Abusive clauses

In many areas of life, consumers do not have the opportunity to negotiate the terms of the proposed contract. Their role boils down to signing the contract according to the contract template or rejecting it altogether. The template can be the contract itself as well as its appendices, such as regulations or general terms and conditions. They are widely used, inter alia, by banks, telephone operators, gas and electricity suppliers. As regards contract templates, there is a danger that the undertaking will impose on the consumer provisions that are detrimental to them.

Therefore, clauses that have not been negotiated individually are not binding for the consumer if they shape their rights and obligations in a way that is contrary to good customs and grossly violate their interests. Such contractual clauses are referred to as abusive clauses. Examples include clauses that exclude the undertaking’s liability for non-performance or inadequate performance of an obligation. It should be emphasised that clauses defining the main obligations of the parties, including price or remuneration, cannot be considered abusive if they are formulated in an unambiguous manner.

The President of UOKiK conducts proceedings on the recognition of model contractual clauses as abusive. The authority decides, by way of administrative decision, whether a clause is of an abusive nature and whether to prohibit its further use. A decision of UOKiK declaring a model contractual clause to be prohibited has effect only with respect to an undertaking who applied it and with respect to all consumers who entered into a contract with them pursuant to a clause indicated in the decision. This is the so-called abstract control of the model contractual clauses. In its rulings, the President of UOKiK may also specify measures to eliminate the ongoing effects of the undertaking’s unlawful practice and impose a fine on the undertaking. Decisions of the President of UOKiK are published on the website.

Prior to the entry into force of the amended Act on Competition and Consumer Protection, i.e., before 17 April 2016, the prohibited nature of contractual clauses was decided by the Court of Competition and Consumer Protection (SOKiK). Contractual clauses declared illegal by a final judgment of the SOKiK were entered in the Register of prohibited clauses and from that moment their use in trade with consumers has been prohibited.