Due to the introduction of Directives 2019/770 on certain aspects of contracts for the supply of digital content and services (“DCD Directive”) and 2019/771 on certain aspects of contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC and repealing Directive 1999/44/EC on 20th of May 2019. (“SGD Directive”), the Polish legislator is obliged to incorporate the provisions of the aforementioned directives into the Polish legal order. In the current year, the Polish government has prepared 2 draft amendments to the Law on Consumer Rights and certain other laws. Accordingly:
- one of the drafts was presented by the Ministry of Justice and was submitted to the Sejm on the 29th of June this year. (print number 2425),
- the other by the Office of Competition and Consumer Protection and the Ministry of Development was received on the 12th of July (print number 2476).
Among other things, the newly-introduced regulations provide for the exclusion of the application of the Civil Code’s provisions on warranty in sales to consumers and the separate regulation of this matter in the Act of 30th of May 2014, on consumer rights. In this regard, the new provisions are intended to bring Polish regulations in line with the SGD.
Legislative chaos
It is worth mentioning that organizations representing entrepreneurs have expressed concern about the lack of so-called “legislative calm”, since in addition to the previously mentioned drafts already present in the Sejm, a third one has appeared; this time a government one, interfering with laws on sales contracts, regulations of online services, or rules of presentation and advertising of products. Reservations about its content come from the lawyers themselves, who point to a lack of coordination, a lack of cooperation in deliberating on the drafts, which are materially coherent.
What changes in the drafts are introduced by the DCD and SGD Directives?
The draft of the Ministry of Justice implements the DCD and SGD directives, and the legislator by virtue of their introduction envisages the following changes:
- modification of the rules of warranty and guarantee, in particular the exclusion of the application of the provisions of the Civil Code on warranty in sales to consumers (the replacement of defective goods will therefore be more difficult, but the purchase of software – easier).
- modification of the provisions on warranty and transferring them to the Law on Protection of Consumer Rights. This change provides for updating the bylaws and using appropriate references to their relevant acts.
In the case of the OCCP project, on the other hand, the main focus is on Directive 2019/2161 (“Omnibus Directive”), according to which it will gain in validity:
- the obligation to provide information on whether the person offering products on the platform has the status of an entrepreneur or not,
- the obligation to inform about the lowest price in the last updated 30 days before the planned reduction;
- the obligation to inform about the placement rules for products presented to the consumer as a result of the search;
- expanding the catalog of unfair market practices in all circumstances to include, among other things, the entrepreneur’s actions of: providing search results in response to a consumer’s Internet search without explicitly disclosing paid advertising.
Controversial vacatio legis
Another controversial issue is the short deadline for the entry into force of the planned Directives. Referring to the legislative mess outlined earlier, the lack of coordination in the deliberation of laws creates the risk of introducing mutually exclusive regulations and solutions. Based on Article 5 of the Draft of the Ministry of Justice and Article 10 of the Draft of the Office of Competition and Consumer Protection, the vacatio legis deadline is 14 days from the date of announcement. Moreover, the legislator states in the explanatory memorandum that the given timeframe is sufficient, as the deadline for the implementation of the EU directive into the national order has already been exceeded.
What remains alarming in this case is the issue of effectively informing the customer of a change in the contract, a price reduction within 30 days as indicated by the regulations though the Omnibus Directive. Therefore, in the case of vacatio legis, this issue may result in an inability to effectively inform the customer, which will lead to further ambiguities and lack of order in the operation of businesses. The solution seems to be to merge the two bills into one law and proceed with them together.
Soruces [PL]: https://www.prawo.pl/biznes/nowelizacja-prawa-ochrony-konsumentow-vacatio-legis,516396.html https://www.finanseicontrolling.pl/o-tym-sie-mowi/kolejne-zmiany-dla-branzy-e-commerce-nie-tylko-w-2022-roku-1 https://orka.sejm.gov.pl/Druki9ka.nsf/0/09EDF5F3C31EE7B9C12588770039AC4F/%24File/2425.pdf https://orka.sejm.gov.pl/Druki9ka.nsf/0/E4E45216A03DCE28C1258885003291FC/%24File/2476.pdf Dyrektywa Parlamentu Europejskiego i Rady (UE) 2019/2161 z dnia 27 listopada 2019 r. zmieniająca dyrektywę Rady 93/13/EWG i dyrektywy Parlamentu Europejskiego i Rady 98/6/WE, 2005/29/WE oraz 2011/83/UE w odniesieniu do lepszego egzekwowania i unowocześnienia unijnych przepisów dotyczących ochrony konsumenta (Dz. U. UE. L. z 2019 r. Nr 328, str. 7). https://sip.lex.pl/#/act/69264444 https://www.parp.gov.pl/component/content/article/76083:implementacja-tzw-dyrektywy-omnibus-zmiany-w-prawie-konsumenckim