Review of form contracts, “controlled purchases,” and other new competencies of UOKiK in 2016
Below we present information about selected changes introduced by the amendment to the Competition and Consumer Protection Act of 16 February 2007 which entered into force on 17 April 2016.
As of 17 April 2016, abstract review of form contracts, i.e. examination to determine whether form contracts contain provisions establishing rights and obligations of consumers in a manner contrary to fair practice or grossly infringing consumers’ interests, now lies within the competence of Poland’s competition authority, the president of the Office of Competition and Consumer Protection (UOKiK). Previously such reviews were conducted by the Court of Competition and Consumer Protection (SOKiK).
The president of UOKiK will rule on the impermissibility of form contract provisions by issuance of an administrative decision. The proceedings will be commenced at the initiative of the competition authority or pursuant to a complaint filed by consumers, consumer advocates, the Insurance Ombudsman, or consumer organizations. If it is found that a business is using a form contract with an impermissible clauses, the president of UOKiK will be empowered to impose a fine of up 10% of the turnover generated by the business in the prior financial year.
In the decision holding a form contract clause to be impermissible, the president of UOKiK can also order the business to (1) notify consumers who are parties to contracts based on the form in question that provisions of the form have been held to be impermissible, in the manner specified in the decision, (2) publish one or more statements in the form and content specified in the decision, and (3) publish the decision in whole or part, in a specified form and content, at its own cost.
The president of UOKiK has also gained the right to express an “essential position” in cases pending before the courts on whether a given contractual provision infringes the interests of consumers. These actions may be taken by the competition authority at its own initiative or at the request of the court.
Now, the competition authority may also conduct inspections in the form of a “controlled purchase”, when a person designated by the president of UOKiK can take steps toward acquiring goods or services. Such measures require the approval of the court (SOKiK).
Decisions by the president of UOKiK holding form contract clauses to be impermissible will be published at the UOKiK website, together with a justification (except for passages containing trade secrets or other information protected under other regulations). The existing register of prohibited clauses will continue to function under the prior rules until 2026.
Moreover, the amendment changes the procedure for cases involving practices infringing the collective interests of consumers. The president of UOKiK can now issue interim decisions ordering a business to cease and desist practices while the proceeding is underway, if its actions could cause a serious and hard-to-remedy threat to the collective interests of consumers. Such decisions will be immediately enforceable, and enforcement will not be stayed even if the business appeals to SOKiK. The amendment also recognizes “mis-selling” as a new practice infringing the collective interests of consumers, consisting of proposing to consumers the acquisition of financial services that are not appropriate to the consumers’ needs, based on information available to the business concerning the characteristics of the consumers, or proposing the acquisition of such services in a manner inappropriate to the nature of the services.
If you require more detailed information about this topic, please contact advocate Michał Chodkowski (e-mail: firstname.lastname@example.org).