Jurisprudence

The Supreme Administrative Court underlined that a daily case list displayed on the courtroom door is publically available at court premises, the court being, however, also an  administrator of the natural persons’ personal data published in the daily case list and obliged to observe the restrictions imposed by the Act on Access to the Public Information.

In accordance with Article 5 (2) of the said Act, the right to public information is restricted on the grounds of a natural person’s privacy (a daily case list contains personal data) or business secret.

In this context, the Supreme Administrative Court stated that any information related to an entrepreneur’s participation in a court procedure constitutes a business secret as defined by Article 11 (1) of the Act of 16 April 1993 on Combating Unfair Competition (unified text, Dz.U. (Journal of Laws) of 2003 No. 153, item 1503, as amended).

In the opinion of the Supreme Administrative Court, publishing information on pending procedures may expose an entrepreneur’s interests by, among others, undermining their reliability, lowering their credit rating, bargaining power, which may prejudice execution of agreements on favourable conditions. On the one hand, the legislator established tort liability under Article 11 (1) of the Act on Combating Unfair Competition for disclosing or using someone else’s information being a business secret, and on the other, restricted the disclosure of the information under Article 5 (2) of the Act of 6 September 2001 on Access to the Public Information (Dz.U. (Journal of Laws)  No. 112, item 1198, as amended). The combination of the aforementioned provisions of two separate Acts makes the legal system aimed to protect a business secret consistent.

In the opinion of the Appeals Court in Białystok, article 12 section 1 of the Act on combating unfair competition [ACUC] forbids to encourage anyone not to perform employee duties or perform them in an improper manner, but unlike article 12 section 2 of the ACUC the provision does not forbid to encourage anyone to give notice to terminate respective agreements. Thus, the Court did not share the view expressed in the judgment of the Appeals Court in Cracow of 15 November 2012, file ref No. IACa 1024/12, that encouraging an employee to terminate a contract of employment does not meet the criteria of a tort.

From the said ruling it appears that in appraising this kind of behaviour from the legal point of view autonomous will of an employee is important who should not act in the circumstances involving error or deceit. The Court did not deny that in certain cases a transfer of employees of a competing entrepreneur may constitute an act of unfair competition. However, it should only apply to those cases where a competitor uses unfair methods, such as fraud, deceit or misleading or when such entrepreneur intends to achieve an unfair goal.

The plaintiff pointed also to the actions of the defendant suggesting the employees to go on sick leave in large numbers or fail to go to work without justified cause. These charges proved true in relation to at least some of the employees who during the sick leave took work for the defendant on his express order.

Such conduct should be qualified as encouragement not to perform employee duties which is aimed at bringing benefits to the encouraging party or being harmful to another entrepreneur and as such should not be protected. Just in these proceedings the claim of the plaintiff, aimed at stopping violations, was pointless because the staff of both entrepreneurs was stabilized already at the date when an action was brought and the defendant did not continue further actions of this kind. Also, the Court ruled out a fear that the defendant will continue these in the future.

According to the claimant, the actions of insurance company constitute the act of unfair competition specified in article 15 section 1 clause 4 of the Act on Combating Unfair Competition because such actions, in particular different treatment of some clients, prevent other entrepreneurs from accessing the market.

The action was dismissed, because the prerequisites constituting the act of unfair competition specified in article in article 15 section 1 clause 4 of the Act on Combating Unfair Competition, were not met. These prerequisites have to be always in connection with article 3 clause 1 of the Act of Combating Unfair Competition. Preventing other entrepreneurs from accessing the market is the act of unfair competition, but only when it is against the law or good customs and jeopardizes the interest of another entrepreneur or customer.

The Court of Appeal decided that the sole existence of interest in pursuing protection against the acts of unfair competition is not enough to effectively pursue such protection. It is also necessary to prove that the interest has been infringed or at least jeopardized.

The threat of infringement of the interest may not be hypothetical, but it must be specified in the scope of occurrence risk of such infringement and of person responsible for it. Generally, the set of circumstances which increases the threat of damage has to be proven. It is usually impossible to prove the threat of infringement so precise as the infringement itself, therefore it is enough to present facts and evidence to prove the violation of competition rules and a court shall assess whether the risk of infringement has occurred.

In the case, isolated refusal of granting insurance protection could not decisively affect the position of the claimant on the insurance market and in the opinion of customers.

X kept in touch with representatives of the defendant, a competing company, who intended to start production of the same devices. During discussions with the deputy chairman of the board of the defendant, X, like some other employees of the defendant, was being persuaded to change his place of employment. X, planning to go over to the company sued, was gathering information about software used to produce devices of the complainant, was asking the designer of the device about the place on the computer disk where the designs were stored. Finally, during an inspection it was uncovered that in his workplace X had been copying technical documentation onto an additional disk built into his computer. X was dismissed without notice, whereupon he took up a job with the company sued where an Electronics Department was set up and recruitment of employees was announced. Soon, the party sued started the production of devices of the same type as those of the complainant.

During the proceedings, it was found that the party sued had committed an act of unfair competition defined in article 11 section 4 of the Act on combating unfair competition.

The Supreme Court examining the cassation appeal of the defendant concluded that a company secret concerning the production of a specific device may be and usually is made up of knowledge and experience which cover a whole set of elements creating a technological and production process, including constructional solutions of a device, technical documentation, method of production, materials used etc. In such case, the company secret is the whole production process and the fact that one of its elements, e.g. structure of such device, is easily identifiable on the basis of information generally available to persons who usually deal with it, does not deprive an entrepreneur of the possibility to make a secret of the whole process. Because the process like this is composed of knowledge and experience as well as resources and outlays used which allowed a particular entrepreneur to use generally available information about the structure of the device and to create and prepare, already on the basis of his own trials and experiments, technical documentation, specific method of production, technological line and materials to be used.

An important factor having an effect on the decision made by the Court was the fact that without the use of information representing a company secret of the complainant the defendant, if it had wanted to independently prepare and start production process, it would have needed for this at least several months, that is to say considerably more time and financial resources and in addition it is not obvious whether without the information provided by the former employee of the complainant the defendant would have started production at all.

In the opinion of the Tribunal, the aforementioned regulation is “a solution useful for achievement of the objective set by an employer and corresponds to the needs and structure of the market where mega stores predominate“.

Indeed, the challenged regulation restricts freedom of business activity carried out by an entrepreneur taking goods in for sale, but it is necessary to protect freedom of business activity carried out by an entrepreneur delivering goods for sale because his access to the market or position in the market is strictly dependent on activities of business partners. In addition, article 15 section 1 subsection 4 of the Act is to ensure proper application of the principle of freedom of contracts laid down in article 3531 of the Civil Code.

The Tribunal noted that the regulation does not absolutely prohibit the entrepreneurs who take goods in for sale from charging fees. In particular, it allows contracts to be concluded where one of the parties will undertake to pay a fixed amount of money in exchange for services consisting in advertising or broadly defined transport, storage or display of goods.

In accordance with the established interpretation of article 15 section 1 subsection 4 of the Act not every fee charged by an entrepreneur taking goods in for sale will represent an act of unfair competition. Each time, circumstances of a given case should be examined, and particularly equivalency of the fee charged and mutual performance stipulated in a contract in exchange for the fee charged.

Furthermore, assessing proportionality of the regulation, the Tribunal noted that ascertainment by a court of violation of the challenged regulation does not result in invalidity of a contract but refers to those provisions thereof which stipulate unlawful “fees for taking goods in for sale”.

The plaintiff, distributor of clothing, demanded from the sued hypermarket network, under article 18 section 3 clause 4 of the ACUC, that the latter give up the gains groundlessly obtained on account of remunerations paid for services which the sued company had not provided and which had been fees, other than a trade margin, for accepting goods for sale.

The Supreme Court ruled that fees on account of centralized payment, logistic services and cash bonus – provided for in trade agreements between the parties – had been reserved for the defendant without being tied with equivalent benefits for the plaintiff. The remuneration collected by the defendant in connection with these contractual provisions was an oblique fee for the goods of the plaintiff to be passed for sale, and so activity of the defendant was an act of unfair competition provided for in article 15 section 1 clause 5 of the ACUC.

An obligation to pay a cash bonus under an agreement concluded between the parties was made conditional on achievement of a very low, as compared to the value of transactions between the parties, level of turnover of goods. Under the agreement, the plaintiff was obligated to pay a cash bonus as early as the defendant reaches the level of sales of PLN 10,000. The obligation to pay the bonus was a condition for establishing and continuing cooperation, was not a subject of negotiations and was imposed on the plaintiff by the defendant. The above arguments were a decisive factor, in the opinion of the Supreme Court, in recognition of the agreed cash bonus as a benefit for introduction of the defendant’s goods into the commercial network of the defendant, and thus meeting the conditions of an act of unfair competition under article 15 section 1 clause 4 of the ACUC.

The Supreme Court pointed out that pursuant to article 18 section 4 of the ACUC, if an act of unfair competition is committed, the entrepreneur whose interest is threatened or jeopardized may demand that a defendant make a single or repeated statement with a suitable content and in suitable form.

In the opinion of the Supreme Court, the above provision does not exclude a plaintiff’s demand that the defendant who committed an act of unfair competition, instead of making a statement with a content determined by the plaintiff, containing as an example apology to the plaintiff or an expression of regret because of an act of unfair competition committed, publish, at own expense, the content of court judgment deciding the dispute between the parties.

The claim provided for in article 18 section 1 clause 3 of the ACUC is to play a compensatory and also educational and preventive role. In addition, a claim for publication of a judgment is of great importance to an entrepreneur whose rights have been infringed as a result of an act of unfair competition for it makes it possible to inform the public opinion (customers) about infringement of rights and interests of the aggrieved and about the extent of sanctions used against a perpetrator.

The court of first instance pleaded no defence but as a result of an appeal lodged by the sued bank the Appeals Court found that the judgment declaring an identical clause unlawful had already been entered in the register of unlawful clauses and as such had an extended legal validity, and therefore is effective towards third parties. In this connection, the plaintiffs have no legal interest in demanding that the questioned contractual provisions be declared unlawful.

The above view was not shared by the Supreme Court who emphasized that abstract control of contractual provisions is aimed at eliminating from legal transactions certain patterns of provisions and not provisions of agreements. However, the lawfulness of these being used in a specific agreement may still be examined as a matter of incidental control.

The Supreme Court has recognized that the extended legal validity of a judgment admitting a claim for declaring provisions of a pattern agreement unlawful does not exclude the possibility of an action being brought by the same or other plaintiff against another entrepreneur who not being party to the proceedings where judgment is passed uses the same or similar provisions entered in the register of unlawful clauses.

The Supreme Court has also noted that the opposite interpretation raises serious doubts as to conformity with the Constitution of the Republic of Poland in respect of the right of hearing and defence as well as the right to a fair trial.

In the opinion of EUCJ, it is a national court’s responsibility to assess whether a specific contractual provision refers to the main subject of the agreement while it should use a restrictive interpretation and limit itself to such finding only when the condition questioned defines the basic performance under a given agreement. However, simultaneously the Court stated that in the case in question the provision is limited to fixing the rate of exchange between the Hungarian forint and the Swiss franc in order to calculate repayments of the credit, not providing for the creditor doing a service of currency exchange.

EUCJ also emphasized that even provisions defining the main subject of an agreement may be assessed in respect of their possibly unfair nature, if these have not been expressed unequivocally and understandably. A credit agreement should clearly show the reasons and specific character of the mechanism for converting foreign currency. Because the consumers who take out a credit in foreign currency must have an opportunity to estimate economic consequences following from the use at credit repayment of the exchange rate other than the one used to calculate the amount of credit when it is made available.

The Court referred also to the right of national courts to replace, if necessary, an unlawful clause with a suitable provision of the national law of a dispositional nature. It is possible only when deletion of an unlawful clause would lead to inability to fulfil an agreement. Because if the court had to invalidate the agreement, it would result in the outstanding credit amount becoming immediately due and payable which would exceed the means of a consumer. As a consequence, the sanction of contract nullity would not have penalizing and deterrent effect on the entrepreneur using an unlawful model of agreement, but would be a burden for the consumer.

Adoption of such a solution is justifiable where it is necessary to create a balance between the parties while simultaneously the agreement continues to be valid.

Commentary:

The above judgment of the EUCJ allows for indexation clauses involved in mortgage credits granted to consumers to be questioned. However, the Court gives national courts the freedom of assessment if a provision concerning conversion of credit repayments according the exchange rate of a foreign currency has the nature of principal performance. Simultaneously it notes that even if a provision is regarded as defining the basic performance of the parties it is possible to question it in respect of fairness in relations with consumers if it does not meet the criterion of explicitness.

It should be noted that Polish courts recognize that clauses concerning the way of converting a credit amount and individual repayments according to the exchange rate fixed by the bank do not apply to the principle performance of the parties (cf e.g. judgment of the Court of Competition and Consumer Protection of 14 December 2010, file ref XVII AmC 426/09).

In principle, the effect of a given provision being declared unlawful has been described in auricle 3851 of the Civil Code which provides that such a provision is not binding on a consumer, and the agreement is otherwise valid. An unlawful provision should be deleted from a particular agreement and the agreement fulfilled in accordance with its contents after the said provision is deleted.

In case defective indexation clauses are deleted, it should be assumed that the credit has been granted in Polish zlotys, and a surplus repaid by borrowers according to the repayment schedule in CHF should be refunded by the bank as undue performance.

In the claim for stopping execution of the bank enforcement title, the plaintiff questioned, inter alia, the amount of claim asserted by the bank, accusing the bank of using unlawful contractual provisions concerning the way of converting the credit amount as well as subsequent capital and interest payments.

The credit agreement contained a clause which had already been entered in the register of unlawful clauses by virtue of a judgment of the Court of Competition and Consumer Protection issued in the case file ref XVII AmC 1531/09. The amount of credit granted in Polish zlotys was converted into Swiss francs according to the rate from the bank’s exchange rate table of the date and hour when the credit was made available. Each installment of the credit was paid after being converted according to the selling rate of Swiss francs from the bank’s exchange rate table applicable on the repayment date at 14:50.

The Court concluded that in this way the bank granted itself the right to unilaterally regulate the amount of installments of credit indexed to the Swiss franc exchange rate by fixing the selling rate of this currency in its exchange rate tables. At the same time, the abovementioned right was not subject to any formal restrictions because the criteria for shaping the exchange rate had not been stipulated in the agreement.

Therefore thanks to the provisions questioned, the bank provided itself with the possibility of obtaining financial benefit representing additional cost of credit for the borrower. Because the level of the selling rate of Swiss franc from the exchange rate table could be freely shaped by the bank, and the consumer could not predict it. For this reason, the clause questioned was declared to be against decency which requires that the cost involved in concluding the agreement incurred by the consumer be predictable.

Therefore, the Court concluded that the borrower was not bound by the provisions questioned which, however, did not affect validity of other contractual provisions. The way of converting the credit amount and subsequent installments was challenged which meant that the warrant of execution had been given to the enforcement title from which the amount appeared being other than in case the repayments would be calculated in accordance with the non-abusive provisions.

Incidentally, the Court touched on an important problem concerning calculation of the credit already repaid, i.e. whether the amounts paid to the bank in zlotys should be directly recognized against credit installments or the installments denominated in Swiss francs in the credit repayment schedule should be converted according to the average exchange rate of Swiss franc published by NBP on the repayment date. Although in this case it was not necessary to solve this problem, the Court noted that the punitive nature of regulations concerning unlawful contractual clauses did not allow to replace abusive provisions with other analogous solutions (e.g. by introducing in an agreement the exchange rate published by NBP instead of the rate from a bank’s exchange rate table).

An action against a portal administrator was brought by the owner of a hotel which was assessed by a user as follows: “Für 37,50 € pro Nacht und Kopf im DZ gabs Bettwanzen” (“for 37.50 € for night and person in a double room, there were bugs in my bed”).

The hotel owner submitted that the portal administrator committed an act of unfair competition under § 4 (8) of the German Act on Combating Unfair Competition (spreading untrue information on an entrepreneur’s services harming its good reputation) and demanded that such practices be stopped.

However, the Court stated that an opinion published by the user may not be considered an opinion of a portal administrator, who has no control over the opinions expressed by the users. The administrator does not analyse each comment and publication of such comments is beyond its control. Where the administrator assumes a completely neutral role, its liability is restricted under § 7 (2) and § 10 sentence 1 point 1 of the Act on Electronic Media (Telemediengesetz).

The above Act stipulates, among others, that an electronic service supplier is not obliged to control the information provided through the agency thereof and verify it for compliance with the law. In this case, the portal administrator only used a filter to screen insulting words or opinions published by hotel owners themselves.

In the German judicature, it is assumed that an administrator is responsible for untrue statements published by a user only where the administrator neglects to take precautions reasonably expected of it due to the nature of its business. In the case of websites of the type as the one in the case in question, an administrator may not be required to analyse each individual comment.

Therefore, the claim for cessation of infringements would be available e.g. in a situation where a portal administrator received information on infringement and despite that failed to remove the comment from its website. However, this was not the case in the factual situation underlying the judgment of BGH.

The plaintiff is an airline which offers cheap scheduled flights. It does not distribute its flights through travel agencies, travel operators or other mediators but exclusively over their homepage or call center. Since the year 2007, the defendant runs on its internet site “www.     .de” a portal on which clients can book flights of different airlines online. There the client chooses in a search mask for a flight route and a flight date. After that a list of corresponding flights of different airlines appears; including flights of the plaintiff.

The plaintiff sees in the actions of the defendant a misuse of its booking system and an prohibited creeping in its direct distribution system.

Unfair is a hindrance, if it is directly for the purpose of hindering the development of competitors and to block them through these actions or also when the hindrance leads to the effect that competitors are not able anymore to advertise their products on the market in an adequate manner through their own effort. The requirements of an unfair hindrance are not on hand in this case.

The plaintiff is the consumer advice center Nordrhein-Westfalen and makes a claim on the sued compulsory health insurance to injunctive relief to refrain from the collection of personal data of minor consumers for commercial purposes in connection with a competition

The subject of injunctive relief is not only the collection of data of minors between 15 and 17 years, but the specific manner in which it happened.

The collection of data by the defendant which has been rejected by the plaintiff, constitutes a commercial activity in the light of § 2 section 1 Nr.1 and 6 UWG. Contrary to the opinion in the appeal, the application of § 2 section1 Nr.1 and 6 UWG is not contrary to the provision of Art. 3 section 1 in connection with Art. 2 letter b and d of the directive 2005/29/EG, even though the defendant is a corporation under public law and fulfills legal duties of health insurances.

The Federal Court of Justice of Germany (BGH) considered a case in which the publisher of newspaper from Stuttgart sued the publisher of advertising journal who put into print sponsored articles, marked with words “sponsored by”, but not separated from other publication materials by marking “Announcement”, what was contrary to § 10 of Press law of Baden-Württemberg. The claimant asserted that such actions constitute not only an act of unfair competition but also an unfair business practice and violates the rights of press readers as consumers.

In the judgment of 6^th February 2014, BGH ruled that § 10 of the Press law of Baden-Württemberg, which states that the press publisher, who obtains, demands or accepts a promise of remuneration for given publication is obliged to mark such publication with distinct information “Announcement”, unless its layout or concept allows readers to recognize its advertising character instantly, is the legal rule, which regulates market activity understood as in § 4 no. 11 of the German Unfair Competition Act. Therefore, violation of this regulation by the press publisher constitutes an act of unfair competition.

According to § 4 no. 11 of the UWG, an act of unfair competition is constituted by actions violating the provisions of the UWG regulating market activity in order to protect the interest of market participants.

BGH asserted that obligation, which is provided for in § 10 of the Press law of Baden-Württemberg, is designed not only to prevent readers from being misled but also to ensure objectivity and neutrality of the press. Therefore, it is also the interest of other participants of the press market.

It is of note, that in the scope of the proceedings, BGH addressed a prejudicial question to the Court of Justice of the European Union concerning consistency of § 10 of the Press law of Baden-Württemberg with regulations of the Directive of European Parliament and Council 2005/29/WE of 11^th May 2005 concerning unfair business practices committed by entrepreneurs towards consumers on the internal market.

In the judgment of 17th October 2013 (file ref. C 391/13 RLvS Verlagsgesellschaft mbH / Stuttgarter Wochenblatt GmbH) the Court of Justice of the European Union ruled that regulations of the Directive are not applicable to press publishers. The aim of the Directive concerning unfair business practices in such circumstances is not the protection of competitors of the publisher who publish sponsored articles advertising products or services of the sponsor without marking “Announcement”. Therefore, press publishers are not entitled to invoke regulations of the Directive in their business to business relations, because these regulations are devoted to protect consumers.

However, it is not against the Directive to apply the national regulation requiring press publishers who obtain, demand or accept a promise of remuneration for given publication to mark such publication with distinct information “Announcement”, unless its layout or concept allows readers to recognize its advertising character instantly.

To label a canned drink consisting of 26.7% of vodka and 73.3% of energy drink containing caffeine, the defendant used the name “ENERGY & VODKA”. In the opinion of the Plaintiff which was taken into consideration by the court of second instance, the use of the aforementioned name is impermissible being a violation of article 4 section 2 of the Regulation since it is prohibited to mark drinks containing more than 1.2% of alcohol with health claims. In the opinion of the court of second instance, the name used by the defendant suggests to consumers that the drink has special nutritional properties.

The Federal Tribunal of Justice (BGH) however did not share this view stating that the name “ENERGY & VODKA” is not a health note within the meaning of article 2 section 2 item 2 of the Regulation because it does not suggest or imply that the drink has special nutritional properties since “energizing effect” is not one of such properties being a common characteristic of all energy drinks.

In addition, BGH did not see the defendant’s conduct as being a violation of the provisions concerning marking of alcoholic drinks of the Regulation No. 110/2008 of 15 January 2008 of the European Parliament and of the Council on the definition, description, presentation, labelling and protection of spirit drinks.

The courts of both instances acknowledged that promotional campaign of the optician’s was an unlawful offer of additional benefits in exchange for the purchase of a medicinal product within the meaning of §7 section 1 sentence 1 of the Act on advertising of medicinal products.

In accordance with this provision, offering, promising or granting additional benefits or gifts (in the form of products or services) is unlawful unless the benefit consists in increased quantity of the same product.

However, the advertisement of the defendant did not concern a package of two products of the same type offered together but directly promised a gift in the form of another pair when one pair of glasses is purchased.

The above opinion was also shared by the Federal Tribunal of Justice who dismissed cassation appeal of the Defendant. In the opinion of the Tribunal, recognition of the advertisement as unlawful was determined by the fact of graphically highlighted information that another pair of glasses was added gratis. In such situation there is a risk that a consumer will decide to purchase the glasses at a discount price with the establishment of the defendant only considering the gift offered and not due to properties of the medicinal product which corrective glasses are.

The prejudicial question of the German Bundesgerichtshof concerned the packaging of fruit flavoured Teekanne tea sold under the name of “Felix Himbeer‑Vanille Abenteuer” (“Felix Raspberry-Vanilla Adventure”). The cardboard box contains, among others, pictures of raspberries and vanilla flowers. In addition, it contains markings such as “fruit tea with natural aromas” and “fruit tea with natural aromas – raspberry and vanilla flavour”, as well as a graphic presentation of an impress of a seal reading: “contains natural ingredients only”.

The packaging contains a list of ingredients in smaller font according to which the natural aromas are raspberry or vanilla flavoured. Therefore, the aromas used in the tea are not derived from vanilla and raspberry, but have raspberry and vanilla flavour.

The Court analysed whether such product marking was in compliance with Article 2 (1) (a) (i) of  Directive 2000/13 of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, which is not in effect now (currently, an analogical regulation is contained in Article 7 (1) (a) of the Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers).

According to the said Article, labelling and labelling methods shall not be misleading for the purchaser as to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production.

Therefore, in the judgment dated 4 June 2015, the Court stated that a label of a foodstuff may not suggest that an ingredient is contained in the foodstuff on the basis of the appearance, description or graphic presentation of the ingredient where the ingredient is not actually contained therein. It is not sufficient that lack of the ingredient may be derived from the list of ingredients put on the foodstuff packaging.