The new year will bring essential changes in the area of e-commerce. 1 January 2021 will be the effective date of legal regulations significantly changing the functioning of this market in Poland. They are related to giving some entrepreneurs-natural persons the status of a consumer.
Initially, the new regulations were to come into effect in July 2019. However, the COVID-19 coronavirus pandemic resulted in the legislator’s decision to postpone entry of these provisions into force by six months.
So, how will the e-commerce market change? The changes discussed here will introduce to the Polish legal order a category of an entrepreneur-natural person carrying out an action not directly related to their business. In some situations, such a person will be able to benefit from certain rights given so far solely to consumers.
The new category of entities will be specified by three factors. The first one will be the fact of being a natural person. The second one – conducting business activity. The third factor will concern the relation of the agreement concluded by such a person with the profile of their business activity.
The first two factors do not need to be discussed in greater detail. It will be sufficient for a given natural person to conduct business activity and be entered in the Central Business Register and Information Service (CEIDG).
There are more problems with the third prerequisite. The regulations formulate it in quite an ambiguous way. In order for such a person to be given the status of a consumer, the agreement concluded by them cannot be directly related to their business. Additionally, it should stem from the agreement that it does not have professional nature for the natural person concluding it. Examination of the professional nature of the agreement should take the form of comparison of its subject-matter with the object of the business of the natural person (PKD) made available in CEIDG.
When analysing the above definition, it has to be concluded that the basic factor determining the awarding of some consumer rights to the entrepreneur-natural person is the object of the business activity disclosed in CEIDG. The subject-matter of the concluded agreement has to overlap with the object of the business activity from CEIDG. So, if a car mechanic buys a computer or an insurance broker leases a car, which they use for conducting their business activity, then such an agreement, though it is concluded for purposes of conducting business activity, is not directly related to such an activity. Such an agreement will not have a professional nature for the entrepreneur-natural person, since the object of business shown in CEIDG is not related to the subject-matter of the agreement.
One has to also bear in mind that such a person remains an entrepreneur. They will be given consumer rights only in some situations. In a case where the agreement concluded by such a person overlaps with the object of business disclosed in CEIDG, they will be treated fully as an entrepreneur. Then, no consumer rights will apply to them.
Polish law – following EU regulations – provides for a right of the consumer to withdraw from an agreement concluded remotely or away from the business’ premises. This right may be exercised within 14 days following receipt of goods or conclusion of an agreement (in the case of service agreements). This right cannot be restricted in any way. The consumer needs to be instructed on its existence. Lack of such an instruction results in the possibility of withdrawal any time – up to 12 months following conclusion of the agreement.
Starting from the new year the category of entrepreneurs-natural persons discussed in this article will also gain the right to withdraw from an agreement concluded remotely or away from the business’ premises. Sellers and service providers will be obliged to instruct such individuals on their right of withdrawal from the agreement. Lack of the instruction will have the same consequences as in the case of consumers. An entrepreneur being a natural person will be able to withdraw from the agreement even within one year of its conclusion.
Also, rights arising from the provisions on warranty on sale will be extended with respect to the discussed category of entrepreneurs-natural persons. Such individuals will be subject to special regulations governing consumer rights related to warranty. Moreover, applicability of some obligations imposed on entrepreneurs in relation to the use of warranty rights will be excluded.
The list of major rights to be given to entrepreneurs-natural persons carrying out an action not directly related to their business activity is as follows:
However, it will still be possible to exclude or limit warranty by way of an agreement.
On the other hand, the business partner of the buyer, in the case the latter exercised the warranty rights due to item’s non-possession of the properties asserted in public (e.g. in an advertisement), will have a recourse claim towards the individuals from whom they bought the item themselves, if the defects were caused by their conduct. This claim will cover damage suffered by the seller due to the fact that they had to satisfy the warranty claims.
The ultimate important change consists in extension of applicability of provisions on abusive contractual clauses to the category of entrepreneurs-natural persons discussed in this article. Thus, it will be possible for provisions not individually agreed upon with the client (i.e. in particular those included in regulations or general terms and conditions of contracts) to be considered as not binding on the entrepreneur. This will depend on the fulfilment of two conditions: violation of good practices by a given provision and gross violation of consumer interests. As a matter of exception, if a given provision concerns main performance of the parties (e.g. in a sale agreement this will be the payment of the price or handover of the item), then it will not be possible to declare such a clause abusive.
The use of such clauses will be inspected by common courts. It is the so-called incidental inspection. It is used by the court for purposes of a particular civil dispute. In such an event the court may conclude that a given provision is not binding and, thus, either the entire agreement is invalid or only some of its provisions cannot be applied in the relations between the parties.
However, abstract control exercised by the President of the Office of Competition and Consumer Protection will not apply. This is because the regulations do not provide for extension of the scope of competence of this authority with respect to practices violating collective consumer interests also to entrepreneurs being natural persons. Thus, it will not be possible to impose administrative financial sanctions on entities applying abusive clauses towards entrepreneurs.
The changes indicated above will undoubtedly affect the e-commerce sector. Extension of consumer protection to some categories of entrepreneurs will involve additional obligations for online shops related to verification whether or not an agreement concluded by an entrepreneur-natural person is directly related to their business activity.
Now the question arises, if the fact of taking a statement of such a person that a given agreement falls or does not fall within the scope of their business activity itself is sufficient? It seems that obliging entrepreneurs from the e-commerce sector to each time verify a given agreement against the object of the business partner’s activity disclosed in CEIDG is far-fetched. Often this would not even be possible, taking into account automation of the transactions on the e-commerce market.
However, what an entrepreneur operating in this sector should do is review existing documentation, such as regulations, draft agreements or general terms and conditions of contracts. These documents will have to be adjusted to the new legal reality. In particular, they will have to reflect the new category of buyers – entrepreneurs-natural persons carrying out an action not directly related to their professional business activity.
It is worth to adjust documentation as soon as possible. TGC Corporate Lawyers offers assistance in the process of review and adjustment of the relevant documents.
Director of the Commercial Law and Property Department, Advocate
TGC Corporate Lawyers
TGC Corporate Lawyers
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