issues primarily involve the role of the platform operator—whether the operator is a contract party or an intermediary—and consequently the operator’s duties, including liability for performance of the contract, as well as informational obligations.