A few days ago, on 24 June 2014, the Act on Consumer Rights was finally published. The Act transposes the Consumer Rights Directive and re-transposes the Consumer Sales Directive to Polish law. The Act was adopted on 30 May 2014 and it will come into force six month after its publication, in December 2014.
The vast majority of rules of the Consumer Rights Directive have been transposed outside of the Civil Code (although, during the work on the transposition, there were voices suggesting its inclusion into the Civil Code). Only a few rules of a general contractual character are going to be included into the Civil Code.
The Consumer Rights Directive is a full harmonisation directive and so obviously had to be transposed in full.Poland has, however, made use of several options offered by the directive:
- The transposed rules will not apply to off-premises contracts for which the payment exceeds PLN 50 (EUR 12.5).
- Information requirements in contracts other than distance and off-premises will not apply to day-to-day contracts, performed immediately after its conclusion.
- Different informational regime for off-premises contracts where the consumer has explicitly requested the services of the trader for the purpose of carrying out repairs or maintenance for which the trader and the consumer immediately perform their contractual obligations, and where the payment to be made by the consumer does not exceed the PLN equivalent of EUR 200.
- Confirmation of contracts concluded via telephone on paper on or another durable medium.
Re-transposition of the Consumer Sales Directive
When it comes to the re-transposition of the Consumer Sales Directive, it has been planned from the moment of its initial transposition into the Polish legal system in 2002 Originally, the Consumer Sales Directive was transposed in a separate Act on Special Conditions of Consumer Sales. This transposition strictly followed the text of the directive, without building on its minimal character. As a result, the Polish system of liability for defects in sold goods disintegrated: split in two. The rules in the Civil Code contain a comprehensive regulation of performance and the effects of non-performance of a sales contract, based on the notion of defect. These rules apply to all sales contracts, with the exception of the contracts regulated in the Act on the Specific Conditions (i.e. the sale of a movable tangible to a consumer).
The critique of the present sales regulation
The Act on Specific Conditions excludes the application of the Civil Code to contracts covered by the Act, and since the Act does not regulate issues relating to the performance of consumer sales contracts comprehensively, but simply follows the rules of the Consumer Sales Directive, it creates lacunas. For example, the Polish Supreme Court has had to decide whether the notion of non-conformity extends also to legal defects in goods. In addition, the well-developed rules on guarantee contained in the Civil Code, and drawn up for consumer relations, no longer apply to consumer sales, as a result of the transposition. On the top of that, the new rules on consumer sales were generally perceived as lowering the level of consumer protection, since they introduce a hierarchy of remedies that is not present in the Civil Code. According to the Civil Code, the buyer can terminate the contract or ask for a price reduction and at the same time – depending on the type of good – demand a repair or replacement. The seller can block the choice of the buyer.
Structure of the new sales law
All these reasons laid the foundation for the decision to reintegrate the system of liability for sales contracts in the Civil Code. The reform repeals the Act on Special Conditions, and brings back the regulation of consumer sales into the Civil Code. The new rules introduce the requirements of Consumer Sales Directive into the Civil Code and reintroduce the application of the Civil Code to consumer sales (including the rules on guarantees). Some of the rules of the Civil Code are slightly modified. Additionally, the reform introduces new rules on redress. These issues will be discussed further in subsequent entries.
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