The revision of consumer protection law is quite confusing. Among other things, the Ombudsman for Small and Medium Entrepreneurs and the Minister of Justice made comments.
The amendment was created as part of the adaptation of the rules to the EU Regulation of the European Parliament and of the Council from 12 December 2017 cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EU) 2006/2004 (CPC Regulation). The project assumes broader powers of the Consumer Ombudsman, who will largely assume the duties of the Financial Ombudsman.
The essence of the solutions included in the project
The aim of the project is to complement the competences in the field of consumer protection with the competences provided for by the CPC Regulation. Implementation will require the following powers:
extend access to information from a public body, entity or national agency. Applicable provision Article 72 ukik points out the obligation to make available to the President of the Office the files held by public administration bodies and relevant information for proceedings pending before the President of the Office.
The introduction requires: to track the flow of funds and data or to confirm the identity of persons involved in the flow of funds and data, and to confirm the identity of persons involved in the movement of funds and data, as well as information on bank accounts and website ownership;
the possibility of recording the course of checks or individual operations in each case (change of Article 105b(4), which now provides for such a possibility in ‘reasoned cases’;
the introduction of the power to acquire goods or services, including, where necessary, the possibility of presenting as another person/hidden identity;
it is necessary to implement regulations on the privileges of the Internet interface. According to Article 9(4) point (g) of the CPC Regulation in the absence of other effective measures which may lead to the cessation or prohibition of a breach covered by this Regulation and in order to prevent the risk of serious harm to the collective interests of consumers, the right to order the removal of content or to restrict access to the Internet interface or to require the placing of a clear warning to consumers entering the Internet interface,
the hosting service provider removes or disables the Internet interface or restricts access to it, or, where appropriate, orders domain registers and domain registrants to delete the full domain name (FQDN) and allow the competent authority to register it.
extension of search institutions to consumer proceedings (Article 105n ukik). Thus, the President of UOKiK is to receive more powers, which he will be able to use with the support of the ABW or the Police.
These will include the possibility of conducting a search in the framework of consumer proceedings, the possibility of removing content from websites and blocking websites.
The Office will also be able to act as a mysterious client, to purchase goods or services, if necessary, with the possibility of presenting itself as another person/hidden identity to test them.’
Remarks to the project
Moving business to the network increasingly requires regulation, with concern for the interests of customers, while the interests of honest entrepreneurs must not suffer.
It seems that, in the form of a revision of the powers of the UOKiK now, could pose a real threat to economic freedom.
This is addressed by the SME Ombudsman, who points out that in some points the project is contrary to the Business Constitution.
In particular, the SME Ombudsman pointed out that the project should provide for the prior authorisation of the court to issue a decision by the President of UOKiK to order the trader to remove incorrect content from the website, to post a warning on the page or to finally delete the domain name.
The introduction of such broad powers can lead to violations of the fundamental and constitutional principle of freedom of economic activity.
Furthermore, the SME Ombudsman pointed out that the project requires its solutions to be adapted to the principles of the Business Constitution, in particular the principle of proportionality and adequacy.
This refers, inter alia, to the proposed exclusion of control activities under this Regulation under Chapter 5 Act – Right of entrepreneurs to restrict control of business activity, which has a guarantee for entrepreneurs.
The SME spokesperson also pointed out that the proposed regulations should ensure that hosting companies comply with the President of the UOKiK’s statement excludes their liability towards recipients for any damages related to its application, which seems to be a logical implementation of the principle of trust in public authority.
The project also assumes the creation of a new UOKiK cell to take over the mandate of the Ombudsman of Finance. The idea is criticised by the Ombudsman, Zbigniew Ziobro, as well as the Minister of State Acts and the Ministry of Science and Higher Education.
The SME spokesperson pointed out that members of the SME Ombudsman Working Groups on Crafts and the Automotive Industry dealing with the problems of "small" entrepreneurs related to unfair practices of insurance companies had expressed a strong negative opinion on the idea envisaged by the draft to abolish the Financial Ombudsman's institution, to liquidate its office and to transfer their competences and tasks to the Office for Competition and Consumer Protection. The previous twenty-year activity of the Financial Ombudsman has been positively assessed by both the entrepreneurs themselves, as well as the Supreme Audit Office in its reports and control conclusions over recent years.
In its opinion to the draft, the Ministry of Justice states that it is not appropriate to combine the competences of individual and collective consumer protection, as this will lead to a significant reduction in its level.
‘It must be stated that the proposed amendments to be applied to the merger within the framework one the body of tasks to protect consumers' interests in the financial market raises doubts as to their constitutionality, notes the ministry of Zbigniew Ziobry.
– According to Article 76 The Constitution of the Republic of Poland, public authorities protect consumers, users and tenants from activities threatening their health, privacy and safety and unfair market practices."
The opinion of the Minister of State Acts states that "It should be pointed out that the President of UOKIK, in the current state of the law, does not deal with individual cases in the field of competition and consumer protection, acts in the interests of the general consumer. (...) The examination of individual cases brought by a financial market operator’s failure to take account of customer claims will create a significant breach in the current system of consumer protection.”
In a similar tone, the Ministry of Science says: “Consolidation of private and collective consumer protection can have a counterproductive effect and threaten both the interests of individual consumers and the former primary objective of this body, namely the protection of the public interest. If it is necessary to choose between a private interest and a public interest which does not always have to be the same) each time the UOKiK will be forced to determine dominance one of them’.