Amendments to the consumer protection law from 1 January 2023

On 1 January 2023, amendments to consumer protection regulations related to the implementation of the Digital Content Directive, the Sale of Goods Directive and the Omnibus Directive into the Polish legal system came into force. These directives were implemented by: (i) the Act amending the Consumer Rights Act and certain other acts of 1 December 2022 (Journal of Laws 2022, item 2581); and (ii) the Act amending the Consumer Rights Act, the Civil Code and the Private International Law Act of 4 November 2022 (Journal of Laws 2022, item 2337).

In essence, these amendments:

• expand consumer rights and protections, including by increasing the transparency of offers for the consumer;
• introduce specific regulations related to the offering of digital content and digital services to consumers;
• make the rules regarding cooperation between traders and consumers more flexible; and
• concentrate consumer protection provisions in the Consumer Rights Act.

Below are the most relevant changes that came into force on 1 January 2023.

New information obligations:

Traders have additional information obligations, including in particular the obligation to inform their consumers about:

• personalised price adjustments based on automated decision-making, if applied by the trader;
• the lowest price applied by the trader during a period of time no less than 30 days prior to the application of the price reduction;
• the steps in regard to confirming that consumer reviews and endorsements posted about a given product originate from actual consumers; and
• whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the relevant products.

In addition, providers of online trading platforms have to inform consumers about:

• whether or not third parties offering relevant goods, services or digital content through an online marketplace are traders;
• the division of obligations (relating to contracts concluded by a consumer on the online marketplace) between third parties offering relevant goods, services or digital content and the provider of the online marketplace; and
• the main parameters determining the ranking of products presented to consumers as a result of relevant search queries and the relative importance of these parameters compared to other parameters (this does not apply to search engine providers).

Statutory warranty

One of the most significant amendments concerns a consumer’s statutory warranty. Regulations in this area were transferred from the Civil Code to the Consumer Rights Act and clarified. The general warranty regulations, however, which apply to all of the situations not covered by the provisions of the Consumer Rights Act, remain in the Civil Code. The most significant changes include:

• clarifying situations that may be construed as constituting a lack of conformity of goods with a contract, including pre-contractual declarations by the consumer and the trader;
• extensions of the statutory warranty to contracts involving a commitment to transfer ownership, and thus not only pertaining to sales contracts;
• extending a warranty liability period beyond the previous two-year period if the time limit of the merchandise’s fitness for use, as stated by the trader, is longer than two years;
• extending the presumption that if the non-conformity of goods with a contract becomes apparent before the expiry of two years from the delivery of the goods, it is presumed that the non-conformity was at the moment of entering into the contact (previously it was one year); and
• in respect of goods with digital elements, traders are liable for the non-conformity with a contract of digital content or digital services provided on a continuing basis that occurs or becomes apparent at the time at which, according to the relevant contract, such services or content were to be provided (no less than two years from the delivery of goods with digital elements).

The hierarchy of consumer rights in the cases of the non-conformity of goods with a contract has been clarified. In the first place, a consumer has the right to require that the relevant goods be brought back into conformity with the relevant contract by repair or replacement. Only upon lack of fulfilment or unprofitability of such demand can the relevant consumer exercise his or her further rights, i.e. to demand a price reduction or to withdraw from the relevant contract. The above mentioned hierarchy of consumer rights, however, is not rigid, and the provisions are flexible enough to take into account possible situations in which  a price reduction or withdrawal from a relevant agreement can be demanded immediately.

Digital content and digital services

The offering of digital content and digital services is regulated extensively and separately from the offering of goods, including the relevant information obligations of the trader, warranty rules, and the time of delivery of content and services.

These regulations are largely similar to those covering the provision of goods and services, taking into account the specificities of digital content and digital services, including:

• the timeframe in which the trader supplies digital content and services;
• issues concerning updates necessary for digital content and services to be in conformity with a contract;
• wider consumer rights in regard to withdrawal from contracts for services for any lack of conformity of the digital content and services;
• the rules on the use of content produced or supplied by the consumer to the trader, following withdrawal from the contract; and
• the issue of a trader’s modification of digital content and services, including related consumer protections.

New categories of unfair commercial practices

The Black List of Unfair Commercial Practices in the Act on Combating Unfair Commercial Practices of 23 August 2007 currently includes practices consisting of the following:

• traders who give access to consumers’ opinions about products, specifically to claims that such opinions about the products have been posted by consumers who have actually used or purchased the products, even though the relevant trader has not taken reasonable and proportionate steps to verify that the opinions originate from the relevant consumers;
• posting or causing another person to submit or distort fake consumer reviews and endorsements in order to promote products;
• placing goods on the market in one or more Member States as identical goods placed on the market in other Member States, where such goods differ materially in composition or properties, unless there are legitimate and objective grounds for doing so; and
• the resale to consumers of tickets to cultural or sports events if a relevant trader has acquired them by using software that allows the trader to bypass technical means or to exceed the technical limits imposed by the primary seller in order to circumvent restrictions on the number of tickets a person can buy or other rules applicable to the purchase of such tickets.

Contracts concluded during a trip, a product demonstration (party plan events) or an unsolicited visit by a trader to a consumer’s home or habitual residence

The new provisions strengthen the protection of consumers entering into contracts in the above situations through:

• the extension of the right-of-withdrawal period (to 30 days);
• a prohibition on accepting payment before the end of the withdrawal period (sanctioned by a fine pursuant to the Misdemeanours Code);
• the exclusion of the application of certain exceptions to the right of withdrawal; and
• a prohibition on entering into contracts relating to financial services during a show or a trip.

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