The Polish Court of Competition and Consumer Protection in its judgment of 31 May 2012 case file XVII Amc 5817/11 held that an entrepreneur cannot include in its terms of telecommunication services any regulations and provisions which would release it from the liability for any loss due to lack of customer access to the service provided. Activities that intend to misinformation, confusion, misconception or are directed to exploit ignorance or naivety of the customers and consumers, are contrary to good customs.
Archive for: Polish Court of Competition and Consumer Protection
The President of the Office of Competition and Consumer Protection in its decision of 20 June 2012 no. RPZ 11/2012 ruled that the Polish company Creative Team S.A. infringed on collective interests of consumers, by posting in newspaper advertisements that concerned a dedicated interactive game for mobile phones entitled “Tank War”, of information suggesting a possible free use of that game, while free was just sending a text message to a specified number in order to download this application, and using it in a specific mode. The President decided that such actions were inconsistent with the provisions of the Polish Act of 16 February 2007 on Protection of Competition and Consumers – APCC – (in Polish: Ustawa o ochronie konkurencji i konsumentów), published in Journal of Laws (Dziennik Ustaw) No. 50, item 331, with subsequent amendments.
Creative Team S.A. filed an appeal complaint before the Polish Court of Competition and Consumer Protection.
The provision of the Rules of the Municipal Public Library in Słupsk stated that the Library may allow for reproductions or digital reproductions of one publishing volume sheet, which is approx. 22 pages of A4 format, of any documents protected by copyright law that are in the collection of the Library. However, such rules are contrary to the provisions of Article 23 of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments.
Lawful Use of Protected Works
Art. 23.-1. It shall be permissible, without the consent of the creator, to make use free of charge, of a work that has already been disclosed. However, this provision shall not authorize the construction of a building based on an architectural work or a work of urban architecture made by another person.
2. Personal use shall extend to use within a circle of persons who are personally related, in particular by blood or marriage, or who entertain social relations.
The Polish Court of Competition and Consumer Protection in its judgment of 9 December 2011 case file XVII AmC 113/11 held that such rule is prohibited and deemed as a wrongful contractual provision, as defined in the Article 3851 § 1 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments.
Article 3851. § 1. Provisions of a contract concluded with a consumer, which have not been individually agreed with him, shall not be binding thereupon, if his rights and duties have been stipulated in conflict with public decency and in flagrant violation of his interest (wrongful contractual provisions). This shall not relate to the provisions which specify basic performances of the parties, including the price and remuneration if determined explicitly.
§ 2. Where the provision referred to in paragraph 1 is not binding upon the consumer, the parties shall be bound by the remaining provisions of the contract.
§ 3. The provisions not agreed individually shall be such provisions of the contract over which the consumer had no actual influence. It shall concern, in particular, the provisions of the contract taken over from the model form of contract offered to a consumer by a contracting party.
§ 4. The burden of evidence to prove that the provision has been agreed individually shall be borne by the party who claims so.
The Court held that the Library cannot decide on limits of copying of any of the library collections. Copying books without limitation of the maximum number of pages is legally permissible. The provisions of the ARNR do not indicate any limits. Such a judgment come as no surprise, because every person who is in possession of any reprographic devices and conducts economic activities within the scope of reproduction of works for the personal use of third parties, is according to the provisons of article 201 of the ARNR obliged to pay, through a Collection Society, fees at up to 3% of proceeds generated from such activities, to authors and publishers, unless the reproduction is done on the basis of a contract signed with a rightholder. Such fees are paid to authors and publishers in equal parts.
The President of the Office of Competition and Consumer Protection in its decision of 20 December 2007 No. DOK-98/2007 decided that the market practice of Telekomunikacja Polska S.A. based on discriminatory lowering of IP traffic, by actions that lead to a reduction of the quality or the disabling of data transfer, is the practice of restricting competition. Telekomunikacja Polska appealed.
The Court of Competition and Consumer Protection in its judgment of 11 April 2011 case file XVII AmA 62/08 overturned the questioned decision in part. However, the Court did not argue with the President of the OCCP, that Telekomunikacja Polska was quilty of restricting competition.
The Court of Competition and Consumer Protection in its judgment of 23 February 2006 case file XVII Ama 118/04 published in the Official Journal of President of the Office of Competition and Consumer Protection of 2006/2 p. 37, held that respect for others is considered as the essence of the concept of good customs in contractual relationships between business and consumers. Such respect should be expressed in proper information how the consumer could exercise its rights. The professionals and entrepreneurs should not to use their privileged position, and they should deal with the consumer as a partner in every agreement. Misinformation, confusion, misconception and the use of consumers’ ignorance or naivete were deemed contrary to good customs.
A person who bought CHIO CHIPS produced by the Lorenz Bahlsen Snack-World, filed a complaint to the representation of the Office of Competition and Consumers Protection in Wrocław. This dissatisfied consumer argued that being in the store, he chose CHIO chips and not the other products that were sold in a similar price, because he was attracted by a draw where he could win some nice prizes. However, he became disappointed because when he did open the package and read the coupon, it turned out that the draw was already over. The date of the draw was shown on the inside part of a special bar attached to chips’ bag, but it could be difficult to read after the break of the package. Because of the lack of a clear declaration with regard to the end date of the draw, the Company was fined 22000 PLN for the practice of contravention of collective interests of consumers. According to the Polish Act on Protection of Competition and Consumers – APCC – (in Polish: Ustawa o ochronie konkurencji i konsumentów) 16 February 2007 published in Journal of Laws (Dziennik Ustaw) No. 50, item 331, with subsequent amendments, it was a violation of the obligation to provide consumers with reliable, true and complete information regarding the product.
The Polish Court of Competition and Consumer Protection upheld the contested decision in its judgment, case file XVII Ama 125/08. Such essential information as the period of promotion/draw or the validity date of the product cannot be hidden inside the bar of the package and thus not visible at first glance. Such information must be readily available. The Court ruled that the date of a draw should be indicated clearly on the product packaging and incomplete information is misleading. The judgment is not final yet, the company may file an appeal.
Below 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 judgment of the Polish Court of Competition and Consumer Protection of 27 February 2012 case file XVII AmA 192/10.
- 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.
I. 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: ), published in 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, published in 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), published in 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), published in 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”.
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.
The Register of Prohibited Clauses operated by the Office of Competition and Consumer Protection contains contractual clauses found unlawful by a legally binding judgements. According to the latest judgment of the Polish Court of Competition and Consumer Protection of 26 December 2006, case file XVII AmC 170/05, it won’t be so easy to get cybersquatters who are private persons before any ADR court. This case concerned two clauses of the Domain Names Regulations issued by NASK.
In case a third party initiates a legal action in the Arbitration Court against the Subscriber claiming that the Subscriber has infringed the rights of that person by entering into or performing the Agreement, the Subscriber shall submit to that Arbitration Court a duly signed arbitration clause to the Arbitration Court in due time stated in the summon to sign this arbitration clause.
The non-signing of the arbitration clause specified above shall result in the termination of the Agreement three months after the time stated to sign this arbitration clause, and this time limit shall be shortened to the date of the expiry of the calculating period based on the Price List if this date occurs before the end of the three month-period after the time stated to sign this arbitration clause
After this judgment, the ADR in trade mark cases is unlikely to succeed if the disputed domain name is registered in the name of a natural person.
See also “Polish case law on domain names“.
The Supreme Court in its judgment of 13 July 2006 case file III SZP 3/06 ruled that the application of standardized agreements which provisions are identical with the provisions deemed as prohibited contractual provisions (abusive clauses) by the District Court in Warsaw, the Court of Competition and Consumer Protection, and were entered into the register kept by the President of the Office of Competition and Consumer Protection, may be considered in relation to another undertaking as the practice detrimental to/infinging on the collective interests of consumers.
The 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.
Below you will find a list of judgments on Internet domains. This list does not include judgments and decisions issued by arbitration bodies and authorites. You can find a more detailed discussion on each judgment under the link provided with the case file. All judgments are given in chronological order.
- The judgment of the Supreme Court of 9 December 2011 case file III CZP 120/11.
- The judgment of the Appellate Court in Warsaw of 1 April 2011, case file I ACa 1087/10.
- The decision of the Appellate Court in Lódż of 24 March 2010, case file I ACz 232/10.
- The judgment of the District Court in Białystok of 2 March 2010, case file I C 2179/09.
- The judgment of the Appellate Court in Białystok of 6 May 2008, case file I ACz 364/08.
- The judgment of the Appellate Court in Warsaw of 16 April 2008, case file I ACa 1334/07.
- The judgment of the Voivodeship Administrative Court of 30 November 2007, case file II SA/Wa 71/07.
- The order of the Supreme Court of 22 October 2007 case file III CZP 109/07.
- 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 Appellate Court in Katowice of 16 June 2006, case file I ACa 272/06.
- The judgment of the Appellate Court in Poznań of 26 April 2006, case file I ACa 1228/05, published in electronic database LEX no. 214296.
- The judgment of the Regional Court for Warszawa-Mokotów, case file II C 1091/04.
- The judgment of the District Court in Łódź, X Commercial Division of 22 June 2004, case file X GC 1245/03.