The sample contracts used by all brokerage houses controlled by UOKiK included provisions violating the interests of the consumers. The Office conducts constant monitoring of the entrepreneurs operating in various fields on application of illegal clauses

The most recent control of UOKiK focused on the brokerage houses. The Office analysed the samples used in contracts with consumers in 19 randomly selected entities, which is more than half of the total number of houses operating on the market. Each sample examined contained irregularities.

Some of the brokerage houses (Bank Handlowy, Bank Przemysłowo-Handlowy PBK, Beskidzki Dom Maklerski, CA IB Securities, Internetowy Dom Maklerski, KBC Securities, Millenium, Penetrator) reserve the right to refuse to sign the contract with the consumer, without giving any justification. The decision is arbitrary in this situation. This is contradictory to the fact, that the offer to conclude a contract as presented by the brokerage houses concerns general public and unlimited number of consumers. Such provisions should be considered as contradictory to good practice principles.

Some of the brokerage houses (BGŻ, CA IB Securities, Internetowy Dom Maklerski, Penetrator) include the clause that limits their responsibility for any damage inflicted on their customers. This clause violates the provisions of the Civil Code that requires compensating in full such damages. Moreover some of the contracts are constructed (AmerBrokers, Bank Handlowy, Bank Przemysłowo-Handlowy PBK, BGŻ, BISE, DB Securities, KBC Securities, Millenium, PKO BP) in a way that makes it possible to exclude responsibility of the brokerage house for the damages resulting from the investment decisions based on the broker's recommendation, even though the broker was guilty of negligence.

It is common for brokerage houses (AmerBrokers, Bank Ochrony Środowiska, Bank Przemysłowo-Handlowy PBK, Beskidzki Dom Maklerski, BGŻ, BISE, BRE Bank, BZ WBK, ING Securities, Internetowy Dom Maklerski, KBC Securities, Millenium, Pekao, Penetrator, PKO BP, DB Securities) to exclude their responsibility in a situation, when the client order was not processed due to the improper functioning of the internet or phone services. Some of the brokerage houses (BISE, Pekao) declare that they cannot be responsible for any damage resulting from the clients’ loosing their personal protective measures (password, card, etc), even though the client in question informed the brokerage house about this fact.

According to the provisions of applicable laws, a new sample contract issued while the old one is still in force, is binding if it was delivered to the customer and the customer did not terminate it promptly. The practice of placing such information on the notice boards, as applied by some of the brokerage houses (AmerBrokers, Bank Handlowy, Beskidzki Dom Maklerski, BGŻ, DB Securities, ING Securities, Internetowy Dom Maklerski, Pekao, Penetrator, PKO BP) does not fulfil this requirement. Moreover, some of the contracts (Bank Przemysłowo-Handlowy PBK, BGŻ, BISE, BRE Bank, BZ WBK, Internetowy Dom Maklerski) make a reservation that any letter is considered delivered to the customer after seven working days from the date it is sent. Such clause puts some of the weaker participants in the market at risk, as it make it possible for the brokerage house to undertake such actions as in a situation of the letter being delivered, without ensuring that the customer does in fact receive it.

It is UOKiK opinion that the procedures for handling complaints, as described in the sample contracts used by AmerBrokers and Pekao, clearly favours the brokerage house. According to these procedures, the customer can lodge a complaint about negligence of execution or undue execution of the order within a week of the order date. The brokerage house has the right to lodge a complaint even within two months after the date the transaction is executed. Even greater disproportion can be observed in the case of the appeal procedure. Bearing in mind the fact, that the brokerage house is a professional participant in the market, the implementation of solutions as described above is of great concern to the Office.

It is UOKiK opinion that the penalty fee, charged by Beskidzki Dom Maklerski and Penetrator of a value of 0.5% for each day of payment delay in case of orders with deferred payment also violates the interests of the customer. After a year the value of the due fee will reach 180% of the initial sum. Therefore almost double the initial sum due. The fee, therefore, is in much excess of what can be reasonably expected. The economic interests of the customers are also infringed by the clause applied by BISE, according to which the brokerage house does not repay the fees charged. In this way the client, who pays a fee for one year in advance does not get any reimbursement if he terminates the contract earlier.

It is very common - and illegal in the light of some court rulings - to for brokerage houses make a reservation that any possible disagreements will be settled by the court competent for the seat of the brokerage house. Such clauses are applied by AmerBrokers, Bank Przemysłowo-Handlowy PBK, Beskidzki Dom Maklerski, BGŻ, BISE, BRE Bank, BZ WBK, DB Securities, Erste Securities Polska, Internetowy Dom Maklerski, Pekao, Penetrator and PKO BP.

UOKiK has initiated actions in order to eliminate the irregularities that have been discovered. The initial summonses were sent to all the brokerage houses. If the entrepreneurs do not amend the clauses in question, the President of UOKiK will initiate lawsuits in the Court to deem such clauses as not allowed.
The Office conducts constant monitoring of the sample contracts used by entrepreneurs operating in various fields. As the results of the earlier controls - of tourism operators, car dealers, language schools, private education - indicate, very often the contracts include illegal clauses. In accordance with the Civil Code the provisions that are not agreed individually with the customer, are not binding if such provisions are contradictory to good practice principles or violate the customer’s interests.

The provisions that are deemed illegal are registered in the Register of Abusive Clauses available at UOKiK web site. From this moment on, the use of such clauses in contracts concluded with customers shall be prohibited. At present, there are more than 700 clauses registered as abusive.

Additional information:
Elżbieta Anders, UOKiK Press Spokesperson
Department of International Relations and Communication
Office of Competition and Consumer Protection
Pl. Powstańców Warszawy 1, 00-950 Warszawa
Phone 22 827 28 92, 55 60 106, 55 60 314
E-mail: [SCODE]ZWFuZGVyc0B1b2tpay5nb3YucGw=[ECODE]