New rules of procedure for recognizing contractual causes as unlawful
On 5th August 2015, the amendment to the Polish Act on Competition and Consumer Protection of 16th February 2007 [ACCP] was passed where Section III was added concerning a ban on using unlawful provisions of standard form contracts.
First of all, the procedure was changed for recognizing provisions of a standard form contract as unlawful. So far, the decision in this respect has rested with the Regional Court in Warsaw – the court of competition and consumer protection on the basis of the provisions contained in Title VII Section IVb of the Code of Civil Procedure [CCP].
Pursuant to the regulations, a provision shall be recognized as unlawful by the President of the Office of Competition and Consumer Protection by way of an administrative decision.
However, it should be noted that the regulations of the CCP on proceedings before the court of competition and consumer protection will be repealed only after 10 years from the date of publication of the Act, i.e. on 16th October 2025. Until then, there will be two separate procedures – legal and administrative procedure.
The administrative procedure shall be of much shorter duration than the legal procedure – pursuant to article 99e of the ACCP it should be completed within 4 months, and in a particularly complicated case not later than within 5 months of the institution thereof. However, proceedings will not be instituted if 3 years have passed since the end of the year when the use of unlawful clauses is abandoned.
In addition to finding a given provision to be of an abusive nature, the President of the OCCP may obligate an entrepreneur to inform the consumers being the parties to contracts concluded on the basis of such standard form that the said provision has been found to be unlawful, to make a single or repeated statement with a content and in the form determined in the decision as well as demand publication of the decision at the entrepreneur’s expense.
But a fine which the President of the OCCP may impose under article 106, section 1, subsection 3a of the ACCP can be particularly severe with entrepreneurs using unlawful clauses. The fine may amount up to 10% of the turnover obtained in the fiscal year preceding the year when the fine is imposed.
In article 23d of the ACCP, the question is defined of the so called extended legal validity of the decision recognizing provisions of a standard form contract as unlawful. Such a decision shall have an effect on the entrepreneur who has been found to use an unlawful contractual provision and on all consumers who have concluded a contract with him basing on the standard form named in the decision.
The Act was published in the Journal of Laws of 16th October 2015 and shall become effective as of 16th April 2016 (with exceptions referred to above).