On 28 May 2022 Member States of the European Union were required to adopt and start applying legislation implementing 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 with regard to better enforcement and modernisation of EU consumer protection legislation (hereinafter: the Omnibus Directive), which introduced changes to consumer protection law. Althoughthe draft law implementing the Omnibus Directive is only being proceeded by the Polish Sejm, we already invite you to familiarise yourself with the main changes today.
Information on the status of the trader
E-Commerce Platform providers will be obliged to inform consumers whether a third party offering goods, services or digital content on their platform is a trader. This will enable buyers to determine whether consumer protection rules will apply to the contract in question. The information on the status of a trader is to be based on statements from third parties displaying their products on the platform of the respective provider. And therefore E-Commerce Platform Providers will have to implement appropriate procedures to obtain these statements.
If a given vendor is not a trader, it’s the E-Commerce Platform Provider’s obligation to inform the buyer that the consumer protection legislation does not apply to the particular contract he intends to conclude via the E-Commerce Platform.
Information on individual price adjustment
A phenomenon common in sales via online platforms is the individual adjustment of product prices to specific buyers or specific categories of buyers based on automated decision-making and behavioural profiling that allow traders to assess the buying power of buyers. The amended Consumer Rights Act will require traders to inform consumers that the proposed price of a good has been individually adjusted on the basis of automated decision-making.
Information on price reductions
An offshoot of individual price adjustment is the phenomenon of so-called price “juggling”, – artificially inflating prices before a promotion starts. As a consequence of this phenomenon, the consumer is not in a position to assess the real level of the price reduction offered by the trader in relation to the original price. In order to counter this practice, the Omnibus Directive introduces the obligation to indicate the lowest price for a given product in the last 30 days before a reduction is announced in any announcement of an upcoming promotion.
Extension of the withdrawal period for off-premises contracts
Under the new rules, a consumer who has entered into a contract:
- outside the company’s premises;
- during an unscheduled visit by the trader to the consumer’s home or usual place of residence;
- during an excursion organised by the trader with the purpose or effect of promoting and concluding contracts with consumers;
will be able to withdraw from the contract within 30 days without giving any reason and without incurring costs.
Placing on the market of ‘dual quality’ goods – a new type of misleading activity
The new regulations will define a new misleading practice for consumers in the Act on Counteracting Unfair Market Practices. This will be any type of marketing of a good as identical to a good marketed in other Member States, where the good differs materially in composition or properties. However, such marketing will not be an act of unfair competition if there are legitimate and objective factors behind the advertising of a good as identical to its counterpart on other EU markets.
The implementation of the Omnibus Directive will impose a number of information obligations on entrepreneurs and E-Commerce Platform Providers, which it is worth being aware of even before the new regulations come into force. We encourage you to contact our experts today to assist you in the preparation and implementation of the new procedures.
Norbert Czerniak, lawyer