P4, Alibiostar Trading, Optima, Reiffeisen. These are the undertakings to which the recent decisions of UOKiK on consumer protection pertained.

The above-mentioned judicial decisions pertain to decisions from the area of collective consumer interests, as well as the lawsuits brought by UOKiK in order to deem clauses prohibited.

P4 - Case ref. No. VI ACa 1644/15

 The first judicial decision was taken in March 2017, and pertained to the appeal of P4 against the decision of the Court of Competition and Consumer Protection. The proceedings concerned the decision taken by the President of UOKiK in December 2011. UOKiK held that the advertisement in question misled consumers, and imposed a penalty in the amount exceeding PLN 495 thousand upon the company. The Court of Appeal issued a judgement in which it reduced the penalty to the amount exceeding PLN 330 thousand. According to the court, on the basis of the advertisement’s content, the consumer could expect free text messages in the number specified in the promotion until the end of the account’s validity period. The situation looked different in practice - depending on the topped-up amount, not only the number of the text messages, but also the period of their validity was limited. The court ruled, however, that the President of UOKiK incorrectly determined the extent of the offence’s damage potential, and reduced the penalty.

Alibiostar Trading – Case ref. No. XVII AmA 144/14

In April 2017, the verdict was issued regarding the appeal of Alibiostar Trading (formerly Mat-Medic) against the decision of the President of UOKiK of August 2014. At that time, the Authority held that the undertaking used practices infringing collective consumer interests. The company sent to consumers invitations to a presentation, suggesting that it would be devoted to medical examinations covered by reimbursement and the possibility of taking advantage of a subsidy for the purchase of the products offered. The undertaking failed to inform the consumers about actual price of the devices sold. The financial penalties imposed on Alibiostar Trading in connection with the practices identified amounted to, in total, over PLN 256 thousand. The court fully upheld the Authority’s opinion, and dismissed the company’s appeal.

Raiffeisen – Case ref. No. III SK 15/16

In April 2017, a hearing took place which was devoted to the cessation appeal submitted by the President of UOKiK against a decision taken by the Court of Appeal. The Court of Appeal overruled the verdict of the Court of Competition and Consumer Protection appealed against by Raiffeisen, and dismissed Raiffeisen’s appeal against the decision of December 2012. In its decision, the Authority stated that Polbank breached collective consumer interests. The bank failed to provide consumers with the information on the fact that in order to receive a financial bonus, the consumer needed to have in the account sufficient funds allowing the fee for running the account to be collected. Soon after the decision Polbank was taken over by Raiffeisen, which submitted an appeal to the Court of Competition and Consumer Protection. The Court of Competition and Consumer Protection dismissed the appeal, and the bank submitted another appeal, claiming it did not have the right to participate in the proceedings, because it had not taken over the public law obligations pertaining to Polbank. The Court of Appeal shared that line of reasoning, and decided that there must be a special regulation which allows the transfer of public law obligations, whereas Article 494 of the Code of Commercial Companies is not sufficient. The President of UOKiK submitted a cassation appeal against the judgement of the Court of Appeal to the Supreme Court. The Supreme Court dismissed the verdict issued by the Court of Appeal, and referred the case back for rehearing.

Optima – Case ref. No. VI ACa 560/16

In February 2017, the Court of Appeal issued a judgement on the appeal submitted by Optima against the verdict of the Court of Competition and Consumer Protection. The proceedings pertained to the decision taken in May 2014. The Authority held that the company incorrectly calculated the cost of the loan and actual annual interest rate. Consumers were misled regarding the total loan amount. Financial penalties in the amount exceeding PLN 134 thousand and PLN 104 thousand were imposed upon the company. Optima submitted an appeal in which it stated that the fact that two financial penalties were imposed upon it was an example of a multiple punishment for one offence. The company questioned the penalty amount, referring to lower sanctions for other loan companies affected by the actions taken by UOKiK. The undertaking also pointed out that the provisions of the Consumer Loan Act are ambiguous and it could not be blamed for their incorrect interpretation. The Court of Competition and Consumer Protection and then the Court of Appeal rejected the undertaking’s line of reasoning, indicating that each allegations referred to an individual provision which needs to be complied with and treated separately. Consequently, the claim that the same offence was punished a number of times is groundless. Furthermore, the ambiguity of regulations or widespread practice of using them must not justify violation of law. However, the second instance court reduced the penalty amount, and the new sanction amounted to over PLN 213 thousand.

Appeals procedure

An appeal against the decision of the President of the UOKiK may be made to the Court of Competition and Consumer Protection; the judgements of the Court may, in turn, be appealed against to the Court of Appeal in Warsaw. In certain cases it is also possible to file a cassation appeal against the judgement of the Court of Appeal to the Supreme Court.

Court judgement database

From November 2015, a court judgement database is available on the UOKiK website. The database contains information on all judgements pertaining to the decisions on competition-restricting practices, control of concentration and infringement of collective consumer interests as well as judgements issued in cases concerning abusive clauses in which the President of UOKiK appeared as the claimant. The database is available under the “Judgements” tab on the UOKiK website: http://decyzje.uokik.gov.pl/bp/wyroki.nsf. Detailed information on the publication of court judgements is provided in the document entitled Rules on providing information on the judicial review of the decisions of the President of UOKiK.

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