Out-of-court settlement of consumer disputes in 2017

On 10 January 2017 the Act of 23 September 2016 on out-of-court settlement of consumer disputes enters into force. The provisions of the Act are applicable to settle consumer disputes between a consumer who is a resident in Poland or another EU Member State and a trader who is established in Poland. The proceedings will be commenced at the consumer’s request and will concern disputes arising out of contract concluded with the consumer.

The register of authorised entities

The President of the Office of Competition and Consumer Protection (‘OCCP’) will keep a register of entities entitled to out-of-court settlement of consumer disputes. They can be both non-public entities created for instance by consumer organisations, and public entities operating at institutions such as Negotiations Coordinator at the President of the Energy Regulatory Office, the Provincial Inspector of Trade Inspection, President of the Office of Electronic Communications, the Financial Ombudsman or appointed under the Act Rail Ombudsman at the Office of Rail Transport.

Appointment of the Rail Ombudsman

This newly created office’s task is to conduct proceedings on the out-of-court settlement in matters relating to contractual obligations, including the ticket vendor’s or the tour operator’s obligations to the consumer that result from the contract of carriage of persons, goods or animals in the rail transport and in matters relating to services provided to passengers by rail carrier, rail infrastructure administrator, the railway station owner or the railway station administrator, i.e. in passenger matters.

Trader’s obligation to inform

From 10 January 2017 there are additional obligations to inform imposed on a trader who committed or is obliged under separate provisions to resolve disputes with consumers out of court. The trader should inform consumers about entity entitled to out of court settlement of disputes that is competent for that trader. Such information must include at least the website address of the entitled entity and be provided in a comprehensible and easily accessible way for the consumer including: on the trader’s website, if one exists; in the general terms and conditions of contracts concluded with consumers, if applicable.

Arbitration agreement with the consumer

The new Act introduces also changes in the Code of Civil Procedure with respect to the arbitration agreement. According to the new art. 11641 § 1of the Civil Procedure Code, the Arbitration Agreement covering disputes arising from contracts to which consumer is a party may only be drawn up after the dispute has arisen and it must be in writing. In the arbitration agreement it must also be indicated, in order to be valid, that parties are aware of the effects of the arbitration agreement, in particular of the legal force of an arbitration award or of the settlement reached before the arbitration court on a par with a court judgment or settlement reached before the court after their recognition by the court or after the court found them feasible.

To the art. 1194 of the Civil Procedure Code a new § 3 was added pursuant to which in case of disputes arising out of contracts to which consumer is a party, the settlement of a dispute according to the general provisions of the law or equity should not result in the consumer being deprived of the protection afforded to him by the mandatory provisions of the law applicable to a given relation. However, he is deprived of such protection by the arbitration award or by a settlement concluded before the court of arbitration.

We would also like to remind that from 15 February 2016 there is a dispute resolution platform for disputes arising out of online transactions about which we have already written on the UCLP:

ODR Platform and new responsibilities for on-line markets