You are not sure if a trader’s practices are lawful? Consult the Act on combating unfair commercial practices prepared by the Office of Competition and Consumer Protection (UOKiK). It was adopted today by the lower chamber of the Polish Parliament

Unfair commercial practices are a significant barrier to the development of the internal market. That is why, on 11 May 2005 an EU directive was adopted with the aim to unify each Member State national regulations concerning business practices violating consumers’ economic interests and indirectly also the interests of law abiding businesses.

The Polish Act transposes the provisions of the EU directive to the Polish law, which, however, does not constitute a major change in relation to the regulations which have been in operation to date. Nevertheless, the provisions concerning unfair B2C commercial practices have been up to date spread across different acts and comprised provisions of administrative, civil and criminal law. Thanks to the transposition they will be comprehensively consolidated in one Act.

The new regulations include a detailed list of unfair practices, which should enhance consumers’ economic security and make it easier for them to file claims. The so-called “black list” catalogues specific business practices deemed to be contrary to the requirements of professional diligence (good practices) and which significantly distort consumers’ commercial decisions. In practice, adopting such a list eliminates the necessity to prove that the practice is unfair as all of the listed practices are deemed as such ex large.

The Act also introduces the term aggressive marketing practices, which is defined as exerting unacceptable pressure on consumers and in this way limiting their freedom of choice. This category includes such practices as: creating the impression that the consumer cannot leave the business’s premises without having signed the contract, making persistent and unwanted solicitations or informing the customer that if he does not buy the product or service his job or livelihood will be in jeopardy.

The new Act also defines the term average consumer to mean a person who is reasonably well-informed, reasonably observant and circumspect. When applying the regulations, the Office and the courts will take into account social, cultural and language factors and even such characteristics as the particular consumer’s age or physical or mental infirmity. They will also be obliged to take into account the case-law of the European Court of Justice.

The aim of these regulations is to enhance the level of consumer protection by, among other things, making it easier for individuals to file their claims. Individual consumers will now be able, inter alia, to demand that the court orders the trader to cease the unfair practice, remove its effects, redress the damage or to pay a certain sum to charity. Such requests may also be made by the Polish Commissioner for Civil Rights Protection, the Insurance Ombudsman, a consumer organisation or a consumer ombudsman.

According to the new provisions, it is the trader who has to prove in court proceedings that the practice he used had not been misleading. This provision is particularly important as it is very difficult for the consumer to prove that the product or service does not possess the qualities promised by the professional.

The Act also lays more emphasis on self-regulation. According to the draft document, if the trader makes a reference to the provisions of a code of conduct and at the same time fails to adhere to it, such behaviour may be deemed an unfair commercial practice.

Another novelty that the Act introduces is the definition of the term product, which includes not only every product or service, but also, for example, a product guarantee or a license to use digital resources.

Additional information:
Małgorzata Cieloch, Spokesperson for UOKiK
Pl. Powstańców Warszawy 1, 00-950 Warszawa
Tel. 22 827 28 92, 55 60 106, 55 60 314
faks 22 826 11 86

E-mail [SCODE]bWNpZWxvY2hAdW9raWsuZ292LnBs[ECODE]