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Office of Competition and Consumer Protection

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Judicial decisions: consumer protection

< previous | next > 19.09.2018

Judicial decisions: consumer protection
  • Invest-Net Braniewski Tomasz, Nobilon Marek Bednarz, Bracia Strzelczyk Witold Strzelczyk.
  • These are the undertakings that were subject to judicial decisions following UOKiK's decisions concerning consumer protection

Invest-Net Braniewski Tomasz – Ref. No. XVII AmA 6/16

The first decision was issued in June 2018 and concerned the appeal of Invest-Net Braniewski Tomasz against the UOKiK’s decision of November 2015. The undertaking managed the website ale-gratka.pl, through which it accepted consumer orders for placement of advertisements concerning their immovable property. According to the information available on the website, there was a 3-month trial period for the service. After 3 months of the free trial, the service was subject to charges (approx. PLN 500 per month). It was impossible for customers to withdraw from the contract immediately because the period of notice set by the undertaking amounted to three months. This means that the service could cost as much as PLN 1,500. In the opinion of UOKiK, the undertaking violated the interests of consumers with this practice. The customers were forced to continue paying for the service even after they had already sold their property. Furthermore, the undertaking only quoted net prices in its regulations. This could create a false impression that the prices were low and affect the decision to conclude the contract.

UOKiK imposed a fine of more than PLN 21 thousand on Invest-Net Braniewski in connection with violation of consumer rights. The Court of Competition and Consumer Protection agreed with the opinion of the President of UOKiK. In the statement of grounds, it explained that the manner of information on charges for services was inappropriate and deemed the practice particularly reprehensible. The Court ruled that imposing on consumers a three-month period of notice for contracts for immovable property advertisement was reprehensible and contrary to acceptable practices. In the view of the Court, the penalty was proportionate to the offence.

Nobilon Marek Bednarz – Ref. No. XVII AmA 1/16

Another judicial decision pertains to the decision issued in November 2015. The President of UOKiK concluded that Marek Bednarz, conducting business activity under the name Nobilon in Włocławek, was guilty of infringement of the collective interests of consumers. The undertaking grants loans to consumers. UOKiK found, among others, that the undertaking reserved the right to demand a meeting with the borrower in the event of delay in payment of an instalment in consumer loan contracts. It also provided for a contractual penalty in the event of refusal. In the opinion of UOKiK, undertakings cannot impose on consumers any obligations which are not connected with the contract or financial sanctions for failure to perform such obligations.

Moreover, the undertaking stipulated in contracts that if the consumer failed to notify it of change to contact details within 7 days, attempts to contact the consumer using the previously provided details would considered effective. However, in accordance with the applicable law, statements of lenders (e.g. request for overdue payment) shall be deemed effective only after they have been delivered to the addressee and the consumer has had the chance to actually read them. For practices violating collective consumer interests, UOKiK imposed on Nobilon a fine amounting to PLN 66,601 in total.

In July 2018, the Court of Competition and Consumer Protection issued a decision dismissing the appeal of the company. In the oral statement of grounds, the Court noted that the concept of fictitious delivery had been created in order not to block administrative proceedings and could not be used in relations between undertakings and consumers. The Court ruled that UOKiK had determined the amount of the fine imposed on the company correctly.

Bracia Strzelczyk Witold Strzelczyk – Ref. No. VII AGa 1154/18

The third judicial decision pertains to the decision issued in November 2012. UOKiK expressed reservations about the content of model contracts used to conclude sales agency contracts in relation to immovable property by Witold Strzelczyk, conducting business activity under the name “Bracia Strzelczyk Witold Strzelczyk”. UOKiK impugned the fact that Witold Strzelczyk provided in exclusivity contracts for the right to charge consumers who sold the flat on their own, independently of the agent’s actions, the full amount of commission. However, in accordance with the applicable law, undertakings are not entitled to remuneration if they did not perform the contract. Moreover, the forms used by Witold Strzelczyk contained a provision pursuant to which consumers were charged excessive contractual interest in the event of delay in payment of remuneration.

UOKiK also impugned the fact of imposing on the clients the obligation to pay a contractual penalty in the event that the client should conclude a contract with a person indicated by the agent and fail to pay remuneration therefor to the agent on the day the contract was signed. This practice is contrary to the civil code, which provides for the possibility to establish a contractual penalty only for non-cash obligations.

The President of UOKiK imposed on Witold Strzelczyk a fine amounting to more than PLN 42 thousand in total.

In December 2016, the Court of Competition and Consumer Protection issued a decision partially revoking the decision of the President of UOKiK. The Court ruled that some of the clauses impugned by UOKiK were not comparable to the ones entered in the register as the degree of similarity was too small. At the same time, it revoked the fine for use of other abusive clauses. In July 2018, the Court of Appeal ruled that UOKiK could not question the application of provisions entered into the register of abusive clauses by the undertaking unless the undertaking had been sued in the case in which the provision was entered into the register by way of judicial decision. It referred to the resolution of the Supreme Court of 20 November 2015, Ref. No. III CZP 17/15. However, both courts upheld the decision as regards the practice contrary to the civil code. Ultimately, the fine imposed on Witold Strzelczyk amounted to more than 16 thousand zlotys.

Appeal procedure

Undertakings have the right to appeal against decisions of the President of UOKiK to the Court of Competition and Consumer Protection, and to appeal against decisions of the Court of Competition and Consumer Protection to the Court of Appeal in Warsaw. It is also possible to file a further appeal against the Court of Appeal’s decision to the Supreme Court.

Judicial decisions database

Since November 2015, a judicial decisions database is available on the UOKiK website. It contains information on all decisions concerning competition-restricting practices, control of concentration, infringement of the collective interests of consumers and cases concerning recognition of prohibited clauses (in which the President of UOKiK was the claimant). The database is available under the “Prawo/Baza wyroków” tab on the Polish version of the UOKiK website: http://decyzje.uokik.gov.pl/bp/wyroki.nsf. Detailed information on the publication of judicial decisions is provided in the document entitled Rules on providing information on the judicial review of the decisions issued by the President of UOKiK.

Additional information for the media:

UOKiK Press Office
pl. Powstańców Warszawy 1, 00-950 Warszawa
Phone: +48 695 902 088, +48 22 55 60 345
Email: [SCODE]Yml1cm9wcmFzb3dlQHVva2lrLmdvdi5wbA==[ECODE]
Twitter: @UOKiKgovPL

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