Consumer Protection Law Dr Anna Rachwał 2012/2013
3. PRE-CONTRACTUAL RELATIONSHIPS: UNFAIR COMMERCIAL PRACTICES
Legal Acts European Law: Polish Law: Purpose: Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market Polish Act of 23 August 2007 on Combating the Unfair Market Practices banning the acts, omissions, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers, which appreciably impair the consumer's ability to make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise.
Unfair Commercial Practice Behaviour, which in the contrary to the requirements of professional diligence materially distorts or is likely to materially distort the economic behavior with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers. Misleading: contains false information or omits the material information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to specified elements, incl. features of the trader, features of the product, price, and consumer rights. Misleading advertisment: any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor
Unfair Commercial Practice Behaviour, which in the contrary to the requirements of professional diligence materially distorts or is likely to materially distort the economic behavior with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers. Aggressive: in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence, significantly impairs or is likely to significantly impair the average consumer's freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise.
Enforcement: Directive Legal provisions under which persons or organizations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may take legal action against such unfair commercial practices and/or bring such unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings Member States shall lay down penalties for infringements of national provisions adopted in application of this Directive and shall take all necessary measures to ensure that these are enforced. Art. 3 par. 2: The Directive is without prejudice to contract law and, in particular, to the rules on the validity, formation or effect of a contract.
Enforcement: Polish Law Effectivness measures: Art. 12 par. 2 ot the Act on Combating Unfair Market Practices: Ombudsman, Ombudsman for Insurance Bearers, Community Ombudsman for Consumers and consumer organizations may sue traders (before the court) on cessation of the unfair practices. Art. 15, 16 of the Act on Combating unfair market practices Fines and freedom penalties for violation of the Act.
Enforcement: Polish Law Art. 12 of Act on Combating Unfair Market Practices: In case of unfair market practice consumer, whose interest has been endangered or violated may claim (before the court): 1) the cessation of that practice, (2) removing the effects of the practice, (3) making a statement of an appropriate contents and form, (4) damage repair according to the general terms, especially the contract to be declared null and void followed by the obligation to return all that has been received and by the obligation of the trader to reimburse the costs of purchasing the good, (5) an appropriate amount of money to be paid for a social purpose, especially aiming at protection of polish culture, national heritage or protection of consumers
Enforcement: Polish Law Defects in the declaration of intent: Art. 84 of the Civil Code [ERROR]: 1. In the case of an error as to the content of an act in law one can evade the legal effects of the declaration of intent. However, if the declaration of intent has been made to another person, the avoidance of its legal effects shall be admissible only if the error was caused by that person, even if he was not at fault, or if he was aware of the error or could have easily noticed it. This restriction shall not apply to gratuitous acts in law. 2. One may refer to an error only if it justifies the supposition that if the person making the declaration of intent would have had not acted under the influence of an error and have had judged the case reasonably he would not have made that declaration of intent (essential error)
Enforcement: Polish Law Defects in the declaration of intent: Art. 86 of the Civil Code [DECEIT]: 1. if the error was caused by the other party deceitfully the avoidance of the legal effects of the declaration of intent made under the influence of that error may also take place if the error was not essential or if it did not pertain to the contents of the act in law. 2. The deceit by the third party shall be deemed identical to the deceit of the party concerned if the latter was aware of the deceit and did not notify the other party about it or if the act in law was gratuitous. Art. 87 [THREAT] Any person who makes a declaration of intent under the influence of an unlawful threat made by the other party or a third party may avoid the legal effects of his declaration if it follows from the circumstances that he had reason to fear that he or another person was in serious danger with regard to person or property.
Enforcement: Polish Law Effects of the defects of the declaration of intent: Art. 88 of the Civil Code [DECEIT]: The aggreviated party may declare contract null and void (no court decision required) The Law on Unjustified Enrichment (Art. 405 414 of the Civil Code): Both parties has to return benefits gained from the cancelled contract; if it s impossible to return the benefit in kind, the value of it should be paid. Art. 414 of the Civil Code: The existence of the claim on unjustified enrichment does not preclude the claim on damage rapair.
Enforcement: Polish Law Damage repair: Art. 72 par. 2 of the Civil Code [unfair negotiations]: A party, who commences or carries out negotiations in breach of the principles of good faith, especially without intention to enter into the contract, shall repair any damages the other party suffered because he has counted on concluding the contract. Art. 415 of the Civil Code [tort liability, unlawfull faulty behavour]: Whoever by his fault causes a damage to another person shall be obliged to redress it. Art. 471 of the Civil Code [non- performance liability]: The debtor shall be obliged to redress the damage resulting from the non- performance or improper performance of an obligation unless non- performance of improper performance were due to circumstances for which the debtor is not liable.
Case Study An internet provider NETHOME Ltd. put an ad in an apartament building stating that he is offering fix connection for fix price of 60 zloty. He also visited the people living in the building informing them that their current internet provider would raise his prices and they would pay trice as much as now unless they switch to his services. Antoni entered the contract with NETHOME. After receiving the first bill he discovered that there is a transfer limit imposed, after its reaching the price is being calculated according to the transfer batches. Antoni up- and downloaded a lot of files. He compared the price with prices of his old internet provider and found out that he would have paid less to him. Can Antoni cancel the contract with NETHOME? Can he claim damages?