Pending EU accession prompts new consumer protection law
Whereas the concept of law is as old as humankind, some areas of law have developed only quite recently. As the 20th century witnessed the end of utopian illusions of advanced agrarian-based societies and an increased separation of producers from end-users, consumer protection law, as an example, was developed to fill in the gap caused by these societal changes.
It was not until the mid-1980s, however, that consumer protection law became a topic of consideration in Poland. Now, as Poland is working toward integration with the European Union (EU), it must adopt consumer protection laws according to European standards. To this end, a new law on consumer protection (the Act on Contracts Executed Outside of an Enterprise's Premises or at a Distance and on Amendments to the Civil Code, Civil Procedure Code, and Code of Minor Offenses) is being considered by Parliament and was drafted based extensively on the wording of four European directives.
The title of this draft law is not only a mouthful, but is also a little misleading as the act also regulates product liability and limitations on form contracts. The law, however, goes beyond introducing product-liability concepts into Polish law, paving the way for new means of conducting transactions in the information age, including e-mail. Those mysterious terms in the title of the law "at a distance and outside of an enterprise's premises" are the methods for entering into contracts provided for by the law. The distinction between these two types of contracts is subtle, but important.
A contract executed "outside of an enterprise's premises" refers to situations in which you meet with a company representative personally and, typically, in an informal setting, such as your home or a restaurant. The concern of the legislature is that a consumer could make a decision as a result of the charming personality of or entertainment (perhaps, number of drinks?) provided by the representative, and later regret it.
Even more potential dangers lurk, according to the legislature, in long-distance sales. "At-a-distance" contracts are those in which no personal contact is made, but consumers are solicited through some form of media, including television, radio, mail, e-mail and faxes. The problem is that the offer might be presented only in the best possible light, and all unfavorable aspects of the deal are hidden.
With respect to the personal touch, the draft law requires that a company representative provide certain information to the potential client. First of all, that vacuum-cleaner salesman who knocks at your door must show you the registration documents of his company, personal identification and, if necessary, a power of attorney to represent the company. If you decide to purchase that vacuum and sign a contract, he must give you written confirmation of the contract setting forth the date, type of contract, subject matter and the price. Most importantly, he must also inform you that you have the right to withdraw from the contract without penalty. If you withdraw, all prepayments must be returned to you with statutory interest.
The draft law carves out exceptions for certain types of contracts. Understandably, the law does not apply to some matters that typically do not involve large amounts money, such as delivery of food to your home and customary sales up to E10. A number of other types of contracts that could involve significant sums are also excluded, including building services, real-estate contracts, insurance and retirement-pension contracts, investment services, and periodical services if offered to the public.
With respect to long-distance sales, the draft law provides consumers with a significant form of protection: faxes,
e-mails, pagers and telephones may not be used to conclude contracts without the consumer's prior consent. Additionally, a seller must provide you with a lot of information. The most important piece of information is the name and address of the seller, but you must also be informed about the essential terms of the sales contract, such as the price, method of payment, costs of delivery, cost of use of communication source, term of validity of the offer, term of periodical services and right of termination, where and how you can file a complaint, and about your right to withdraw within 10 days.
The draft law does not only serve to protect consumers, but also works to establish the ground rules for long-distance sales. In particular, a consumer may not return ordered audio or video equipment if the original packaging has been removed. Also, a consumer may not return financial services, press delivery and certain types of services that can not be returned because of their nature.
Consumers may become less optimistic about the draft law when they learn that it does not have much in the way of teeth when it comes to enforcement of the provisions relating to long-distance and outside of business premises sales. In these two areas, the draft law does not provide for any particular consequences for entrepreneurs that conduct their business in violation of the law except for an insignificant fine that may be imposed for not presenting personal identification, business registration documentation or a power of attorney.
This article was prepared by Lejb Fogelman, managing partner of Hunton & Williams Poland, with the assistance of Joanna Wojas, an associate attorney.
