If an unfair commercial practice harms collective consumer interests, it may be considered an unfair commercial practice violating collective consumer interests**. In such cases, the President of the Office of Competition and Consumer Protection conducts administrative proceedings to issue a decision under which a trader using such practices may be fined.

Special types of unfair commercial practices

The Act lists the following special types of unfair commercial practices:

• misleading commercial practice,
• aggressive commercial practice,
• use of the code of good practices contrary to applicable laws,
• operating pyramid schemes, or organisation of a group of consumers in order to finance purchases in a pyramid scheme.

What is a misleading commercial practice?

A misleading commercial practice may be either an action or failure to act.

An example of a misleading commercial practice would be for example:

• dissemination of false information,
• dissemination of true information in a way that may be misleading,
• action relating to placing a product on the market that may mislead consumers as to products or their packaging, trade marks, trade names or other marks distinguishing a trader or their products, in particular comparative advertising,
• failure to adhere to a code of good practices which a trader voluntarily adopted, if the trader claims in commercial practices that they are bound by such a code.

Examples of misleading omissions may be in particular:

• hiding or failure to provide material product information in a clear, unambiguous or timely manner,
• failure to identify the commercial intent of the practice if it is not apparent from the circumstances and if this causes or is likely to cause the average consumer to take a transactional decision that they would not have taken otherwise.

When is a commercial practice considered to be aggressive?

A commercial practice is regarded as aggressive if, by undue influence, it significantly impairs or is likely to significantly impair the average consumer's freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that they would not have taken otherwise.

The Act lists examples of aggressive commercial practices which are regarded as unfair in any circumstances. These include among others:

• giving the impression that a consumer cannot leave the trader’s premises if they do not sign a contract,
• paying visits at the consumer’s place of residence even when this is not that consumer’s permanent residence, ignoring their request to leave the place or to stop such visits, except for the enforcement of contractual obligations to the extent allowed in applicable laws,
• persuading consumers, by phone, fax, email or other means of distance communication, to purchase products in a way that is onerous and is not caused by the consumer’s action or failure to act, except for the enforcement of contractual obligations to the extent allowed in applicable laws.

What is the liability of traders who use unfair commercial practices?

As a rule, the Act on counteracting unfair commercial practices regulates civil-law transactions, and traders who use unfair commercial practices bear mainly civil-law, and not administrative-law liability.

A consumer whose interest has been threatened or harmed as a result of an unfair commercial practice may demand:

• stopping the practice,
• removing the effects of the practice,
• making a one-time or repeated statement with appropriate wording and form,
• remedying the damage on general terms, in particular through a demand that a contract be cancelled and the parties return to each other the consideration received, and the trader reimburses the costs of purchasing the product,
• court award of a certain amount of money for a specific social cause to support Polish culture, protection of national heritage or consumer protection.

What does harming collective consumer interests mean?

Collective consumer interests are harmed when an unlawful practice of a trader affects a certain group (e.g. their customers) or an unlimited number of consumers, threatening interests of each consumer who is or may be that trader’s counterparty, which means that potentially anyone can be harmed by such a practice.

For example, if costs of calls in a phone bill are miscalculated or unclear wording is used in a specific contract, these are individual cases and as such do not harm collective consumer interests.

However, if a customer service system is structured in a way that makes it virtually impossible to file a complaint about a contested bill, this does amount to harming collective consumer interests.

A practice violating collective consumer interests is understood as a trader’s conduct that harms these interests and is contrary to law or good practices.

The Competition and Consumer Protection Act specifies an open list of practices violating collective consumer interests. Such practices cover in particular the following:

• infringing an obligation to provide consumers with reliable, true and complete information;
• unfair commercial practices;
• offering to consumers the purchase of financial services which do not meet the needs of such consumers considering the information available to the trader on the features of such consumers, or offering such services in a way that is not appropriate considering the nature of the services.

Reporting practices violating collective consumer interests to the Office of Competition and Consumer Protection

Consumers can report suspected practices violating collective consumer interests to the Office of Competition and Consumer Protection. The report submitted by the consumer provides a basis for the President of the Office to initiate an administrative procedure.

To submit a report, a consumer has to send a written notification to the Office’s address. Pursuant to the Code of Administrative Procedure, all requests submitted to the Office of Competition and Consumer Protection should include the sender’s data and detailed contact details.

Anonymous reports shall not be examined by the Office.

When does the President of the Office intervene in cases involving practices violating collective consumer interests?

The task of the President of the Office of Competition and Consumer Protection is to act in the public interest and counteract practices violating collective consumer interests.This is stipulated in the Competition and Consumer Protection Act.

It is appropriate to remember that collective consumer interests are not understood as the sum of the individual interests of consumers (e.g. 100 customers wronged by a property developer), but as a situation when interests of a potentially unlimited number of consumers are harmed*.That is why the President of the Office of Competition and Consumer Protection should conduct proceedings only in the cases which are the most significant for the collective interests of consumers. The cases to be handled by the President of the Office are verified on the basis of transparent criteria:

• scale of violation, understood as a potentially wide circle of consumers targeted by an unlawful practice of a trader;
• degree of violation, understood as potentially serious detriment or threat to consumers’ commercial interests;
• manner of violation, understood as the nature of the unlawful actions of a trader;
• availability of individual legal remedies, understood as an ability to protect oneself against the negative effects of a trader’s unlawful practice using individual legal remedies;
• potentially substantial benefits of the Office’s intervention for all consumers, understood as expected substantial benefits for collective consumer interests following from the authoritative decision of the President of the Office in relation to the effort needed to obtain the benefits.

* This was confirmed for example in the ruling of the Court of Appeal in Warsaw of 10 July 2008, File No VI ACa 306/08.

What are abusive clauses used in contracts with consumers?

In many areas of life consumers do not really have an option to negotiate the terms of the proposed contract. They can either sign the contract or reject it as whole. This applies for example to contracts with banks, phone companies, property developers, insurance companies, travel agencies, gas and electricity suppliers, etc. This poses risk that a trader may impose on a consumer terms that will not be beneficial to him. That is why, under the Civil Code, the terms that have not been agreed on individually are not binding on the consumer if they shape their rights and obligations in a manner contrary to good practices and grossly violate the consumer’s interests. An example of such a provision is when a trader’s liability for non-performance or improper performance of a contract is excluded. Importantly, a clause determining the main consideration of the parties, including the price or remuneration, cannot be considered abusive if it has been worded in a clear way.

Consumer rights with respect to contracts with abusive clauses

A consumer who suspects that a contract proposed by a trader includes prohibited clauses should point this out to the trader. If the trader does not agree to change the contested clauses, the best option is to find a different trader.

If a consumer has already signed a contract with prohibited clauses, then – as per the Civil Code – they are not legally binding on the consumer.

If the trader does not agree with that, the consumer should ask an ordinary court (district or regional) to issue an order declaring that the clause is not binding. For example, if the consumer wants to rescind the contract, and the terms of the contract either prevent this or provide for a grossly disproportionate penalty, then the consumer may justify the action by asserting that such a clause is prohibited.If the trader does not take that into account, the consumer may enforce the claim in court. This is known as a specific control of clauses in model contracts.

The consumer may also notify the President of the Office of Competition and Consumer Protection of a suspected use of a prohibited clause in a model contract by a trader, and then become an interested party in the proceedings conducted by the Office for a finding that clauses in a model contract are prohibited. As an interested party, the consumer may submit documents and explanations as to the circumstances of the case, and has a right to review the case file. In the report sent to the Office, the consumer should indicate whether they contacted the trader to have the contested clause removed from the model contract and what the trader’s position was. In addition, the entire model contract with the contested clause should be attached, including any arguments supporting the finding that the clause is contrary to good practices and grossly violates consumer interests.

Powers of the President of the Office of Competition and Consumer Protection with respect to counteracting prohibited contractual provisions

Following the proceedings for a finding that a clause in a model contract is prohibited, the President of the Office issues an administrative decision on whether a given clause has a prohibited character and whether its further use will be prohibited. The Office’s decision finding that a clause in a model contract is prohibited is effective only with respect to the trader using that clause and all consumers who have signed a contract with the clause identified in the decision. This is called an abstract (non-specific) control of clauses in a model contract. In the decisions, the President of the Office may also specify the measures required to remove lasting effects of a trader’s unlawful practice and impose a financial penalty. The President’s decisions are published on the Office’s website.

Before the amended Competition and Consumer Protection Act entered into force on 17 April 2016, cases on the prohibited character of contractual clauses were settled by the Competition and Consumer Protection Court (Sąd Ochrony Konkurencji i Konsumentów, SOKiK). Contractual clauses which were found to be prohibited in a final and binding court judgement were entered into the register of prohibited clauses and since that point they could not be used in business with consumers.

The Office of Competition and Consumer Protection carries out regular checks of model clauses used in consumer contracts by traders from many industries, from language schools and private universities through tourist operators, insurance companies and banks to cable TV companies and gas suppliers. Such checks are often initiated after reports sent to the Office by consumers, consumer rights adviser and consumer organisations. On the basis of such reports, the Office of Competition and Consumer Protection initiates ex officio proceedings for a finding that clauses in a model contract are prohibited.

Where to look for help?

You can use the help of your municipal or district consumer ombudsman or one of the state-funded consumer organizations.