Polish Consumer Law

Mateusz Grochowski
Editor-in-chief
Ph.D., assistant professor in the Institute of Legal Studies of the Polish Academy of Sciences and in the Institute of Justice, assistant in the Civil Chamber of the Supreme Court of the Republic of Poland, holder of scholarships of the Foundation for Polish Science and of the National Science Centre, previously visiting scholar at the Università degli Studi di Trento.

A look backwards

Consumer regulations in Poland date back at least to the 1970s. The typical – and most vulnerable – consumer transactions (mainly sale and services contracts) became subject to the first protective provisions. At this early stage, the scope and methods of regulation were limited – yet closely connected with the approach of the contemporary legal systems. The main vehicle of this protection were sub-statutory acts, imposing “general conditions” for certain types of contracts, mandatory for businesses entering contracts with non-professionals.

The immense acceleration and shift in this respect was brought at the turn of the century, due to preparations before accession to the EU. Introducing the EU legislation, in 2000 – 2003, Poland also implemented all consumer directives in force that time, which entailed a considerable augmentation of both the scope and the intensity of regulation. Within a short time the new rules were adapted by the judiciary and doctrine, and had gained institutional support. The latter embraced the creation of a network of consumer’s advocates [rzecznik konsumenta] and the development of the supervisory power of the Office of Competition and Consumer Protection.

The next perceptible stage of evolution was the modernisation of consumer contracts regulations, reflecting developments in consumer regulations at the European level. Within this process, since 2011 new acts on timesharing and consumer credit have already been introduced (implementing the respective EU directives). The further legislation concerning doorstep and distance contracts, as well as consumer sales, is now at the last stage of drafting.

The array of regulations

Polish consumer law is based on common convictions as to the need to protect non-professional actors in the market. Under Article 221 CC, the notion of consumer [konsument] covers individuals who enter a juridical act for purposes not connected with their business or professional activity. Apart from excluding legal entities, the scope of the definition has also been narrowed through an explicit limitation to one side of the juridical act only (which in some instances has proved troublesome in practice). At the same time, according to Article 431 CC, the concept of a business entity [przedsiębiorca] refers to parties carrying out business or professional activity in their own name.

The current private consumer law in Poland is composed of two elements: the provisions contained in the Civil Code, and the extra-code legal acts[. The particular cases of this division are usually decided separately during drafting works, without an overall concept behind. In the current legislative discourse, this distinction has come under question (including due to the legislation, currently being drafted, the regulation of all types of sale is to be unified in the provisions of the Code).

The first group of provisions incorporated into the Code covers:

  • the definition of consumer and business (Articles 221 and 431 respectively);
  • the standard terms contracts and abusive clauses (Articles 384 – 3853 – in the part mutual for B2B and B2C contracts);
  • the product liability (Article 4491 – Article 44910);
  • a few varied provisions regulating certain aspects of B2B dealings (e.g. Article 74 § 2 allowing a consumer to prove a transaction that, due to the lack of the prescribed form, cannot be otherwise proved by witnesses or statements from the parties.

Beyond the Code (though strictly linked with its provisions), other legislation includes:

  • the Act on the Consumer Rights of 13 May 2014 (Dz.U. 2014, item 287). It implements the EU consumer rights directive 2011/83/EU, repealing the previous Act on protection of Certain Rights of Consumers and on Liability for Damage Caused by Dangerous Products of 2 March 2000 (Dz. U. 2000, vol. 22, item 271), which implemented EU directives on doorstep selling and distance contracts (including distance finance services contracts); at the same time it provided also a reform of the Polish sales law, integrating B2C and B2B sales within the provisions of the Civil Code and repealing the Act on Special Rules on Consumer Sales and Amending the Civil Code of 27 July 2002 (Dz. U. 2002, vol. 141, item 1176), implementing the 99/44/EC directive on consumer sales; (see also http://polishprivatelaw.pl/act-on-consumer-rights-enacted/#more-6410).
  • the Act on Timeshares of 16 September 2011 (Dz. U. 2011, vol. 230, item 1370), implementing the EU timeshare directive 2008/122/EC;
  • the Act on Consumer Credit of 1 May 2011 (Dz. U. 2011, vol. 126, item 715), implementing the 2008/48/EC directive on consumer credit;
  • the Act on Tourist Services of 29 August 1997 (Dz. U. 1997, vol. 133, item 884), implementing the 90/314/EC directive on tourist contracts;
  • the Act on Counteracting Unfair Market Practices of 23 August 2007 (Dz. U. 2007, vol. 171, item 1206), implementing the 2005/29/EC directive on unfair commercial practices.

This system of regulations is supplemented and supported by several other groups of regulations as separate provisions contained in other acts – both of public and private law. Among these, it is worth pointing out certain criminal and administrative provisions (in the latter case, of special importance are prerogatives of the Office of Competition and Consumer Protection in the field of collective consumer interests).

The overall picture

In its current state, Polish consumer law does not vary significantly in comparison to other EU member states. The same regulative patterns in consumer legislation at the European level, and the same assumptions behind them, are incorporated in Polish consumer law in the common concept of EU protection in B2C dealings.

Amongst the peculiarities of consumer law in Poland, above all it is worth mentioning the characteristic balance between public and private ways of enforcing consumer rights. Consumer contracts do not appear frequently in judicial practice. Furthermore, the majority of cases are decided in lower instances, where rulings, for obvious reasons, cannot create many effective and widely-accessible interpretation patterns. Hence, the role of creating such points of reference rests mainly upon the doctrine. This can be explained mainly by the relatively low value of consumer disputes (which excludes many of them from being pleaded before courts of appeals and the Supreme Court) and the relatively low activity of non-professionals in claiming their individual rights against business partners. At the same time, more effective and widely spread are the aforementioned administrative tools, which concentrate mainly upon the collective interests of non-professionals. Therefore, the protection of interests guaranteed by private law takes place mainly indirectly, through enforcing more general and abstract rights of consumers as a whole.

In addition, as the definition of consumer in the Civil Code pertains exclusively to individuals, the consumer legislation does not cover collective entities (legal entities and other entities entitled to act in the private law sphere). In the judiciary and literature there are, however, some traces of a protective approach towards such market actors (even, if they may be qualified as a “business” under the aforementioned definition), which are considered as weaker and more exposed to dangers within a particular transaction. The protection in such cases is based upon general instruments of private law, leaving a judge a leeway for the discretional balancing of the parties’ interests.

Lastly, the Polish system provides a peculiar (and quite frequently adopted in practice) way of extracting abusive clauses from B2C contracts – the so-called “abstract control” of standard contract terms (Articles 47935 – 47936 of the Code of Civil Procedure). The examination in question is performed by the Court of Competition and Consumer Protection (a department of the District Court in Warsaw) in isolation from any contract really concluded (distinguishing this way from the “concrete” control that may be performed by every court deciding a contractual dispute). Declared as abusive, the clause is enlisted by the President of the Office of Competition and Consumer Protection in the publicly available register, and cannot be used further in contracts concluded by the business party against whom the proceedings have been carried out.