Poland: Traders' Obligations Under The New Consumers Protection Act

The new consumers protection act ("Act") which came into force on 25 December 2014 changed the obligations that traders (entrepreneurs) have with regard to the execution of sales contracts with consumers (relating to both goods and services) and warranty rules relating to the provided goods.

The Act implemented provisions of the EU Directive on Consumer Rights of 25 October 2011 (2011/83/EU) and abolished the previously binding Polish act on the protection on certain consumers' rights and dangerous products. The new regulations implemented by the Act relate to "traditional" transactions, as well as to distance sales (including those conducted online, by email or traditional mailings, or by phone, fax or SMS) and off-premises sales (e.g. at a consumer's home).

The changes introduced by the Act will affect not only the sellers of goods, but also entrepreneurs providing services to consumers, including banks, insurance companies or leasing entities providing financial services on the basis of distance sales contracts.

Wider information obligations

Before entering into a sales contract with a customer, each merchant must provide the consumer with information explicitly enumerated in the Act, e.g. the trader's exact contact details, the main characteristics of the goods or services that are the subject of the contract, the total price of the goods or services inclusive of taxes, the regulations regarding trader's liability for the goods or services, a description of post-transaction services and warranty rules, etc.

Under the Act, this obligation to inform consumers relates to "traditional" sales contracts, as well as to distance and off-premises sales contracts (previously, such obligation applied only to the latter). The list of specific information that has to be made available to a consumer with respect to distance and off-premises contracts is much wider than was previously the case, as it has been increased to more than 20 items, compared to 11 under the previous act. As regards "traditional" sales contracts, the Act specifies that 9 items of information must be made available to consumers.

Right of withdrawal

With respect to distance and off-premises contracts, a consumer has a right to withdraw from a contract within 14 calendar days without any cause and a trader must respect a consumer's withdrawal (previously, the deadline was 10 days). The above period starts running: (i) with respect to a sale of goods, from the hand-over of goods, or (ii) with respect to services, from the contract's execution date.

The withdrawal is effective if the relevant statement by the consumer has been sent to a trader within the above 14-day deadline, i.e. the actual delivery of the statement to the trader may take place after the lapse of the deadline. In the event of a withdrawal, the trader should return all payments received from the consumer, including the costs of delivering the goods to the consumer, while the consumer must cover the costs of returning the goods to the trader.

The right of withdrawal is excluded only in situations explicitly listed in the Act. Such exceptions include, for example: the sale of services if they were performed in full, the sale of goods prepared in accordance with a specification prepared by a consumer, or the sale of newspapers and magazines. The catalogue of exclusions is much wider compared with the previous act.

Additional costs

The Act provides that the trader must inform consumers in advance and in a clear manner regarding all of the costs associated with a contract. At the same time, the Act establishes a rule that consumers cannot be charged with any fees which were not explicitly enumerated in the sales contract or to which they did not explicitly agree.

Statutory warranty rules

The previous regulations contained specific rules relating to the warranty for goods provided to consumers that differed from the general rules included in the Polish civil code. Now, these specific rules have been amended (so that they are similar to the general rules) and introduced directly into the Polish civil code.

Generally, a trader is liable towards a customer for physical and legal defects. Polish civil code contains a catalogue of examples of such defects, e.g. when goods do not have qualities described in a sale contract or do not have qualities whose existence a trader or a producer had assured to the customer (physical defect) or when goods are owned by a third party or are encumbered with a third parties' right (e.g. pledge) (legal defect).

In case of a defect, a customer has the right to: (i) file a statement on a proportional decrease of the purchase price, or (ii) withdraw from the contract; in both cases, they can exercise this right only if the trader fails to immediately replace or fix a defect (but such replacement or fixing of a defect may only be undertaken one time). Furthermore, a customer has a stand-alone right to request a replacement or repair of defective goods.

If a trader does not reply to a consumer's request within 14 days after receiving it the request is deemed to have been accepted.

The liability under statutory warranty for defects terminates two years after the hand-over of goods to the consumer (in the case of buildings that term extends to five years).

With respect to warranty relating to services, nothing has changed following the Acts implementation: a trader (service provider) remains liable for non-performance or improper performance of the services under the general rules of Polish law, i.e. is liable for damage suffered by a recipient of services.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.