Protection against unfair competition in Poland

In Poland, protection against unfair competition is generally regulated under two acts applicable to all sectors of the economy:

Until 2007, the Unfair Competition Act covered both B2C (business-to-consumer) and B2B (business-to-business) relations. After the adoption of the Unfair Market Practices Act, it remained in force only for B2B relations. The Unfair Competition Act is based ona general clause in Article 3(1), according to which an act of unfair competition means any act contrary to the law or to bonos mores (good practice, dobre obyczaje, Gute Sitten), which impairs or infringes the interests of another trader or of the clients. The general clause is followed by prohibitions on acts of unfair competition, e.g. false or misleading designation of an undertaking or products (Article 5–10), the disclosure of trade secrets (Article 11), hindering market access (Article 15), unfair advertising (Article 16), or the sale of products to consumers accompanied by an award of free bonuses in the form of products or services other than those sold (Article 17a).

The Unfair Competition Act provides traders and organisations protecting traders’ interests with private law remedies, and also enables traders to take legal action against an unfair B2C market practice. The Act also contains several criminal provisions (Articles 24–27).

The Unfair Market Practices Act, which implemented Directive 2005/29/EC on unfair commercial practices, deals with B2C unfairness. The Unfair Market Practices Actis based on a general clause, which in Article 4(1) prohibits unfair market practices that are contrary to bonos mores (good practice; dobre obyczaje, Gute Sitten) and which materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer. The general clause is followed by specific provisions on misleading (Articles 5 and 6) and aggressive practices (Article 8). Article 7 prohibits 23 misleading market practices that are unfair in all circumstances, and Article 9 blacklists eight aggressive market practices.

It is the consumer who has the right to make a claim against a trader acting unfairly. The right to take legal action is also granted to the Ombudsman, the Insurance Ombudsman, national or regional organisations for consumer protection, and the district (municipal) consumer ombudsman. The claimants are able to use typical action for an injunction and consumers may additionally demand the cancellation of the contract (Article 12). In the case of aggressive market practices, the criminal mode of enforcement is foreseen (Article 13).

The administrative mode of enforcement is provided to protect consumers’ collective interests on the basis of Article 24(2)(3) of the Act on Competition and Consumer Protection (Journal of Laws of 2007, No 50, item 331). The President of the Office of Competition and Consumer Protection (Prezes Urzędu Ochrony Konkurencji i Konsumentów) assesses whether a given practice constitutes an infringement of the Unfair Market Practices Act or the Unfair Competition Act. Fines of up to 10% of the revenue generated by the contravening entity in the preceding business year, the cessation of the infringement or modification of the practice, as well as the publication of the decision may be imposed upon the trader. A commitment decision or a settlement is also possible.

Apart from the Unfair Competition Act and the Unfair Market Practices Act, there are some sector-specific regulations that play a supplementary role in the assessment of unfairness, for example the Act on Consumer Credit (Journal of Laws of 2011, No 126, item 715) or the Telecommunications Law (Journal of Laws of 2004, No 171, item 1800).

The standards of fairness are also protected by means of self-regulation.The best known rules are those of the Code of Ethics in Advertising (Kodeks Etyki Reklamy), laid down by the Advertising Council (Rada Reklamy). Various provisions of the Code reflect the legislative solutions, whereas some prohibitions focus more on ethical standards. Consumers and traders may submit complaints on-line. If the Advertising Ethics Committee recognises an infringement, then traders voluntarily modify the unfair advertisement. Sanctions such as modification or cessation are rarely imposed