Amendment to the Consumer Rights Act

Poland must implement two EU directives by 1 July 2021. The new regulations must become effective by 1 January 2022. This applies to the digital content directive (DCD) and the sale of goods directive (SGD). The purpose of both legal acts is to maximise the harmonisation of consumer protection regulations, which are to provide for the same level of protection (neither smaller nor greater) in each member state.

In accordance with a rationale attached to the draft act, consumer protection regulations will not be amended through amendments in the Civil Code because this would result in an excessive divergence of terms in the regulations on a sales contract. Therefore, the regulations will be implemented through an amendment to the Consumer Rights Act, which is partially made of regulations adapting EU directives to the Polish legal order.

1. Amendments to the Consumer Rights Act – SGD

The implementation of the sale of goods directive is connected with far-reaching modifications in consumer protection regulations. The amended regulations will apply to consumer agreements providing for the transfer of property rights to goods (Art. 43a). This only applies to agreements entered into after the effective date of the act.

Replacement of statutory warranty for physical and legal defects with non-conformity of goods with an agreement

The entrepreneur’s liability for a product sold will take the form of liability for conformity of goods with an agreement (Art. 43b). This means conformity of: description, type, quantity, quality and fitness for a particular purpose. In addition, goods that are in conformity with the agreement:

• are fit for a particular purpose, without prejudice to applicable regulations and technical standards;
• thanks to a quantity, durability and safety of the goods, correspond the customer’s reasonable expectations;
• are delivered together with accessories and instructions that a consumer may reasonably expect;
• are of the same quality as the sample or design made available by the entrepreneur to the consumer before the agreement date and correspond to the description of such a sample or design.

The above also results in the implementation of the definition of:

• “durability” in the glossary of the act, which means: the capacity of goods to maintain their function sand properties during ordinary use;
• “goods”, which are defined as: movables, as well as water, gas and electricity if offered for sale at the defined volume or quantity, except for things that are used solely as a digital content storage medium.

The entrepreneur’s liability towards the consumer for non-conformity is in force for two years of the release of the goods or, in the case of used goods, the parties may shorten that period, however by no more than a year (Art. 43b.5).

Consumer rights.

A consumer that bought goods that are not in conformity with the agreement may request that the goods are replaced or repaired (Art. 43d.1). Only if the replacement or repair turns out to be connected with excessive costs or to be impossible, the consumer may obtain a refund of a part of the price paid or withdraw from the agreement (Art. 43e.1). The consumer has similar rights if the goods have been already repaired or, given the level of non-conformity, it is reasonable to reduce the price or withdraw from the agreement with immediate effect.

The entrepreneur is obliged to repair or replace the goods within a reasonable period free of charge and without excessive inconvenience for the customer (Art. 43d.4). The entrepreneur will also pay the cost of return of the goods by the consumer (Art. 43d.5). A part of the price paid should be refunded immediately, however no later than within 14 days of the receipt of the consumer’s statement (Art. 43e.3).

The consumer cannot withdraw from the agreement if a non-conformity is immaterial. The moment the withdrawal becomes effective, the consumer will send the goods back at the entrepreneur’s cost.

2. Amendments to the Consumer Rights Act – DCD

New definitions

The digital content directive provides for the provision of digital services and digital contents. Both terms are defined in the draft:

• a digital service is a service that allows the consumer to:

– create, process, store or access digital data;

– share digital data that have been sent or created by a consumer or other service users;

– take advantage of any other interaction with data.

• goods containing digital elements are goods that contain a digital content or a digital service or goods that are connected with such a content or service if the lack of the digital content or service made the correct operation of the goods impossible. 

The draft also defines a digital content delivery or digital service provision agreement as an agreement under which the entrepreneur is obliged to provide the consumer with a digital content or a digital service, including those prepared in accordance with the consumer’s instructions, and the consumer is obliged to pay the price or disclose their personal data.

Principles for the provision of digital services and digital contents

Unless the parties agree otherwise, the digital content or service should be provided to the consumer immediately (Art. 43h.1).     Otherwise, the consumer has the right to withdraw from the agreement. The consumer has also such a right if, given the entrepreneur’s statement or the existing circumstances, the entrepreneur is likely not to provide its services or as a result of non-performance the service is useless to the consumer because of a contractual deadline or the existing circumstances (Art. 43h.4).  

When buying the digital content or service, the consumer has the right to expect that the entrepreneur’s service will meet the goal of the consumer’s purchase. This is an equivalent of guidelines stemming from Art. 43b.1 and 43b.2, which apply to the quality, quantity, type and description of services, as well as conformity of goods (digital services or contents) with the agreement (Art. 43i.1).    

Throughout the term of the agreement, the entrepreneur is obliged to inform the consumer about service updates (Art. 43i.2). If the consumer fails to install an update, the entrepreneur is exempted from its liability for the accurate operation of the digital service or content.

Entrepreneur’s liability

The entrepreneur is responsible for any non-conformity that exists as at the agreement date and within two years of the delivery of digital contents or the provision of digital services (Art. 43j.1). The liability is continuous and subject to a presumption that non-conformity exists during the provision of services or contents and is discovered during the term of the agreement.

Similarly, to the sale of goods directive, at first the consumer has the right to request that the digital service or content is provided in conformity with the agreement (Art. 43k.1). Only if the recovery of such a conformity turns out impossible or too expensive or the entrepreneur refuses to make the repair or the non-conformity is significant, the consumer may withdraw from the agreement (Art. 43k.3).  

The entrepreneur must not charge the consumer for the period in which the content or service is not in conformity with the agreement, even if the consumer has actually used that content or service (Art. 43l.4).  

The entrepreneur may change the digital content or digital service which is not necessary to maintain conformity solely if the agreement provides for such a change and exclusively for reasons set out in the agreement. The entrepreneur must not, however, change the digital content or digital service provided on a one-off basis (Art. 43m.1). The consumer must not be charged for any cost related to the changes (Art. 43m.2) and the entrepreneur must inform the consumer about the changes in a clear and comprehensible way. If the change is significant and negative at the same time, the consumer, subject to a prior notice from the entrepreneur, will be able to terminate the agreement within 30 days of the change or the notice of change (Art. 43n.1 and 43n.2).

Data produced as part of the digital service or content

The digital directive intends to protect privacy. The entrepreneur will be able to use solely the data that the consumer creates in connection with the use of the digital content or service on their own or together with other consumers, provided that such data are related to the purpose of the agreement or are used solely for the purpose connected with the service or content and if the data created by the consumer have been connected with other data and cannot be disconnected without undue difficulty (Art. 43l.1).      

The consumer’s right to request that the entrepreneur must provide the data created by the consumer during the use of the service or content free of charge is a novelty (Art. 43l.2).   This does not apply to personal data or data concerning solely the consumer’s activity which are only useful in connection with the digital content or service or which have been combined by the entrepreneur with other data and cannot be disconnected without undue difficulty.

3. Summary

The amendment also provides for changes in the Civil Code, which consist in overruling Art. 556⁴, which has been just enforced and which entitles entrepreneurs to use a consumer status in agreements that do not apply to their business activity. In addition, principles for exempting a seller of things whose kind is specified or which are to be produced in future from liability will be modified (Art. 557 § 2 second sentence) and Art. 560 § 2, 561¹ § 3, 568 § 1 and the whole Chapter II of Title XI in Book III will be deleted as useless.

The draft meets the requirements of the DCD and SGD. The harmonisation of regulations in the whole European Union is a response to an increasing number of transactions between consumers and entrepreneurs from various member states and a vibrant electronic trade.

Adam Madejski, attorney-at-law