Unfair Competition in Poland

General prohibition of unfair commercial practices in EU

Entrepreneurs shall not perform any act or omission, procedure, statement or commercial information, in particular advertising and marketing, directly related to the promotion or purchase of the product by the consumer which:

1. is contrary to good practice and
2. significantly distorts or may distort the market behaviour of an average consumer before concluding a product contract, during its conclusion or after its conclusion.

An unfair market practice is, in particular, a misleading market (commercial) practice and an aggressive market (commercial) practice, as well as the application of an illegal code of good practices.

Misleading commercial practices: actions and omissions

Misleading actions (i.e. an action which in any way causes or may cause the average consumer to take a contractual decision that he would not otherwise have taken). Entrepreneurs shall not perform commercial practices that:

1. involve dissemination of false information;
2. involve dissemination of true information in a manner that may be misleading;
3. involve activities related to placing a product on the market that are misleading in terms of products or their packaging, trademarks, trade names or other indications individualising the entrepreneur or its products, in particular comparative advertising within the meaning of 16.3 Unfair Competition Act of Poland;
4. involve failure to comply with the code of good practice, to which entrepreneur voluntarily joined (if entrepreneur informs that it is bound by such code).

Misleading actions in general may refer to: the existence, nature and availability of the product; its features such as origin, composition, accessories, price, obligations of the entrepreneur connected with the product; consumer’s rights, pricing policy and special price advantages; information on sales’ channel, entrepreneur’s economic standing etc.

Misleading omissions – entrepreneurs shall not omit essential information that the average consumer needs to make a contract decision (also those required by separate provisions). Such omittance may occur when the entrepreneur:

1. conceals or fails to provide in a clear, unambiguous or timely manner relevant information about the product;
2. fails to manifest the commercial purpose of the practice, if it does not clearly result from the circumstances and if it causes or may cause the average consumer to take a decision concerning the contract that he would not have taken otherwise.

For this purpose, essential information means, among others, any information regarding the main characteristics of the product, the identity and address of the responsible company, the price inclusive of taxes, the arrangements for payment, delivery, etc. or the right of withdrawal or cancellation.

In the event of an offer to purchase a product information which shall not be omitted concern:

1. the essential features of the product in so far as it is appropriate for the given means of communication with consumers and the product;
2. name, surname (company’s name) and address of the entrepreneur (registered office) and the entrepreneur on whose behalf it operates;
3. the total price or if the price cannot yet be calculated, the manner in which it will be calculated and all extra charges or the possibility that such charges may arise;
4. payment method, delivery, manufacturing of the product and complaint handling procedure;
5. information on the right of withdrawal or cancellation, if such right is provided for in the law or contract.

Aggressive commercial practices

Entrepreneurs shall not perform any commercial practice involving harassment, coercion (including the use of physical force) or undue influence in order to impair the average’s consumer freedom of choice or conduct with regard to the product and thereby induces consumer to take the decision on the contract otherwise that he / she would not have taken otherwise.

Specific unfair commercial practices

The general principles set forth above cover amongst others the following groups of specific practices which are prohibited in all cases.

Misleading practices regarding codes of conduct and other quality marks

Entrepreneurs shall not:

1. claim to be a signatory to a code of conduct when it is not;
2. use a certificate, quality mark or equivalent mark, without being authorized to do so;
3. claim that a code of conduct has an endorsement from a public or other body when it does not;
4. claim that enterprener (or its commercial practices) or a product has been approved, endorsed or authorised by a public or private body when it has not.

Bait practices and misleading marketing practices

Entrepreneurs shall not:

1. scam to bait advertising i.e. entrepreneurs shall not make an invitation to purchase products:
   • at a specified price without disclosing the existence of any reasonable grounds that will not be able to deliver or order from another entrepreneur the supply of these or equivalent products at that price by such the period and in such amounts as are reasonable taking into account the product, the scope of product advertising and the price offered;
   • at a specified price and then refuse to show the advertised item to consumers; or to refuse to take orders for it or deliver it within a reasonable time; or demonstrate a defective sample of it – with the intention of promoting a different product it;
2. claim that is making a clearance sale, is about to cease trading or move premises when it is not;
3. claim in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent;
4. describe a product as “gratis”, “free”, “without charge” or similar if the consumer will have to make any payment beside unavoidable costs of the commercial practice and collecting/delivery costs;
5. create the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
   • there is no prize or other equivalent benefit, or
   • taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.

Misleading practices regarding the nature and attributes of products, its availability and after-sales services

Entrepreneurs shall not:

1. claim that products improves chances of winning at gambling;
2. falsely state that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice;
3. state or otherwise create the impression that a product can legally be sold when it cannot;
4. claim that a product is able to cure illnesses, dysfunction or malformations, when it is not;
5. undertake to provide after-sales service without properly informing the consumer before conclusion of the agreement that such service will only be available in a language different from the language used in the commercial transaction if the language used was not an official Member State language;
6. create the impression that after-sales service in relation to a product will be available in a Member State other than the one in which the product is sold, when it is false.

Pyramid promotional scheme practices

Entrepreneurs shall not establish, operate or promote a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products.

Misleading practices by confusion

Entrepreneurs shall not promote a product similar to a product manufactured by a particular trader in such a manner as to deliberately mislead the consumer into believing that the product is made by that same manufacturer when it is not.

Subliminal advertising | Advertorial

Entrepreneurs shall not use editorial content in the media to promote a product where it has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer.

Other misleading practices

Entrepreneurs shall not:

1. present the rights that consumers are entitled to by law as a feature distinguishing the entrepreneur’s offer;
2. make a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product;
3. pass on materially inaccurate information with regard to the availability and stock of a product with the intention of inducing the consumer to acquire the product at conditions less favorable than normal market conditions;
4. include in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not;
5. falsely claim or create the impression that entrepreneur is not acting for purposes relating to its trade, business, craft or profession, or falsely representing oneself as a consumer;

Coercion practices

Entrepreneurs shall not create the impression that the consumer cannot leave the premises until a contract is formed.

Harassment practices

Entrepreneurs shall not:

1. conduct personal visits to the consumer’s home even if he or she is not there with the intention of permanent residence, ignoring the consumer’s request to leave or not to return except for the enforcement of contractual obligations, to the extent permitted by applicable law; nor
2. make persistent and unwanted solicitations by telephone, fax, e-mail or other remote media, except in circumstances and to the extent legally justified to enforce a contractual obligation.

Aggressive practices concerning children

Entrepreneurs shall not include in its advertisement any direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them.

Other aggressive practices

Entrepreneurs shall not:

1. require a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights.
2. demand immediate or deferred payment for or the return or safekeeping of products supplied by Client, but not solicited by the consumer.
3. explicitly inform a consumer that if he/she does not buy the product or service, consumer’s job or livelihood will be in jeopardy.

Unfair competition compliance requirements under Polish law

In addition to the general prohibitions described above the Polish Act on Counteracting Unfair Market Practices and Polish Unfair Competition Act include a wider list of unfair commercial practices and illegal advertising.

Consortium system

Entrepreneurs shall not operate in the form of a consortium system. A consortium system is understood as running a business consisting in the management of property gathered within a group with the participation of consumers, established in order to finance the purchase of a product for the group’s participants.

It is also an unfair commercial practice to organize a group with the participation of consumers in order to finance a purchase in a consortium system.

Unlawful Code of conduct

Entrepreneurs shall not apply code of good practice which is unlawful. The unfair commercial practise is also creation of such a code. In case of doubt, the creator of the code of good practice is any entity, in particular an entrepreneur or a trade association, responsible for the preparation and implementation or supervision of compliance with the code of good practice.

Misleading designation of an enterprise

Entrepreneurs shall:

1. not use any designation of the enterprise which may mislead the customer as to its identity; such misleading may take place through the use of a business name, name, logo, abbreviation or other characteristic symbol previously used, in accordance with law, for the designation of another enterprise;
2. eliminate danger of misleading third parties if it is designated by use of the surname of an entrepreneur which can be mistaken with identity of another enterprise formerly using such designation;
3. agree upon used designations with other entities left or created as a result of liquidation, division or transformation of an enterprise.

Fraudulent Geographical or Regional indication

Entrepreneurs shall not:

1. label goods or services with a false or fraudulent geographical indication indicating directly or indirectly a country, a region or a locality of origin or use such indication in commercial activity, advertising, commercial correspondence, invoices or other document;
2. label goods or services with a false or fraudulent geographical or regional indication, if products are protected in the place of origin, and at the same time their special characteristics or properties are connected with origin from a specific region or locality; labelling even with the added words “variety of”, “type of”, “method” or synonyms thereof, shall also be considered an act of unfair competition.

Misleading designation of goods or services

Entrepreneurs shall not use such designation of goods or services or absence thereof which might mislead customers as to their origin, quantity, quality, components, production methods, usefulness, repair, maintenance or other important features of the goods or services, or concealing risks connected with their use. Introduction of goods into trade in such packaging which may result in the same effect shall also be considered an act of unfair competition

Violation of trade secrets

Entrepreneurs shall not disclose, make use or obtain other person’s information being a trade secret of an enterprise.

Obtaining of a trade secret is an act of unfair competition in particular where it results from unauthorized access, appropriation, copying and it is obtained without consent of the person authorized to use or manage such information.

Induction to contractual infringement and interference in contractual relationships

Entrepreneurs shall not:

1. induce another entrepreneur’s workers (under an employment relationship or another) not to perform or to improperly perform duties or other contractual obligations,
2. induce customers of an entrepreneur or other persons to terminate a contract with them or not to perform or improperly perform the contract,

for its own benefit or to the benefit of a third party or to the detriment of the entrepreneur.

Imitation of products

Entrepreneurs shall not perform any imitation of a ready-made product by the method of copying the external appearance of the product with technical means of reproduction, if such copying may mislead the customer as to the identity of the producer or the product.

Notwithstanding the above, imitation is allowed when it concerns the functional features of a product, in particular the imitation of its construction, design and form, if required for their usefulness. Please note however that such imitation may infringe intellectual property rights of a third party.

Dissemination of untrue or misleading information

Entrepreneurs shall not disseminate untrue or misleading information about: (i) its own entrepreneur, (ii) its own enterprise, (iii) another entrepreneur or (iv) another enterprise in order to benefit from it or to cause damage. The information may refer to managers, goods or services, prices offered, economic or legal standing. Dissemination of untrue or misleading information shall also mean the use of:

1. untrue or imprecise titles, degrees, or other information about qualifications of employees;
2. false attestations;
3. incorrect test results;
4. incorrect information on distinctions or designations of products or services.

Access to the market

Entrepreneurs shall not obstruct market access for other entrepreneurs, especially through:

1. sale of goods or services below the manufacturing or provision costs thereof, or resale thereof below the purchase costs in order to eliminate other entrepreneurs;
2. inducing third parties to deny sale to other entrepreneurs or to refrain from purchase of goods or services from other entrepreneurs;
3. unreasonably different treatment of certain customers;
4. collecting fees for admission of goods for sale other than the trade margins;
5. taking action aimed at forcing customers to select a specific entrepreneur as their contracting party or creating conditions permitting third subjects to force purchase of goods or services from a specific entrepreneur.
6. The act of unfair competition described in 5 above may consist in:
7. substantially restricting or excluding the possibility for the customer to make a purchase from another entrepreneur;
8. creating circumstances in which third parties, directly or indirectly, force customers to make a purchase from a given entrepreneur or the entrepreneur with whom the given entrepreneur has an economic relationship;
9. issuance, offering or cashing instruments of entitlement subject to exchange for goods or services offered by a single entrepreneur or a group of entrepreneurs remaining in an economic relationship, in any and all circumstances referred to in (i) or (ii).
10. The act of unfair competition is obstructing small entrepreneurs in terms of market access through the sale of goods or services at commercial facilities of more than 400 square-metres’ selling space at the price which does not incorporate any trade margins unless:
11. it is a seasonal clearance sale made twice a year at the end of the summer and the winter season, lasting no longer than one month each;
12. it is a clearance sale made due to the upcoming expiry or best before date of the goods;
13. it is a liquidation of the commercial facilities lasting no longer than 3 months from the date of spreading the news among general public and in case of liquidation of all the commercial facilities of an entrepreneur due to the discontinuance of its commercial activity lasting no longer than one year.

Bribery

No one on behalf of entrepreneur shall bribe a person on a public post while a bribery may be committed by a natural person:

1. being an entrepreneur,
2. acting on behalf of an entrepreneur under powers to represent, or make decisions for, or exercise control over the entrepreneur
3. acting on behalf of an entrepreneur with the consent of the person referred to in 2 above.
4. Please note that bribery may also refer to persons from a private organization.

Prohibited equipment

Entrepreneurs shall not manufacture, import, distribute, sell, lease or let for use under another legal title, or own, for profit-gaining purposes any prohibited equipment as defined in the regulations on protection of certain information society services based on or consisting in conditional access.

Such equipment is hardware or software that is designed or adapted to enable the use of protected services without the prior authorization of the service provider. Protected services shall be understood as:

1. the dissemination and distribution of television and radio programs within the meaning of the provisions on radio and television broadcasting;
2. other services provided at the individual request of the service recipient by electronic means without the simultaneous presence of the parties – if they are provided for remuneration and are based on conditional access (i.e. all measures and technical undertakings that condition the use of services protected by an individual service recipient);
3. as well as services consisting in conditional access to the above service.

Premium sale

Sale to consumers of goods or services connected with granting all or some of the purchasers a free bonus consisting of goods or services different from those which are the object of sale is prohibited unless such extra goods or services are:

1. of small value or goods samples;
2. won in promotional lotteries organised on the basis of laws regulating games of chance or in contests the results of which do not depend on chance.

Pyramid selling system

Entrepreneurs shall not organise a pyramid selling system consisting in proposing purchase of goods or services by making the purchasers a promise of financial benefits in exchange for persuading other persons to make identical transactions, and such other persons obtaining similar financial benefits due to persuading subsequent persons to participate in the system.

Such scheme shall not be considered unfair competition provided that:

1. financial benefits received as a result of participating in the sale system originate from the proceeds from purchase or sale of goods and services at the price the value of which cannot grossly exceed the real market value of such goods and services;
2. a person resigning from participation in the sale system has the right to sell back to the Client, for at least 90 per cent of the purchase price, all the saleable goods purchased from the Client, all the information and instruction materials, samples of goods or presentation packages purchased within 6 months prior to resignation.

Overselling owner’s brands

It shall be an act of unfair competition for discount stores networks to introduce into trade goods in the amount exceeding 20 percent of turnover value, the brands of such goods being owned by the owner of the network or subsidiary subjects thereof.

Business information

Entrepreneurs cannot as a creditor:

1. submit business information about its debtor to the business information office contrary to the rules set forth in the Act of 9 April 2010 on providing access to business information and on business data exchange;
2. fail to update or delete such business information when an obligation to do so has arisen, so basically in situations where the debtor carried out certain actions in relation to its debt.

Unjustified extension of time limits of payment

Entrepreneurs cannot unjustifiably extend the deadline for payment for goods or services:

1. contrary to the law;
2. when such extension is glaringly deviating from good practise violating the rule of acting in good faith and the rule of reliability;
3. when it shall be deemed failure to adjust to a schedule of delivery of goods or a schedule of provision of a service or
4. failure to take into account the feature of the goods or the service being the subject of a contract.

Unfair Competition Liability and Claims

Entrepreneur will be liable if it (directly or through any of its representatives or employees) engages in any of the unfair competition or advertisement illegal practices. In particular, pursuant to Article 18.1 Act on Unfair Competition those affected by the unfair practice or illegal advertising will be entitled to exercise the following actions against the entrepreneur:

• cessation of unlawful actions;
• removal of the effects of unlawful actions;
• making of a single or a series of statements with appropriate contents and in a proper form;
• compensation for the damage suffered on general rules;
• release of unjust benefits according to general rules;
• ordering the payment of an adequate amount of money for a specific public purpose connected with supporting Polish culture or protection of national heritage – if the act of unfair competition was culpable

Notwithstanding Unfair Competition regime, pursuant to Article 12 Counteracting Unfair Market Practices Act consumer, whose interests have been threatened or infringed by unfair market practice of the entrepreneur could demand that the entrepreneur:

• abandons this practice;
• removes the effects of this practice;
• submits a single or multiple declaration with appropriate content and in an appropriate form;
• compensates for the damage caused in the light of general rules, in particular
• demanding the cancellation of the contract with obligation of mutual reimbursement of benefits and reimbursement by the entrepreneur of costs related to the purchase product;
• awards an appropriate amount of money for a specific public purpose related to supporting culture Polish culture or protection of national heritage.

In the event of unfair trade practice under poses also a breach of Polish antitrust laws – penalties for antirust infringements – may be imposed.

Claims for unfair competition infringements	Claims for unfair market practices infringements
cessation of actions	abandon practice
remove of effects	remove effects
statements of appropriate content	declaration of appropriate content
compensation for damages	compensation for damages
release of unjust benefit	cancellation of the contract
amount of money for a specific public purpose	amount of money for a specific public purpose