From January 1, 2021, restrictions on the use of abusive clauses in template contracts, associated normally with B2C relations, will also apply to certain B2B relations.

This, however, is not the only change regarding consumer protection introduced by the Act of July 31, 2019 on amending of certain acts in order to reduce the regulatory burden. Some B2B customers will also be covered by consumer protection within the scope of the statutory warranty for defects and of the right of withdrawal from a distance or off-premises contract. Below we also discuss a separate draft amendment of the Act on competition and consumer protection (“uokk”), introducing new tools for detecting infringements of consumer rights and summarize the summer case law of the CJEU regarding information obligations about ADR entities and the ODR platform.

Who gains from the extended consumer protection?

Thus far, in B2C and B2B trading practice it has been widely accepted that issuing an invoice for goods or services for a recipient who is a business owner, is a marker of professional trading, so consumer regulations do not apply. The upcoming changes will extend certain consumer protection regulations to natural persons-entrepreneurs concluding contracts with other firms, which, although directly relate to their business or professional activities, are not of a "professional nature".

How to determine if a contract is of a professional nature?

If the purchase of an item is related to the buyer’s activity indicated in Central Registration and Information on Business – CEIDG (e.g. a locksmith buys a chisel), the professional nature of the contract should be assumed. Otherwise (e.g. a locksmith buys a desk), the buyer is covered by limited consumer protection. As it can be easily guessed, sometimes the analysis may be more difficult, especially, as the Act suggests that the non-professional nature of the contract may also result from premises other than the buyer's PKD (classification of business activities in Poland) description (e.g. from the description of the business on the entrepreneur’s website). The justification of the act does not help either as it additionally suggests that the frequency of activities is important in determining whether the purchase is of a professional nature. Notably, under current law, a customer-entrepreneur should already be treated as a consumer if the contract is not directly related to his/her business activity (e.g. a locksmith buys a wig).

What kind of protection for natural persons-entrepreneurs?

Natural persons-entrepreneurs will have protection regarding (i) abusive clauses, (ii) statutory warranty for defects and seller's claims in connection with the defectiveness of the item sold and (iii) right of withdrawal from a distance or off-premises contract. However, they will not be covered by the institutional protection exercised by UOKiK (Polish competition authority) in particular. Thus, any possible infringement of their consumer rights will not be sanctioned under uokk.

What changes should firms consider when entering into B2B contracts?

Firms conducting mass-scale operations based on terms and conditions and other template contracts (e.g. e-commerce sector, financial services, telecommunication services, etc.) will endure the changes the most. In practice, they will have to distinguish not only B2C and B2B transactions, but also a new group of customers: natural persons-entrepreneurs performing non-professional activities. The seller will have to take additional measures to establish the status of the customer, which may require an introduction of further forms and representations in the systems. Moreover, as the new group of customers has fewer rights than consumers, copying the B2C terms and conditions to be applicable to them, although permissible, may not be in the seller's interests. It may therefore be necessary to prepare new procedures and new terms and conditions dedicated to the group.

Draft amendment to the Act on competition and consumer protection: new tools to detect consumer rights infringements

Planned changes to the scope of powers of the UOKiK Chairperson, this time concerning consumer protection in the strict sense, are currently at the inter-ministerial consultations stage. The amendment will implement into the Polish legal system Regulation (EU) 2017/2394 on cooperation between national authorities responsible for the enforcement of consumer protection laws.

Pursuant to the new provisions, the UOKiK Chairperson will:

• be able to order an undertaking to place in an online interface (website, application, etc.) a warning to consumers about an infringement of consumer rights, remove content from the interface that infringes consumer rights, restrict access to or disable the interface, or even delete the internet domain – even as early as in the course of proceedings, by means of a so-called interim decision;
• have tools enabling enforcement of the above-mentioned orders by addressing third parties (e.g. hosting service providers) for this purpose;
• keep a register of deleted domains, while the telecommunication companies will be legally obliged to block access to the domains entered into the register and to redirect connections to such domains to the UOKiK website.

The UOKiK Chairperson will also have extended powers to act as a mystery shopper. Currently, in the course of a controlled purchase, the UOKiK inspector can only undertake actions aimed at purchasing goods. The planned amendment will enable the inspector to purchase goods and then observe, examine, disassemble and test them. Importantly, the amendment provides for the possibility of making incognito purchases and recording the course of the controlled purchase (this, however, will require a prior consent of SOKiK (Polish Court of Competition and Consumer Protection)). The undertaking subject to a controlled purchase will have the right to submit a complaint to SOKiK about the manner in which the activities were conducted.

The amendment will also enable UOKiK to conduct dawn raids in consumer protection proceedings (both regarding abusive clauses and infringement of collective consumer interests).

It is worth looking at terms and conditions also with regard to information obligations about ADR entities and the ODR platform

Over the summer, the CJEU issued a judgment regarding the information obligation of undertakings to provide in their terms and conditions accessible on their websites information about entities offering alternative dispute resolution procedures (judgment of June 25, 2020, in case C-380/19).

The CJEU stated that the undertaking that provides on its website the general terms and conditions of contracts, even if it does not conclude contracts with consumers via that website, must provide in the general terms and conditions information about ADR entities relevant for this undertaking. The Court emphasized that it is not sufficient for the undertaking to provide that information in other documents or tabs of the website. The judgment dispels doubts as to whether it is sufficient for the above-mentioned information to be provided on the undertaking’s website, but not necessarily directly in the terms and conditions.

These CJEU conclusions may also translate into providing in terms and conditions of a link to the ODR platform of the European Commission by undertakings concluding online sales or service contracts.