Terms of Service of Domeny.pl website contained a clause that allowed Domeny.pl to introduce changes in TOS and it also included a statement that the changes take effect “from the time a new version is available on the website”. The President of the Office of Competition and Consumer Protection decided that this provision violates the collective interests of consumers as they should be always informed about amendments to the terms. Otherwise they would have to constantly check to see if TOS has not been modified. The President ordered the removal of the questioned terms of service. Domeny.pl filed a complaint against this decision. The Supreme Court in its judgment of 12 April 2011 case file III SK 44/10 dismissed the complaint.
Archive for: consumer protection law
Collective interests of consumers, case III SK 44/10
May 9th, 2011, Tomasz RychlickiReadability test of pharmaceutical products’ leaflet
June 2nd, 2010, Tomasz RychlickiIn the Regulation of the Minster of Health of 26 April 2010 on the leaflet readability test (in Polish: rozporządzenie w sprawie badania czytelności ulotki), Journal of Laws of 18 May 2010, No. 84, item 551, the Polish Minister of Health provided the principles of examination under which the content of the information attached to the pharmaceutical products is understandable.
The readability test of a pharmaceutical product’s leaflet is carried out by the responsible entity (an entrepreneur who applies for or has received the marketing authorization for a medicinal product), or any other person on its behalf, to ensure that a consumer understands the relevant information contained in this leaflet and will be able to correctly apply the medicinal product. The readability test should be conducted with the following minimum requirements:
- a leaflet should be in the version that will be attached to the packaging of a pharmaceutical product, or its color layout design,
- test participants are those who may use the medicinal product, including those who have difficulty understanding written information.
The test is carried out with ten participants. A positive test result means that for each question, 90% of study participants may find the information on a given leaflet, of which 90% may show their understanding and give the correct answer and to proceed with the medicinal product.
Abusive clauses in B2C IT contracts, case RWR 61-23/09/ZK
April 9th, 2010, Tomasz RychlickiThe owners of hosting service available at pobieraczek.pl website advertised their business using slogans suggesting that the hosting and downloading of different files (mostly copyrighted material) is free. Advertising banners displayed “10 days to download for free” and “Yes, I want to test for 10 days”. However, users who wanted to host or to download files had first to register on the site, giving their name, address, date of birth and e-mail. The requirement was also to accept of the Terms of Service. The user registration date was also the first day of consideration of the contract which was concluded even for a year. In addition, the payment was charged from day one, and not, as the advertising slogans suggested after 10 days.
Following numerous complaints, the President of the Office of Competition and Consumer Protection initiated investigation proceedings based on article 4(1) and (2) and article 5(1) of the Polish Act of 23 August 2007 on combating unfair commercial practices – CUCP – (in Polish: ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym), Journal of Laws (Dziennik Ustaw) No. 171, item 1206.
Article 4
1. A commercial practice used by a trader in relations with consumers shall be unfair whenever it is contrary to good customs and significantly distorts, or may distort, the economic behavior of the average consumer prior to, during or after the conclusion of a product contract.
2. In particular, a commercial practice shall be regarded as unfair whenever it is misleading or aggressive and whenever a code of conduct is used that is contrary to law, if such activities meet the conditions set forth in section 1 above.
(…)
Article 5
1. A commercial practice shall be regarded as a misleading action if, in any way, it causes, or may cause, an average consumer to take a transactional decision, which he/she would not have otherwise taken.
The President of the Office of Competition and Consumer Protection, Wrocław Delegacy, in a decision of 31 March 2010, no. RWR 61-23/09/ZK, ruled that owners of the pobieraczek.pl website were involved in practice infringing collective consumer interests. The President imposed a fine of up to 119570 PLN paid into the state budget on each of the two partners of a civil partnership who runs the questioned business activity.
This decision is not yet final. A complaint may be filed to the Court of Competition and Consumer Protection.
See also “Polish regulations on prohibited contractual provisions” and “Polish case law on abusive clauses in B2C IT and IP contracts“.
Polish case law on abusive clauses in B2C IT and IP contracts
July 8th, 2009, Tomasz RychlickiBelow you will find a list of judgments and decisions on abusive clauses in B2C IT and IP contracts. You can find a more detailed discussion on each judgment or decision under the link provided with the case file. All judgments and decisions are given in chronological order.
- The decision of the President of the Office of Competition and Consumer Protection, Wrocław Delegacy of 31 March 2010, no. RWR 61-23/09/ZK.
- The judgment of the Polish Court of Competition and Consumer Protection of 26 December 2006, case file XVII AmC 170/05.
- The judgment of the Supreme Court of 13 July 2006, case file III SZP 3/06.
See also my post entitled “Polish regulations on prohibited contractual provisions“.
Polish regulations on prohibited contractual provisions
April 8th, 2009, Tomasz RychlickiI. The Law
The main sources of binding laws in the Republic of Poland are the Constitution of 2 April 1997, acts passed by the Parliament, ratified international treaties and regulations issued, for example, by the Prime Minister or the Council of Ministers – Polish government. Regulations are issued for the purpose of implementation of acts.
I.A. Substantive law
- Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No. 47, item 211, with later amendments.
- Act of the protection of certain consumer rights and on the liability for damage caused by a dangerous product – PCCR – (in Polish: ) , Journal of Laws (Dziennik Ustaw) of 31 March 2000, No. 22 , item 271.
- Act on protection of the purchasers of the right to use a building or residential unit for a specified time each year and on amendment to the Civil Code, Code of Minor Offenses,and the Law on Land and Mortgage Registers and Mortgage, Journal of Laws (Dziennik Ustaw) of 2000, No. 74, item 855.
- Act on specific terms and conditions of consumer sale and amendments to the Civil Code.
- Act of 16 February 2007 on competition and consumer protection, Journal of Laws – CCP – (in Polish: Ustawa o ochronie konkurencji i konsumentów), Journal of Laws (Dziennik Ustaw) of 2007, No. 50, item 331.
- Act of 23 August 2007 on combating unfair commercial practices – CUCP – (in Polish: ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym), Journal of Laws (Dziennik Ustaw) No. 171, item 1206.
I.B. Case law
See “Polish case law on abusive clauses in B2C IT and IP contracts“.
II. Prohibited contractual provisions
Prohibited contractual provisions or “abusive clauses” are understood as provisions of the contract concluded with the consumer that were not agreed individually and in consequence shape consumer’s rights and obligations in a manner contrary to good customs and grossly violate consumer’s interests. Such provisions are not binding on the consumer, but the parties are bound by other provisions of the contract.
In accordance with the provisions of article 3853 of the Civil Code, if in doubt – it is considered that unlawful contractual provisions are those that, in particular:
- exclude or seriously limit the liability to the consumer for failure to perform or improper performance of an obligation,
- provide provisions, of which the consumer was unable to get acquaint with before concluding the contract,
- impose solely on the consumer an obligation to pay a fixed sum in the case of the resignation from the conclusion or performance of the contract,
- impose on the consumer, who has not performed the obligations or departed from the contract, the obligation to pay grossly inflated penalty or smart money,
- exclude the jurisdiction of Polish courts or submit the matter to a Polish or foreign arbitration court, or other authority, and impose the adjudication by the court which is not locally relevant according to the Civil Code.
These are couple of examples of the so-called “gray abusive clauses”.
III. Procedure
The District Court in Warsaw, the Court of Competition and Consumer Protection decides if a given provision is prohibited and abusive. Anyone who has been or may be offered a contract containing such a clause, consumer organizations, consumer ombudsmen and the President of the Office of Competition and Consumer Protection may bring an action before the Court. Consumers may obtain assistance from the local consumer ombudsman or one of the state-funded consumer organizations.
The clauses which have been found abusive by a final decision of the Court are entered into the Register of Prohibited Clauses that is available on the website of the President of the Office of Competition and Consumer Protection and as of this moment cannot be used in relations with consumers. The application of such clauses may be regarded as an infringement of collective consumer interests and may result in a fine of up to 10% of the trader’s revenue.
Trade mark law, case III SA/Wr 499/08
January 30th, 2009, Tomasz RychlickiThe Voivodeship Administrative Court in Wrocław in its judgment of 28 January 2009 case file III SA/Wr 499/08 held that the powers of sanitary authorities include the power to control of foodstuffs also in terms of their marking and labeling. According to article 120 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with later amendments, the trade mark is protected as a whole regardless of its composition. So questioning the legality of a trade mark that was made by the State Sanitary Inspection, with the assumption that part of the label of foodstuff is a registered trademark, lead to an unacceptable invasion of the powers reserved by law for the Polish Patent Office. Indeed, such action of SSI would, in fact, “prohibit” the use of a trade mark, while the State Sanitary Inspection cannot encroach on the powers reserved by law for other state authorites.
Article 120
1. Any sign capable of being represented graphically may be considered as trademark, provided that such signs are capable of distinguishing the goods of one undertaking from those of other undertakings.2. The following, in particular, may be considered as trademarks within the meaning of paragraph (1): words, designs, ornaments, combinations of colours, the three-dimensional shape of goods or of their packaging, as well as melodies or other acoustic signals.
3. Any references in this Act to:
(i ) trademarks shall also mean service marks,
(ii) goods shall mean, in particular, industrial or handicraft goods, agriculture products or natural products, such as, in particular, waters, minerals, raw materials, as well as, subject to Article 174(3), services,
(iii) counterfeit trademarks shall mean identical trademarks illegally used or trademarks which in the course of trade can not be distinguished from the trademarks registered for the goods covered by the right of protection,
(iv) earlier trademarks shall mean the trademarks applied for registration or registered basing on the earlier priority.
A situation where an entrepreneur has advertised tea, using only, image of cannabis-like leaves cannot be considered as advertising of narcotic drugs or psychotropic substances. In this case, it was not a promotion of any other substances prohibited by the law because, there was no name of any specific drug or psychotropic substance. Moreover, this issue goes beyond the competence of the State Sanitary Inspection.
The cassation complaint was rejected by the Supreme Administrative Court in its judgment of 31 May 2010 case file II OSK 832/09.
Product information, case VI SA/Wa 2119/08
January 15th, 2009, Tomasz RychlickiThe Voivodeship Administrative Court in Warsaw in its judgment case file VI SA/Wa 2119/08 ruled on products information and labelling. The Polish company BIZ from Swiebodzice appealed the decision of the Trade Inspection ordering it to change information placed on products (tiles) that were imported form Spain where all descriptions were only available in Spanish. The Company claimed that it presents its clients with all information needed in Polish language during sales. However, the Court ruled that according to article 3(1) and 6 of the Act of 27 July 2002 on specific terms and conditions of consumer sale and amendments to the Civil Code (in Polish: Ustawa o szczególnych warunkach sprzedazy konsumenckiej oraz o zmianie Kodeksu cywilnego) published in Journal of Laws (Dziennik Ustaw) no 141 item 1176, all information should be provided in given conditions.
1. The seller selling his products in the Republic of Poland shall provide clear, understandable, not misleading information in Polish, necessary for proper and full use of the consumer good sold. In particular, the following information shall be provided: name of the product, description of the manufacturer or importer and country of origin of the product, safety label and kite mark required by separate provisions, information whether the product is approved for general sale in the Republic of Poland, as well as, according to the type of the product, specification of energy consumption and other data mentioned in separate provisions.
(…)
6. The information or documents referred to in paragraphs 1 and 5, should be drawn up in the Polish language, or, if the type of information allows it, in a comprehensible form. The requirement to use the Polish language does not apply to names, trademarks, trade names, indications of origin and customarily used scientific and technical terminology.
The seller is explicitly required to provide information, sufficient for the proper and full use of the goods sold. Such information should be in Polish language or in a comprehensible graphic form and placing a substitute of product’s information in the form of the European standards is not enough, because it will be only legible for oriented, but not the average consumers.
Polish regulations on unfair commercial practices
December 30th, 2007, Tomasz RychlickiThe Act of 23 August 2007 on Combating Unfair Commercial Practices – CUCP – (in Polish: ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym) published in Journal of Laws (Dziennik Ustaw) No. 171, item 1206, came into force on 21 December 2007. It implemented the Directive 2005/29 of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450, Directives 97/7, 98/27 and 2002/65 of the European Parliament and of the Council and Regulation 2006/2004 of the European Parliament and of the Council (“Unfair Commercial Practices Directive”).
Among others things, it defines in article 5(1) misleading commercial practices as actions connected with introduction of products into the market which may lead to mistake as regards to products, its packaging, trade marks, trade names or other signs capable of identifying entrepreneurs, particularly comparative advertising.
The Act also deals with crypto-advertising which is defined as using commentary content in mass-media sources to promote a product where the business/entrepreneur paid for such action but it is not clearly indicated in the content, images or sounds and it is not easily identified by the consumer.
The Act also covers aggressive commercial practices. It defines such actions as (i) onerous processes which are not connected with consumers’ actions or (ii) desisting from acting, i.e. inducing the purchase of products via phone, fax, electronic mail or other means used to communicate in distance.
See also “Polish regulations on prohibited contractual provisions“.
Consumer protection, case XVII Ama 51/00
January 24th, 2006, Tomasz RychlickiThe Court of Competition and Consumer Protection in its judgment of 22 listopada 2000 case file XVII Ama 51/00 held that the agreement which is inconsistent with statutory law or is designed to circumvent statutory law is deemed null and void and the party of such agreement is not bound by it.
See also “Polish regulations on prohibited contractual provisions” and “Polish case law on abusive clauses in B2C IT and IP contracts“.