Consumer Protection in Poland
- Antitrust / Competition Law
- Unfair competition
- Consumer Protection
- Advertising Law
- Extensive payment delays (backlogs)
Consumer Regulation in Poland
At national level, the Polish consumer protection regulation is mainly contained in:
- Consumers Rights Act of May 30, 2014 (“CRA”) [ustawa o prawach konsumenta z dnia 30 maja 2014 r.], which implements as well the CR Directive and CGAG Directive.
- Civil Code of April 23, 1964 (“CC”) [Kodeks cywilny z dnia 23 kwietnia 1964 r.],
- Act on General Products Safety of December 12, 2003 (“GPS Act”) [Ustawa o ogólnym bezpieczeństwie produków z dnia 12 grudnia 2003 r.], which transposes GPS Directive.
Consumer Enforcement Authorities in Poland
Under Polish law, the surveillance and control of compliance with these regulations will mainly be carried out by the President of the Office of Competition and Consumer Protection and by the Polish Trade Inspection, whose tasks at a national level are performed by the President of the Office of Competition and Consumer Protection [Prezes UOKiK], and the competent authorities at regional level, especially provincial inspectorates of trade inspection and district (municipal) consumer ombudsmans.
Polish Civil Courts are in charge of dealing with consumer disputes involving the conclusion and performance of contracts to which the consumer is a party as well liability disputes regarding defective products. Please refer to Section 4.4.1 of this Chapter for further information in this regard.
Consumer definition in Polish law
In the beginning it shall be expressed that under Polish law the consumer shall be deemed to be any individual / natural person who performs acts in law with an entrepreneur, said acts not being directly connected with his / her economic or professional activity (pursuant to article 221 Polish Civil Code).
Under article 431 Polish Civil Code, an entrepreneur shall be a natural person, a legal person and an organizational unit referred to in Article 331.1 Polish Civil Code , that carries on economic or professional activity on their own behalf.
Under the fundamental rule established in article 7 Polish Consumers Rights Act, the consumer may not waive the rights conferred on him by the law. The provisions of the contracts less favorable to the consumer than the provisions of Polish Consumers Rights Act are invalid and the provisions of Polish Consumers Rights Act shall apply in their place.
Pursuant to articles 5.1 and 5.2 Polish Consumers Rights Act, fulfillment by the entrepreneur of the service not ordered by the consumer, is at the entrepreneur’s risk and does not impose any obligations on the consumer. The consumer’s failure to respond to an unsolicited service does not constitute consent to the conclusion of the contract.
Under article 7a Polish Consumers Rights Act, Unless separate provisions provide otherwise, the entrepreneur is obliged to respond to the consumer’s complaint within 30 days of its receipt. If the Client has not responded to the complaint within this time limit, it is considered to have accepted the complaint. The Client shall provide the consumer with a response to the complaint in writing or on another durable medium.
Distance or off-premises contract
At the latest when the consumer expresses his / her will to be bound by a distance contract or off-premises contract, the entrepreneur must inform the consumer in a clear and understandable manner about:
- the main features of the service, taking into account the subject of the service and the method of communication with the consumer;
- Client’s identifying data, in particular about the company, body that registered the business, as well as the number under which it was registered;
- business address, e-mail address and telephone or fax numbers, if available, at which the consumer can quickly and efficiently contact the Client;
- the address at which the consumer may submit complaints, if different from the address referred to in point (iii) above;
- the total price or remuneration for the service, including taxes, and when the nature of the subject of the service does not allow, judging reasonably, to calculate their amount in advance – the manner in which they will be calculated, as well as fees for transport, delivery, postal services and other costs and when the amount of these fees cannot be determined – about the obligation to pay them; in the event of concluding an agreement for an indefinite period or a contract including subscription, the Client is obliged to provide the total price or remuneration including all payments for the settlement period, and if the contract provides for a fixed rate – also total monthly payments;
- costs of using the means of distance communication in order to conclude the contract, if they are higher than usually used for the use of this means of communication;
- method and date of payment;
- the manner and time limit for the performance by the Client and the complaint handling procedure used by the Client;
- the manner and time limit for exercising the right to withdraw from the contract pursuant to article 27 Polish Consumers Rights Act, as well as the model withdrawal form contained in Annex 2 to the CRA;
- costs of returning goods in the event of withdrawal from the contract, which are borne by the consumer; in relation to distance contracts – the costs of returning items, if, due to their nature, these items cannot be returned by regular mail;
- the consumer’s obligation to pay reasonable costs incurred by the Client pursuant to art. 35 CRA, if the consumer withdraws from the contract after submitting a request in accordance with article 15.3 Polish Consumers Rights Act and article 21.2 Polish Consumers Rights Act;
- no right to withdraw from the contract pursuant to article 38 Polish Consumers Rights Act or circumstances in which the consumer loses the right to withdraw from the contract;
- the Client’s obligation to deliver goods without defects;
- the existence and content of guarantees and after-sales services and the manner of their implementation;
- the code of good practice and the manner of becoming acquainted with it;
- the duration of the contract or on the manner and conditions for termination of the contract – if the contract is concluded for an indefinite period or if it is to be automatically extended;
- the minimum duration of the consumer’s obligations under the contract;
- the amount and method of deposit or other financial guarantees that the consumer is obliged to fulfill at the request of the Client;
- functionality of digital content and technical measures to protect them;
- significant interoperability of digital content with computer hardware and software, about which the Client knows or should know;
- the possibility of using extrajudicial means of dealing with complaints and redress as well as the rules of access to these procedures.
The above information constitutes an integral part of both: distance contract and off-premises contract and may be changed only with the express agreement of the parties.
In the case of off-premises contracts, the Client is required to provide the consumer with the above information, recorded in writing or, if the consumer agrees, on another durable medium, legibly and in plain language.
In case of distance contracts, the Client is required to provide the above information in a manner corresponding to the type of means of distance communication used, legibly and expressed in plain language.
The Client is obliged also to provide the consumer with a contract document concluded outside the business premises (off-premises contracts) or a confirmation of its conclusion, recorded in writing or, with the consumer’s consent, on another durable medium. In the same way, the Client confirms to the consumer that he has obtained consent to deliver digital content in circumstances resulting in the loss of the right to withdraw from the contract.
According to off-premises contract, when the remuneration agreed in the contract does not exceed PLN 600, if the consumer requested the service to be provided by the Client for repair or maintenance, and the Client and the consumer immediately fulfill their obligations, the Client is obliged to:
(a) provide the consumer with the information referred to in points (ii) and (iii) above, (b) information on remuneration and how it is to be calculated, (c) present a total cost estimate recorded on paper or, with the consumer’s consent, on another durable medium and (d) provide the information referred to in (i), (ix) and (xii) above, however, if the consumer agrees, they do not have to be recorded in writing or on another durable medium.
If a distance contract concluded with the use of electronic means of communication imposes an obligation on the consumer to pay, the Client is obliged to provide the consumer in a clear and visible manner, immediately before placing the order by the consumer, the information referred to in points (i), (v), (xvi) and (xvii) above. The Client shall ensure that the consumer, when placing the order, clearly confirms that he or she knows that the order entails an obligation to pay. If a button or a similar function is used to place an order, it must be clearly marked with the words “order with payment obligation” or another equivalent unambiguous wording. If the Client does not meet the requirements specified above, the contract is not concluded.
E-commerce websites shall clearly indicate, at the latest at the beginning of the ordering process, clear and legible information about the delivery restrictions and the accepted methods of payment.
If the Client contacts the consumer by phone in order to conclude a distance contract, it is obliged to inform the consumer about this purpose at the beginning of the conversation, and also to provide the data identifying both the Client and its representative (the person calling). If the Client offers consumer to conclude a contract by telephone, it is obliged to confirm the contents of the proposed contract recorded in writing or on another durable medium. The consumer’s statement on the conclusion of the contract is effective if it is recorded in writing or on another durable medium after receiving the confirmation from the Client.
The Client is obliged to provide the consumer with confirmation of the conclusion of a distance contract on a durable medium within a reasonable time after its conclusion, at the latest at the time of delivery of the goods or before the commencement of the service provision.
The confirmation includes the information listed above, unless the Client has provided the consumer with this information on a durable medium before concluding the contract (and information on the consumer’s consent to the delivery of digital content in circumstances resulting in the loss of the right to withdraw from the contract).
If the Client has not complied with the information obligations regarding additional fees or other costs referred to in point (v) above or the cost of returning the goods referred to in point (x) above, the consumer shall not bear such fees and costs.
The burden of proof that the required information was provided to the consumer pursuant to the law rests with the Client.
Contracts other than distance or off-premises
At the latest when the consumer expresses his / her will to be bound by the “regular contract”, i.e. other than distance contract or off-premises contract, the Client is obliged to inform the consumer, unless this information is already apparent from the circumstances, in a clear and understandable manner about:
- the main features of the service, taking into account the subject of the service and the method of communication with the consumer;
- Client’s identifying data, in particular about the company, the authority that registered the business activity, and the number under which it was registered, the address at which it runs the enterprise, and the telephone number of the enterprise;
- the total price or remuneration for the service, including taxes, and when the nature of the subject of the service does not allow, judging reasonably, to calculate their amount in advance – the manner in which they will be calculated, as well as fees for delivery, postal services and any other costs, and when the amount of these fees cannot be determined – about the obligation to pay them; in the event of concluding a contract for an indefinite period or a contract including subscription, the Client is obliged to provide the total price or remuneration including all payments for the settlement period, as well as all costs that the consumer is obliged to bear;
- the manner and date of performance by the Client and the complaint handling procedure applied by the Client;
- the Client’s liability for the quality of the service provided by the law;
- content of after-sales services and guarantees;
- the duration of the contract or – when the contract is concluded for an indefinite period or is to be automatically extended – about the method and conditions for terminating the contract;
- functionality of digital content and applicable technical measures for their protection;
- relevant interoperability of digital content with computer hardware and software.
The above-mentioned obligations do not concern small contracts of everyday life performed immediately after their conclusion.
Furthermore, at the latest when the consumer expresses his / her will to be bound by the contract, the Client shall obtain the consumer’s express consent to any additional payment exceeding the agreed remuneration for the Client’s main contractual obligations.
If the Client has not obtained the consumer’s express consent, but has assumed its existence by using default options which the consumer has to reject in order to avoid the additional payment, the consumer is entitled to a refund of the additional payment already made.
Without prejudice to the right of the service provider referred to in article 2.27a of the Act of July 16, 2004 – Telecommunications Law, to charge for telephone calls, if the Client indicates a telephone number intended to contact him regarding the concluded contract, the fee for the consumer for calling this number cannot be higher than the fee for regular telephone connection, in accordance with the tariff package of the service provider used by the consumer.
Pricing and payment
In addition to the requirements set forth under Polish Consumers Rights Act, under IPP Directive and under Consumer Rights Directive, it shall be noted that pursuant to art. 543 CC displaying an item to the public at the place of sale with the indication of the price shall be deemed to be an offer of sale.
Shipping and delivery
In addition to the requirements set forth under Polish Consumers Rights Act and under Consumer Rights Directive, it shall be noted in particular that:
- if consumer is the buyer, the entrepreneur shall immediately release the item to the consumer, not later than thirty days from the day of conclusion of the contract, unless the contract provides otherwise. In case of delay on the part of the Client, the consumer may designate an additional time limit for releasing the item, and after its ineffective lapse he / she may renounce the contract;
- the mode of the release and the receipt of the item sold shall ensure its integrity and safety; in particular, the mode of packing and transportation shall correspond to the properties of the item; If a item sold is sent to the place of its destination by a carrier, the buyer shall be obliged to inspect the shipment at a time and in a manner usual for the shipments of such kind; if consumer finds that during transportation the item suffered a wastage or damage, he / she shall be obliged to perform all acts indispensable for establishing the liability of the carrier;
- The Client shall be obliged, prior to the conclusion of the contract, to give the buyer any necessary explanations on the legal and factual relations pertaining to the item. The Client is required to give all the documents in his possession which concern the item. If the content of such a document also applies to the other goods, the seller (Client) shall issue an authenticated extract from the document. In addition, if this is required for the proper use of the item in accordance with its intended purpose, the seller (Client) shall include instructions and provide explanations on how to use the item.
- If the buyer is a consumer, the seller (Client) is obliged to give him prior to the conclusion of the contract clear, understandable and non-misleading information in the Polish language, sufficient for the proper and full use of the item sold. The seller (Client) shall be obliged to give to the buyer, together with the item sold, all the elements comprising it, as well as instructions for use, maintenance, and other documents required by separate provisions drawn up in Polish language;
- If it follows neither from the contract nor from the regulations concerning the price who is to bear the costs of the release and the receipt of the item, the seller shall bear the costs of the release, in particular the costs of measuring or weighing the item, its packing, insurance for the time of the transportation and the costs of the transportation, while the buyer shall bear the costs of the receipt. If the item is to be sent to a place which is not the place of performance, the buyer shall bear the costs of insurance and transportation;
- Upon the release of the item sold, the profits and burdens connected with the item and the risk of an accidental loss of, or damage to the item shall devolve upon the buyer. However, if the item sold is to be sent by the seller to the buyer who is a consumer, risk of accidental loss or damage to the item shall pass to the buyer at the time of its release to the buyer. The item shall be deemed released once entrusted with the carrier by the seller (Client) if the seller (Client) did not have an influence on the selection of the carrier by the buyer. Provisions less favourable to the buyer shall be null and void.
Liability towards consumers for defects
The CC includes the provisions regarding conformity of product. Art. 556 CC constitutes the basic rule that the seller (Client) is liable to the buyer (consumer), if an item sold has a physical or legal defect (warranty).
A physical defect consists in non-compliance of the item sold with the contract. Pursuant to article 5561.1 CC, in particular, the item sold shall be deemed not compliant with the contract if:
- it does not have the properties which this kind of item should have as regards the purpose indicated in the contract or resulting from circumstances or its intended use;
- it does not have the properties, the Client has assured the buyer of, including presenting a sample or model;
- it is not suitable for the purpose of which the buyer has informed the Client while concluding the contract, and a Client has not raised any objections to such intended use thereof.
- it has been released to the buyer in an incomplete condition.
Under article 5561.2 CC, if the buyer is a consumer, the Client’s assurance is considered tantamount to public assurances of the manufacturer or its representative, the person who puts an item into circulation as part of his economic activity, and the person that by putting on the item sold its name, trade mark or other distinguishing marks, claims to be the manufacturer.
The item sold shall be deemed to have a physical defect also in the event of its inappropriate assembling and putting into operation, if these operations have been performed either by the Client or by a third party, for which the seller (Client) is liable, or by the buyer, who acted according to the instructions received from the buyer.
If the buyer is a consumer, and a physical defect has been detected before the end of a year from the date of release of the item sold, the defect or a reason therefor shall be presumed to have existed at the time the risk passed to the buyer.
The Client shall be liable to the buyer if the item sold is the property of a third party or if it is encumbered with the right of a third party, as well as if restrictions regarding the use of the item or having it at disposal result from a decision or pronouncement of the competent authority; in the case of selling the rights, the seller shall also be liable for the existence of such rights (legal defect).
The entrepreneur shall be liable under warranty for the physical defects which:
- existed at the time the risk passed to the buyer; or
- arose from a cause inherent in the item sold at that very moment.
The entrepreneur shall be released from the liability for warranty in the following cases:
- if the buyer knew about the defect when the contract was being concluded;
- if the buyer was aware about the defect when the item was being released – if the objects of sale are goods designated only as to their kind or goods which are to be produced in the future, however this provision shall not apply if the buyer is a consumer;
- the entrepreneur shall not be liable to the buyer who is a consumer for the fact that the item sold has no properties resulting from public assurances referred to in Article 5561.2 CC, if the Client was not aware of these assurances or, assessing reasonably, could not be aware thereof or they could not have any influence on the decision of the buyer on the conclusion of the contract of sale, or when their content had been corrected before the contract of sale was concluded.
The parties may extend, limit or exclude the liability under warranty, however if the buyer is a consumer, the limitation or exclusion of the liability under warranty is generally forbidden – it shall be admissible only in the cases specified in special provisions of law.
The exclusion or limitation of the liability under a warranty shall be ineffective if the seller insidiously concealed the defect from the buyer.
Consumer warranty in Poland
If the goods sold by the entrepreneur have defects, the consumer under warranty could perform the following rights:
- the consumer may file a declaration on a reduction of the price,
- the consumer may file a declaration on renunciation of the contract,
- the consumer may request a replacement for an item free from defects,
- the consumer may request to remove the defect.
Please, note the following limitations:
- the consumer is entitled to exercise these rights unless the Client (seller) immediately and with no excessive inconveniences exchanges the defective item for an item free from defects or immediately removes the defects,
- the reduced price should remain in the same ratio to the price resulting from the contract, in which the value of the defective item remains to the value of an item without defects,
- the buyer may not renounce the contract, if defect is insubstantial.
Please also, note the following limitations:
- the Client is obliged to replace the defective item for an item free from defects or remove the defect within a reasonable time and without excessive inconveniences to the buyer,
- the Client may refuse to satisfy the buyer’s demand if it proves impossible to bring the defective item into conformity with the contract in a manner chosen by the buyer or, in comparison with the second possible way to bring it into compliance with the contract, it would require excessive costs,
- if the buyer is an entrepreneur, the Client may refuse to exchange the item for one free from defects or to remove defects also when the costs of discharging of that duty exceed the price of the item sold,
- these rights are granted only to the consumers, so they do not concern all kind of buyers,
- these rights may be performed, unless it is impossible to bring goods to conformity with the contract in a manner chosen by the buyer or would involve excessive costs in comparison with the manner proposed by the Client.
Please, find below the most important rules of entrepreneur’s liability for physical defects of goods related to buyer’s rights under warranty:
- if a physical defect is detected before the lapse of two years from the date of releasing the item to the buyer;
- a claim for the removal of the defect or replacement of the item sold for one free from defects shall be barred by limitation upon the lapse of one year, counting from the date of detecting the defect. If the buyer is a consumer, limitation period may not cease to run before the lapse of the time limit referred to in point (i) above;
- within the time limits specified in point (ii) above, the buyer may file a declaration on renunciation of the contract or reduction of the price due to defects of the item sold. However, if the buyer has requested replacement of the item for one free from defects or removal of the defect, the time limit to submit the declaration on renunciation of the contract or reduction of the price begins to run upon ineffective lapse of the time limit for exchange of the item or removal of the defect;
- if one of the rights under warranty is sought before a court or conciliatory court, the time limit for the buyer to exercise other rights enjoyed by the buyer as a result of the warranty shall be suspended until legally binding completion of the proceedings; this rule shall apply accordingly to mediation proceedings, it being understood that the time limit for the exercise of other rights under warranty enjoyed by the buyer shall begin to run from the date of refusal by the court to approve a settlement concluded before the mediator or ineffective completion of mediations;
- the lapse of the time limit for detection of a defect does not preclude the exercise of the rights under warranty if the seller (Client) insidiously concealed the defect.
Furthermore, if the defective item has been assembled, the buyer may demand that the Client disassemble and re-assemble it after having replaced it for an item free from defects or that the defects be removed. In the event of the Client failing to fulfill that duty, the buyer is authorized to make these acts at the expense and risk of the Client.
The consumer that exercises the rights under warranty is obliged to deliver the defective item to the place indicated in the contract of sale at the expense of the Client, and when such a place has not been specified in the contract – to the place where the item was released to the buyer. If, because of the kind of the item or the manner of its assembly, it would be excessively difficult for the buyer to deliver the item, the buyer shall be obliged to render the item available for the Client at the place at which the item is located.
Generally, the costs of exchange or repair shall be borne by the entrepreneur. This in particular includes the costs of disassembly and delivery of the item, labour, materials, as well as re-assembly and putting the item into operation.
The entrepreneur shall accept from the buyer the defective item if it is to be replaced for an item free from defects or renounce the contract.
If the buyer who is a consumer has requested that the item be replaced or the defect be removed or filed a declaration on reduction of the price specifying the amount by which the price is to be reduced, and a Client has not responded to this request within fourteen days, the request shall be deemed to be considered as justified by the Client.
If it was stipulated in the contract of sale that the goods sold would be delivered in parts, and the Client in spite of the demand of the buyer would not deliver, instead of defective goods, the same amount of goods free from defects, the buyer may renounce the contract also with respect to the goods which were to be delivered later.
If among the goods sold only some of them are defective and can be separated from the goods free from defects without detriment to either party, the buyer’s right to renounce the contract shall be limited to the defective goods.
According to the legal defects, please, note that if, due to a legal defect of the item sold, the buyer filed a declaration on renunciation of the contract or reduction of the price, he / she may demand redress of the damage he / she suffered as a result of concluding a contract not being aware of an existing defect, even if the damage is a result of circumstances for which the Client is not liable.
Consumer Guarantee in Poland
Regardless to the warranty, the consumer may be granted by the entrepreneur with the rights resulting from guarantee.
The basic difference between warranty and guarantee under Polish law is that the warranty is that the warranty is granted to consumers under statutory provisions, on the terms specified in the provisions of Polish Civil Code, while the guarantee is only due if it was issued by the entrepreneur, and the entrepreneuris not obliged to do so.
Under the fundamental principle, the buyer may exercise his / her rights under warranty for physical defects of the item irrespective of the rights under the guarantee. The exercise of rights under the guarantee shall not affect the liability of the Client under warranty. However, in the event of the buyer’s exercise of rights under the guarantee, the time limit for the exercise of the rights under warranty shall be suspended on the date of the notification of the Client about a defect. The time limit shall continue to run from the date of the refusal by the Client to fulfill the duties under guarantee or ineffective lapse of the period for their execution.
If the entrepreneur decides to provide consumers with guarantee, it shall then act pursuant to the competent provisions of law. Generally, the consumer shall be provided by making a guarantee statement which sets out the duties of the entrepreneur and the rights of the buyer in the event that the item sold does not have the properties referred to in this statement. The guarantee statement may be made in an advertisement.
If not stipulated otherwise in the guarantee, the liability under the guarantee shall only cover defects which arose from a cause inherent in the item sold.
The entrepreneur’s duties under guarantee may in particular consist in:
- reimbursement of the price paid,
- replacing the item,
- repair of the item,
- ensuring other services.
If no other time limit is stipulated, the time limit of the guarantee shall be two years counting from the day on which the item was released to the buyer.
Please, note that if, in discharging his obligations, the entrepreneur delivered to the consumer, instead of a defective item, an item free from defects or carried out essential repairs to the item sold, the time of the guarantee shall continue to run from the time of the delivery of the item free from defects or the return of the item repaired. If the Client has exchanged a part of the item sold, the above rule shall apply accordingly to the exchanged part. In other cases, the time limit of the guarantee shall be extended by the period during which the consumer could not use the item sold because of the defect.
Consumer Right of Withdrawal in Poland
Regardless to the rights granted to the consumer under warranty or guarantee, the consumer who concluded with the Client a distance or off-premises contract has in addition the withdrawal right pursuant to the provisions of Polish Consumer Rights Act. Below are the most important rules for this right.
A consumer who has concluded a distance or off-premises contract may, within 14 days, withdraw from it without giving a reason and without incurring costs (except for the costs specified in articles 33, 34.2 and 35 of Polish Consumer Protection Act).
If the consumer has not been informed by the entrepreneur about the right to withdraw from the contract, this right expires 12 months from the date of expiry of the period mentioned above.
The consumer may withdraw from the contract by submitting a declaration of withdrawal to the entrepreneur. To meet the deadline, it is enough to send a statement before its expiry.
In the event of withdrawal from a distance contract or off-premises contract, the contract shall be deemed not to have been concluded. If the consumer submitted a declaration of withdrawal from the contract before the Client accepted his offer, the offer ceases to be binding.
After the withdrawal right is exercised, the entrepreneur shall meet below requirements:
- the entrepreneur is obliged to immediately, not later than within 14 days from the date of receipt of the consumer’s statement on withdrawal from the contract, return to the consumer all payments made by him / her, including the costs of delivering the goods,
- the entrepreneur shall refund the payment using the same method of payment as used by the consumer, unless the consumer has expressly agreed to a different method of return which does not involve any costs for consumer,
- according to off-premises contract, it the item was delivered to the consumer to the place where he resided at the time of conclusion of the contract, the entrepreneur is obliged to collect the item at his / her own expense, if due to the nature of the item it cannot be returned by regular mail.
If the entrepreneur has not offered to pick up the goods from the consumer himself, he / she may withhold the reimbursement of payments received from the consumer until it receives the goods back or until the consumer provides proof of sending it back, whichever occurs first.
If the consumer has chosen a delivery method other than the cheapest standard delivery method offered by the Client, the Client is not obliged to refund the additional costs incurred by the consumer.
After the withdrawal right is exercised, the consumer shall meet below requirements:
- the consumer is obliged to return the item to the Client or hand it over to the person authorized by the Client to receive it immediately, but not later than 14 days from the date on which he / she withdrew from the contract, unless the Client offered to pick up the item itself; to meet the deadline, it is enough to return the items before its expiry,
- the consumer is liable for reducing the value of the item as a result of using it in a way that goes beyond what is necessary to establish the nature, characteristics and functioning of the item, unless the Client has not informed the consumer about the right to withdraw from the contract.
The consumer bears only the direct costs of returning the goods, unless the Client has agreed to bear them or has not informed the consumer about the necessity to bear these costs.
Upon the consumer’s withdrawal from a distance or off-premises contract, the related additional contracts concluded by the consumer shall expire, provided that the service is provided by the Client or a third party on the basis of an agreement with the Client. If an additional contract has been concluded with a third party, the Client informs that third party of the consumer’s withdrawal from the contract.
Please be informed that since January 1st 2021, the provisions concerning the consumer’s withdrawal right contained in Polish Consumer Protection Act apply to a natural person concluding a contract directly related to his / her business activity, when the content of this contract shows that it is unrelated to professional nature for this person, resulting in particular from the subject of his business activity, provided on the basis of the provisions on the Central Register and Information on Economic Activity.
Entrepreneur’s claim regarding defective nature of the item sold
If the item did not have the properties which it should have had in accordance with its intended purpose or in accordance with assurances made in public or has been issued in an incomplete condition, the entrepreneur who has borne the costs as a result of the consumer exercising the rights under a warranty for physical defects may request redress for the damage suffered from previous sellers, as a result of the actions or omissions of which the item became defective.
The previous seller shall also be liable, when, being aware of a defect of an item, did not inform the buyer (Client) thereof or drew up a manual for assembly and putting an item into operation enclosed with the item, if the defect was caused by the assembly and putting the item into operation by the consumer in accordance with this manual.
The above-mentioned compensation includes reimbursement of expenses which are necessary in order to exercise the consumer’s rights, in particular associated with replacing or removing defects of the item sold, its disassembly, transport and re-assembly, and, in addition, the amount by which the item’s price has been reduced, and the benefits lost.
A claim of the Client shall be barred by limitation of six months. The limitation period shall begin to run on the date of the Client incurring costs as a result of consumer exercising his / her rights under warranty, but not later than on the date on which the Client should perform its duties as regards the consumer.
Liability provided for in this section may neither be excluded nor limited.
Unfair (abusive) Terms in Consumer Contacts in Poland
Beyond Unfair Terms in Consumer Contracts Directive, the Polish Consumer Law extends legal regulation unfair contract terms.
In Poland, contract terms will be deemed unfair if they:
- have not been individually agreed with consumer, and
- consumer’s rights and duties have been stipulated in conflict with good customs and in flagrant violation of consumer’s interest.
The burden of evidence to prove that the provision has been agreed individually shall be borne by the party who claims so.
The conformity of a given provision with good customs shall be examined in reference to the state of affairs on the date of conclusion of a contract and taking into account its contents, circumstances of its conclusion and other contracts being in connection with the contract which includes the provision being subject to such examination.
In the case of doubt, the unfair contractual provisions shall be those, in particular, which:
- exclude or limit the liability to the consumer for a damage caused to a person;
- exclude or substantially limit the liability to the consumer for non-performance or improper performance of an obligation;
- exclude or substantially limit the setting off of a consumer’s receivable debt against a receivable debt of another party;
- include the contents that the consumer was not able to learn before the conclusion of the contract;
- allow a party contracting with the consumer to transfer rights and duties resulting from the contract without consent of the consumer;
- make the conclusion of a contract contingent upon consumer’s promise to enter into further similar contracts in the future;
- make the conclusion, contents or performance of a contract contingent upon the conclusion of another contract without direct connection with the contract including the provision being examined;
- make the performance of a contract contingent upon circumstances that depend only on the will of the party contracting with the consumer;
- entitle the party contracting with the consumer to make a binding interpretation of the contract;
- entitle the party contracting with the consumer to make a unilateral amendment to the contract without an important reason determined in the contract;
- entitle only the party contracting with the consumer to state the consistency of a performance with the contract;
- exclude a duty to return to the consumer a payment for the performance that has not been made in full or in part in the event where the consumer withdraws from the contract or its performance;
- stipulate the loss of a right to claim the return of a performance made by the consumer earlier than a performance made by the contracting party where the parties terminate, dissolve or withdraw from the contract;
- deprive only the consumer of the right to dissolve the contract, renounce or terminate it by a notice;
- stipulate the right for the party contracting with the consumer to terminate the contract concluded for an indefinite period without important reasons and without a reasonable termination notice period;
- impose the duty to pay a fixed sum only on the consumer in the event of the withdrawal from the conclusion or performance of the contract;
- impose a duty on the consumer who has not performed an obligation or has renounced the contract to pay a glaringly excessive contractual penalty or compensation for the loss of contract;
- envisage the prolongation of a contract made for a definite period of time, unless the consumer, for whom an excessively short time limit has been fixed, makes a statement to the contrary;
- stipulate only for the party contracting with the consumer a unilateral right to modify substantial features of the performance without any important reasons;
- entitle the party contracting with the consumer to fix or increase a price or a remuneration after the conclusion of the contract without granting to the consumer a right to renounce the contract;
- make the reliability of the party contracting with the consumer contingent upon the fulfilment of obligations by persons who substitute the contracting party while concluding the contract or who assist such party to perform its obligation or the provisions which make such reliability contingent upon the completion of excessively arduous formalities;
- impose a duty to fulfil an obligation by the consumer despite a non-performance or improper performance of the obligation by the contracting party;
- exclude the jurisdiction of the Polish courts, or have the case decided by a Polish or a foreign conciliatory court or another authority, or force a decision in the case to be made by the court which has no local competence.
CC establishes additionally several rules regarding specially a standard / model form of contract.
If the Client set up a model form of a contract, in particular general conditions of contracts / general terms and conditions, standard forms of contracts and rules shall be binding upon another party if having been delivered to such party before concluding the contract.
The model form delivered within the duration of a contractual relationship of a continuous nature shall be binding upon the other party if the party concerned has not terminated the contract by notice at the earliest possible date of dissolution.
The model form of contract must render its contents unambiguously and comprehensibly. Ambiguous provisions must be interpreted for the benefit of a consumer. The principle expressed in the preceding sentence shall not apply in proceedings in cases regarding pronouncement of provisions of a model form of contract inadmissible.
In the case of any discrepancies between the contents of a contract and the model form thereof, the parties shall be bound by the contract.
The entrepreneur may not require that the consumer pay a fee for using a particular method for payment in excess of the costs incurred by the entrepreneur in relation to said payment method.
Having above in mind, please note that the Office of Competition and Consumer Protection keeps a register of prohibited / abusive clauses, including contractual provisions considered illegal by a final judgment of the Court of Competition and Consumer Protection (SOKiK) before April 17, 2016. The register is available on the following website: https://www.rejestr.uokik.gov.pl/
Currently, i.e. after April 17, 2016, due to the change in the model of abstract control of the provisions of standard contracts from court to administrative-judicial, implemented by the President of the Office of Competition and Consumer Protection, the unlawful provisions of standard contracts result from the decision of the President of the Office of Competition and Consumer Protection and are published in decision’s databese on the following website: https://decyzje.uokik.gov.pl/bp/dec_prez.nsf
Product labelling in Poland
In terms of labelling, please note that Energy Labelling Regulation is directly applicable in the Polish legal system, without the need to implement it (as generally opposed to directives), in accordance with the principles of EU law.
The Energy Labelling Regulation is applicable to energy-related products, and it provides regulation for their labelling requirements as well as for the provision of information regarding the energy efficiency and the consumption of energy.
The above-mentioned aspects of product labelling are the subject of section 3.3.2 of this Chapter.
The provisions of Polish law regulate particularly the issues not covered by Energy Labelling Regulation and are complementary to it. It concerns primarily the control of the energy labeling of energy-related products, the control of the implementation of the energy efficiency labeling program for office equipment and financial penalties.
Liability towards consumers
Following the Product Liability Directive, the CC includes specific regulations regarding hazardous product liability in Poland.
Provisions on liability for damage caused by a hazardous product shall not exclude the liability for a damage on general terms, a damage resulting from the nonperformance or improper performance of an obligation, and from the liability under a warranty for defects and guarantee of quality.
Under the basic rule established in CC, one who produces within the scope of economic activity (a producer) any hazardous product shall be liable for any damage caused by such product to anybody.
There are the following limitations or exclusions of producer’s liability:
- the producer is liable for damage caused to another person’s property only where the item damaged or impaired can be regarded as an item commonly designed for personal use and when the sufferer has used it mainly for such purpose;
- the producer shall not be liable for damage caused by a hazardous product if it has not introduced it to trade or where it was introduced to trade beyond the scope of its economic activity;
- the producer shall not bear any liability if the hazardous properties of a product were revealed after it had been introduced to trade, unless they have resulted from a cause inherent in the product beforehand;
- nor shall the producer bear any liability if the hazardous properties of the product could not be foreseen on the basis of the state of the art in science and technology at the time of introducing the product to trade or if the properties resulted from the observance of provisions of law;
It shall be presumed that a hazardous product that caused damage was produced and introduced to trade within the scope of the economic activity pursued by the producer.
A manufacturer of material, raw material or a component part of a product shall bear liability equal to that of a producer, unless the only cause of the damage was a defective construction of the product or instructions given by the producer. One who presents himself to be a producer by means of placing his business name, trade mark or another distinctive designation shall bear a liability equal to that of a producer. One who puts a product of foreign origin into circulation for domestic trade within the scope of his economic activity (an importer) shall incur the same liability.
The producer and persons mentioned above shall be liable jointly and severally.
If the producer or the person mentioned above are unknown, liability shall be borne by the person who sold the hazardous product within the scope of their economic activity, unless they provide the sufferer with a name and address of the producer or the person mentioned above, and in the case of imported goods – the person and address of an importer within one month from notification of the damage.
If the transferor of the product cannot indicate the producer or the persons determined above, it shall be released from liability after indicating the person from whom it purchased the product.
An indemnity for damage inflicted on one’s property shall not cover any impairment of product or any benefits which the sufferer might have derived from the use thereof.
The damages shall not be due if a damage inflicted on one’s property does not exceed an amount equal to EUR 500.
A claim for redressing damage caused by a hazardous product shall be barred by limitation after a lapse of three yearsfrom the day when the sufferer first knew or, with due diligence, was able to have known the fact of the damage and the person liable to repair it. In every case, however, the claim shall be barred by limitation after the lapse of ten years of the day when the product was introduced to trade.
The liability for a damage caused by a hazardous product may not be excluded or limited.
Liability towards Public Authorities
The competent administrative authorities may adopt against the participants in the commercialization and supply chain of products and services in Poland control activities or other proper measures in order to ensure the consumer protection, especially:
- inspections within the marketing chain;
- request all information necessary to the interested parties;
- gather samples of products in order to carry out security analysis;
- require the adoption of measures necessary to guarantee the compliance with security measures;
- temporarily forbid the supply in the event; and
- forbid placing on the market of any unsafe product and establish measures necessary to guarantee compliance with such prohibition.
The competent public authorities may impose financial penalties to producer or distributor for infringements specified in GPS Act. Under GPS Act, the penalty imposed cannot be greater than PLN 100,000.
In addition, the competent public authority shall be able to impose in administrative decision sanctions such as:
- elimination of risks posed by the product,
- immediate withdrawal of the product from the market,
- warning consumers, specifying the date and form of the warning,
- recall of the product from consumers and its destruction.