Omnibus Directive — new obligations for retail industry (online and in-shop sales)

The Omnibus Directive enhances consumer protection by improving the enforcement of their rights and redress, and imposes additional information obligations on e-commerce traders.

On 1 January 2023, several laws on increasing the rights of consumers purchasing goods or services from traders, including via the Internet, came into force. Among others, the Consumer Rights Act, the Act on Information on the Prices of Goods and Services and the Unfair Market Practices Act have changed.

The aim of the amendments was to implement several European directives into the Polish legal order, including the Omnibus Directive (i.e. Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules) and Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC and repealing Directive 1999/44/EC, and Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services.

Omnibus Directive — wide-ranging changes

The Omnibus Directive constitutes a kind of response to a number of dynamic changes due to development of digital market. Directives 2019/770 and 2019/771 primarily provide even greater consumer protection by extending the liability limits for sellers of goods with digital components and traders providing digital services and digital content to consumers. Directive 2019/771 concerns consumer protection when contracts for the sale of goods with digital elements are concluded between the consumer and the seller, and Directive 2019/770 applies to contracts for the supply of services or digital content concluded with a consumer.

Below, there are the most important changes:

• when the seller reduces the price of a good or service, the seller will be obliged to inform about the lowest price in force during 30 days prior to introducing the reduction. If the product is marketed for less than 30 days, the lowest price since it was placed on the market should be provided. The period shorter than 30 days before applying the price reduction will also apply to perishable goods or goods with a short shelf life. In this case, the price from before the first application of the reduction should be communicated. For failure to comply with these obligations, the Voivodship Trade Inspection may impose a fine of up to PLN 20,000, and in the case of repeated infringements (3 times within 12 months from the first penalty) to PLN 40,000;

• the Unfair Market Practices Act adds a new case of misleading action, i.e. any type of placing on the market in at least one Member State of a good as identical to a product marketed in other Member States, even though the product differs significantly in composition or characteristics, unless supported by justified and objective factors. In addition, the catalogue of information whose failure to communicate is deemed to be a misleading action has been expanded, including arrangements concerning the method of payment, delivery or workmanship of the product, as well as information on whether a third party offering the products online is a trader; whether and how the trader ensures that the published opinions come from consumers who have used or purchased the product, as well as general information made available in a dedicated online interface accessible directly and easily from the page where the search results are presented on the main parameters determining the ranking of the products presented to the consumer as a result of the search and the relative importance of those parameters compared to other parameters. Furthermore, an unfair market practice will always be considered behaviour such as: provision of search results without explicit disclosure of paid advertisement or payment specifically made to obtain a higher ranking of products in the search results, and, also, claiming by the trader, which allows access to consumer opinions on products, that those opinions have been posted by consumers who have used or purchased the product, even though the trader has not taken reasonable and proportionate steps to verify whether those opinions originate from those consumers, as well as posting or outsourcing posting of false opinions or recommendations of consumers or misrepresentation of consumers’ opinions or consumers’ recommendations to promote products;

• in connection with distinguishing from the general concept of supply of goods and services, a specific category of goods and services such as digital content and digital services, the rules governing the conclusion of contracts for the supply of such content are separately regulated. In particular, there is an obligation to provide the content or service immediately after the conclusion of the contract, unless the parties have agreed otherwise, and if the trader fails to do so, the consumer has the right, after having called on the trader to deliver them, to withdraw from the contract. The warranty for defects of the content or services provided is also separately regulated;

• once again, the so-called consumer warranty has been regulated separately. Upon entry into force of the amendments, the rules of consumer warranty will be regulated separately from the provisions of the Civil Code and are included in the Consumer Rights Act. Significant changes mean the limitation of the rights consumers, who, in the first place, may only demand repair or replacement, while the remaining rights (such as demanding price reduction or withdrawal from the contract) will only be able to exercise later;

• ; the Consumer Rights Act also introduces new model information that traders can use as information on the right of withdrawal;

• in order to better protect consumers, there is a ban on concluding contracts for financial services (in particular credit/loan agreements) during the presentation (or excursion); the only case in which such a contract may be concluded is during a visit to a consumer’s home, and the trader must be able prove that invitation to the visit came explicitly from the consumer.

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