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Development of consumer law

Development of consumer law in the EU

Even today, before forthcoming expansion, European Union has about 370 million residents. If to accept that every natural person, in some situations is a consumer it equals to 370 million consumers now and close to half billion after the 1st May of 2004. All these people need and deserve protection, and the purpose of this chapter it to show the past and potential future of consumer protection in context of electronic transactions.

Development of modern consumer law in the US could be traced as far back as year 1962 and Special Message to the Congress on Protecting the Consumer Interest, delivered by J.F. Kennedy. I believe that it is worthwhile to mention American approach to consumer protection as its development in the European Union, very slowly, beginning to resemble it72. The most significant for the consumer protection in the United States is treating it as a matter of constitutional law. Consumers need protection because they are underrepresented – they constitute a minority, not because of their number (as Kennedy said in his speech: “we are all consumers”), but because of their dispersion – constituting as such weaker minority.

Consumer protection in Europe took off exactly ten years after Kennedy’s speech – in 1972 during the Heads of State or of Government meeting in Paris on 19 and 20 October institutions of the Communities were called to strengthen and coordinate measures for consumer protection and to submit a programme by January 197473. From then on, consumer protection has been being developed within the frameworks of long term action plans.

ACTION PLANS

Before Action Plans

It must be said that even before introduction of preliminary programmes presence of consumers and need of their protection had been noticed by European Economic Community’s authorities. As Council stated itself in its resolution: While consumer protection has long been an established fact in the Member States of the Community, the concept of a consumer policy is relatively recent74.

First programme of integral and complete actions in favour of customers was introduced in 1975 by Council Resolution of 14 April 1975 on a preliminary programme of the European Economic Community for a consumer protection and information policy.

Deficit of representation wasn’t (till very recent times) treated by Communities’ authorities as ratio decidendi of introducing any specific regulations granting customers with any rights. Pro customer policy was treated as depending entirely on the will of authorities, and not determined by anyone’s aspirations or claims.75

Contrary, from the very beginning consumer protection within Communities took a form distinctively different than in the United States. In overall strategy of consumer protection, attention attract two elements.

First, that the aim of providing customers with special rights wasn’t meant to create a privileged group on a market, but rather restoring disturbed balance. Like its predecessor, it [second programme of the Europe an Economic Community for a consumer protection and information policy] is primarily concerned with the need to enable the consumer to act with full knowledge of the facts , and to hold the balance between market forces.76

There are many voices that it’s important to limit consumer protection, because its excess may be unjustly harmful for the professional part of the contract. Excessive protection encourages to undertaking of redundant risk on the side of the consumer, and finally unfavourably influences all the market. Consequently of great importance is maintenance of balance between rights and duties of all subjects participating in the market.77

Thus while American approach, to consumer protection, puts a special stress on protecting consumers by means of rights they already have (especially constitutional right of representation ) what helps them also in attempts at achieving new rights, than in Europe they are offered new rights aimed at restoration of balance between active and passive participants of market, lost in effect of market’s evolution caused by both integration and technological development.

Second aspect, very specific for European strategy in consumer protection, is that while consumers in United States are protected because they are underrepresented, in European Union the most fundamental reason for their protection is assumption that they need protection because they are badly informed.78

From the very beginning of organized consumer protection’s development strong stress was put on creation of consumer information policy79. Such a policy has been being developed within consecutive long term plans for consumer policy.

Preliminary Action Plan

Both these issues are very precisely stated in point 6 of preliminary programme of the European Economic Community for a consumer protection and information policy.80

What E. Łętowska brings up in many articles, in Communities law, if it comes to consumer protection a starting point is that consumer needs protection because he is poorly informed and as a result of that he can’t in truly free, unbound way decide about his participation in the market. Only well informed consumer may effectively protect his interests. In effect Communities’ law abounds in detailed and casuistic enumeration of information duties which active participants of the market have towards customers. Spectacular examples of such regulations may be found for instance in directives 98/7, 90/314, and 93/13.

It’s possible to distinguish two problems in consumers’ information, not only lack of information constitutes an obstacle in making correct market decisions, but also their excess.

All long term plans have non binding nature, but their function in developing of EU consumer protection law could hardly be overestimated. They not only decide about principle applied by legislative authorities of the EU. How important is role of those long term plans in shaping ECJ judicial decisions may be seen for instance in case GB-INNO-BM v Confédération du Commerce Luxembourgeois. In this case ECJ explaining its position directly revoked long term plans and their principles (Case C-362/88 – points 14-16)81.

As it appeared later – year 1975 and first long-term programme constituted the breaking point in development of consumer protection in European Economic Community. This document declared officially new view on consumer protection.82 View which considered continuously changing market situation and consumers’ need for active support from authorities, not to let them achieve better position on the Common Market, but just to let them keep position they used to have.83

Although the scope of consumer protection was a subject to continuous evolution in the law of community, it still remains within borders drawn by those first long-term plan.

This plan defined five basic rights to which consumers were entitled:
1) the right to protection of health and safety,
2) the right to protection of economic interests,
3) the right of redress,
4) the right to information and education,
5) the right of representation (the right to be heard).

Albeit not all of these rights were considered equally important annex to aforementioned action plan included more specific means and priorities for realization of them all.

Preliminary programme itself didn’t evaluate which of these rights are more important but what may be noticed in course of consumer protection’s development, especially from resulting legislation, the balance between rights stated in preliminary programme gradually shifted from original strong stress on protection against hazards to consumer health and safety and protection of economic interests to the consultation with consumers and their representation.

This tendency will be more clearly visible in subchapters concerned with development of both primary and secondary law of EC on the field of consumer protection.

These rights constituted a starting point for all following long term plans, for this reason I will not present here following long term plans with the same accuracy as the first one, limiting myself to presentation of the main aspects of following plans, concentrating on those elements which were characteristic for particular programs.

Subsequent Action Plans

Second long term plan,84 adopted for another five year period, was accepted on May 1981. It upheld development of five basic rights stated in preliminary plan.85

Is stressed function of a dialogue in striking a balance between interests of active and passive participants of a market and achieving a compromise between them.

As Commission stated in the plan The purpose of this programme is to enable the community to continue and intensify its measures in this field and to help establish conditions for improved consultation between consumers on the one hand and manufacturers and retailers on the other.

Third plan (A new Impetus for Consumer Protection Policy)86 put stress on product safety on common market.

All action plans starting from 1990 were accepted for three year periods: 1990-199287, 1993-199588, 1996-199889, and 1999-200190. However the recent action plan91 returned to tradition of plans specified for five year periods and it’s difficult to estimate which tendency might prevail in future.

Forth action plan (1993 – 1995) provided for both farther development of consumer rights on protection of health and safety field, as well as protection of economic interests, and improving consumer representation. In that period for instance the Consumers’ Consultative Committee was adapted so as to make it more representative.

Action plan covering period 1996-98 puts a particular stress on improvement of consumer information, to its objects belonged development of The European Consumer Centres Network (Euroguichets). It provided also for improvement of consumer situation in following areas:

  • financial services, essential public utility services and food products (measures have already been taken in respect of consumer credit , means of payment, foodstuffs legislation and consumer health );
  • consumer education, aimed mainly at encouraging sustainable consumption behaviour and facilitating access to the information society;
  • assistance for the countries of Eastern Europe and developing countries in order to help them develop their own consumer-oriented policy.

The last but one, action plan covering period 1999 – 2001 took as a main objective reaction to changes caused by globalization and development of new technologies and means of dissemination of information, as those two factors drastically changed situation on a market; both: offer became abundant and diverse and at the same time new technologies allow significant individualization of satisfying consumers’ needs. New economic situation caused change in marketing techniques as well as purchasers’ expectations. Action plan 1999 – 2001 emphasised interaction between consumers and other market participants and shown necessity of continuous dialog and cooperation between them.

Among some more specific assumptions presented in this action plan were on the field of consumer representation and education: entailing more systematic consultation, more effective dialogue between consumer associations and between consumers and business, appropriate information campaigns, expansion of the “Euroguichets” information and advice centres, and greater cooperation with the Member States as regards consumer education92

And finally current action plan which sets strategy for consumer policy at the European level over the next five years (2002-2006). It sets out three mid-term objectives, implemented through actions included in a short-term rolling programme, which will be reviewed regularly. These objectives are:

  • A high common level of consumer protection,
  • Effective enforcement of consumer protection rules, and
  • Involvement of consumer organizations in EU policies.

What must be noticed is that these objectives are mutually reinforcing, and priority has been given in the strategy to actions which complement each other and which, together, form a critical mass of actions, which reinforces their leverage effect.

A high common level of consumer protection.

It’s necessary to enable consumers and business to realize the benefits of the internal market. Central to this is the establishment of common consumer protection rules and practices across Europe. This means moving from the present situation of different sets of rules in each Member State towards a more consistent environment for consumer protection across the EU.

This does not mean regulating all consumer protection in detail at European level. It would be neither desirable nor practical. It means harmonizing, by whatever means is most appropriate (framework directive, standards, and best practices), not just the safety of goods and services, but also those aspects of consumer economic interests that give consumers the confidence necessary to conduct transactions anywhere in the internal market.

Following legislation

The main stress within all long term plans is put on great amount of specific implementation activities undertaken in order of putting those plans into effect. Work is not restricted to time limits of particular action plans but could be as going on between them. Each of following programs tackling with the same or similar issues, presents new quality and rises the level of protection. Those following changes, during the last quarter of twentieth century, resulted with transformation of consumer protection from the side effect of economic integration into one of the strategic policies of European Community93

This increased role of consumer law finds its reflection in development of both primary and secondary legislation, covering that field.

PRIMARY LEGISLATION

Primary legislation includes in particular the Treaties and other agreements having similar status. It is agreed by direct negotiation between Member State governments. These agreements are laid down in the form of Treaties which are then subject to ratification by the national parliaments. The same procedure applies for any subsequent amendments made to the Treaties.

The Treaties also define the role and responsibilities of EU institutions and bodies involved in decision-making processes and the legislative, executive and juridical procedures which characterize Community law and its implementation.

The Treaties establishing the European Communities have been revised several times through:

  • the Single European Act (1987),
  • the Treaty on European Union – ‘Maastricht Treaty’ (1992),
  • the Treaty of Amsterdam (1997),
  • Treaty of Nice (2000)

Evolution of consumer protection in European Communities’ primary law may be described as a way from treating it as a “by-product” of common market creation and protection of competition to creation of independent policy of consumer protection.

Nonetheless it’s necessary to admit that even before the first long term plan on consumer protection, consumers were not completely absent from the Treaty of Rome.

As stated in preamble to the treaty establishing the European Economic Community one of basic aims of Community was constant improvement of the living and work conditions94. The same principle was confirmed in article 2, of the same treaty, which included among tasks of the Community harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, and accelerated rising of the standard of living95.

Also article 39 of the Treaty of Rome96 contained a direct reference to consumers, namely it stated that one of objectives of the common agricultural policy is to ensure that supplies reach consumers at reasonable prices.

Finally article 85 (3)97 of the Treaty in dealing with rules on competition made authorization for certain agreements between undertakings subject to the consumer receiving “a fair share” of the resulting benefit, while article 8698 enumerated as an example of dominant position abuse limiting production, markets or technical development to the prejudice of consumers.

The Single European Act, which entered into force on 1 July 1987, introduced directly the notion of the consumer protection into the Treaty: Article 100a99 entitled the Commission to propose measures designed to protect consumers, taking as a base a “high level of protection”. Even though this notion has not been precisely defined, this article provided the foundation for a legal recognition of consumer policy. Moreover the Single Act repealed the unanimity rule for the adoption of directives in numerous areas directly or indirectly having to do with consumer protection.

Treaty of Maastricht (1992) introduced as point “t” of article 3 of the Treaty, consumer protection as one of Communities’ policies what meant that this protection became an independent aim of Communities, as such, it may inspire specific actions of Communities.

Thus after the Treaty of Maastricht development of consumer protection takes place not only due to actions for development of common market but also through independent actions aiming Member States’ policies to: health protection, protection of consumers’ economic interests and providing them with information.

Even grater impact on consumer protection law had Treaty of Amsterdam (1997)

Due to its regulations consumer protection policy finally became an independent policy of the EU, it’s reflected in changed text of article 153.1

Changed point 2, of the same article, introduces another important change in the approach to consumer protection – it introduces a clause obliging authorities to consider interests of consumer in course of other policies implementation, Article 153.3 extended means which may be used in creation of consumer law from special actions to use of obligatory means. Finally this article introduces also monitoring of policies pursued by Member States (in context on consumer protection)

So far, final changes to Treaties were done by, the Treaty of Niece (2000). However in the field of consumer law they were not significant being limited to the structure of Economic and Social Committee (by adding to its members representatives of consumers).

SECONDARY LEGISLATION

Secondary legislation is based on the Treaties and implies a variety of procedures defined in different articles thereof. Secondary community law, accordingly to article 189100, may take the following forms:

  • Regulations which are directly applicable and binding in all EU Member States without the need for any national implementing legislation,
  • Directives which bind Member States as to the objectives to be achieved within a certain time-limit while leaving the national authorities the choice of form and means to be used. Directives have to be implemented in national legislation in accordance with the procedures of the individual Member States,
  • Decisions which are binding in all their aspects for those to whom they are addressed. Thus, decisions do not require national implementing legislation. A decision may be addressed to any or all Member States, to enterprises or to individuals,
  • Recommendations and opinions which are not binding.

Preamble to the Treaty Establishing European Community presents as an essential objective of Communities, efforts for constant improvement of the living and working conditions of their peoples. This objective was farther confirmed in article 2 of the Treaty.

Consequently, it could be said that all activities of European Communities’ authorities ought to be at least indirectly aimed at improvement of consumers situation.

However in creation of consumers protection, the most important role is played by directives aimed to approximation of law, their character is regulated by article 249 of the Treaty stating that A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.101

That is why very important part in shaping directive implementation is played by ECJ, whose strict jurisdiction strongly discourages Member States from exercising excessive liberty in their choice of implementation’s method.

Relatively early, ECJ found out in case Grad v. Finanzamt Traunstein (C 9/70) that a directive could be directly effective.102 However to be directly effective directive must satisfy certain criteria for direct effectiveness of its provisions, namely: they must be sufficiently clear and precise, unconditional, leaving no room for discretion in implementation. Moreover directive cannot be directly effective before the time-limit for their implementation is up, while on the other hand fact of its implementation does not deprive directive of its direct effectiveness.103

So directives bind Member States as to the objectives to be achieved within a certain time-limit while leaving the national authorities the choice of form and means to be used. They have to be implemented in national legislation in accordance with the procedures of the individual Member States. However as practice proves implementation usually takes form of simple adaptation of a directive. Though situation varies depending on the period when directive was enacted. Directives enacted after 1985 are not so specific and in implementation live much greater freedom to Member States.104

There are many possible ways of classification directives affecting position of consumers on a market. W. Szpringer distinguishes within European Law five basis of consumer protection:

  1. General rules of private or public law, for instance administrative or judicial resolution of disputes (provided that these rules were already approximated, because in this area law of Member States still prevails),
  2. Rules of competition law stated in the Treaty of Rome – articles 81 and 82 (ex articles 85 and 86) and acts of Secondary Legislation,
  3. Rules of “general” consumer protection (unfair terms in consumer contracts, misleading advertising, distance contracts, etc…),
  4. Rules concerning some specific goods (toys’ safety, cosmetics, foodstuff, etc…),
  5. Rules concerning some specific services like for instance consumer credit, e-money, etc…

He also suggests another classification based on criterion of law institutions constituting a full cycle of consumer protection. Within these institutions he differentiates between protection: ex ante – safety standards, consumer information, concessions, etc…, and ex post – systems of warranty in banking, insurances, .… 105

Prof. Dauses classifies almost all consumer directives as belonging to one of two categories; protecting economic interests of consumers or aimed at protection of consumers’ health and safety106

In my opinion the most satisfying is division presented in Commission in Green Paper on Consumer Protection107, where Commission states that EU consumer protection directives fall into four broad categories.

Directives providing general rules of consumer protection – to this category belong: Directive on Misleading Advertising , as amended by Directive on comparative advertising. Directive on price indications. Directive on unfair terms in consumer contracts. Directive on the sale of consumer goods and associated guarantees.

Rules on sectors and selling methods – Directives on foodstuffs, cosmetics, textile names, medicinal products for human use, package travel, contracts negotiated away from business premises, consumer credit, distance selling contracts, measuring instruments and timeshare.

Enforcement – Directive on injunctions108.

As a forth category it distinguishes EU legislation, which does not have consumer protection as its primary purpose, provides for some consumer protection or regulates the power of national authorities to introduce consumer protection regulations. For example the e-commerce directive109 covers advertising and marketing to consumers by information society service providers. The television without frontiers directive110 that also coordinates certain aspects of commercial communications through broadcasting means. It provides for a uniform high level of protection, application of the country of origin principle, precisely defined common definitions and clear enforcement requirements.

The same Green Paper, rather negatively evaluates current situation. Existing EU consumer protection directives, when compared to national regulation, do not constitute a comprehensive regulatory framework for business-consumer commercial practices, the central aim of consumer protection.

Also some of the directives, notably the sector-specific ones, have developed as a very detailed response to specific identifiable problems at a particular moment in time. This approach, combined with the long period between the proposal and implementation of EU measures, for example the distance selling directive was proposed in June 1992 but was not due to be implemented until June 2000, has guaranteed a certain level of obsolescence as market practices have moved on.

What must be admitted is that the interaction between the EU consumer protection rules and the other measures cited has created a regulatory framework which is complicated and difficult to understand for business and consumers.111

As a remedy Commission suggests one framework directive regulating consumer law. However due to aforesaid long period between the proposal and implementation as well as significant disparities between Member States regulations future of such directive is at least unsure.

Extremely important question arising in the context of implementation of directives creating consumer law into Member States’ legal systems is if directives create minimum standard of consumer protection, in consequence whether Member States may introduce higher level of consumer protection or not. This matter could be as well discussed here although, because this matter requires analyzation of multiple examples of ECJ’s jurisdictions I’ve decided to place in the chapter concerned with standards of customer.

Implementation of European consumer law into the Polish legal system.

It would be highly unjust to say that before December 1991 and before there was no consumer protection in Poland. Nevertheless its level when compared with this offered to consumers in Member States was incomparably low. While Communities’ law developed over a span of several decades than Polish aspiration to accession made it necessary to pass the same way in much shorter time.

Obligation to adjust Polish law to European standards results from, signed on 16 December 1991, European Agreement of Association, or to be more exact its chapter III (articles 68-70). While article 68 obliges Poland to approximate its legal system to European Community legislation, article 69 enumerates among others branches approximation of consumer law.

Such approximation means not only acceptance of primary and secondary law but of all the aquis communautaire, what appears to be more difficult and while literally Polish law is rather consistent with Communities’ directives than practical application of law is still far from being satisfactory, what has been noticed by some of the reports prepared by Commission.112

Polish legislative achievements, at least when it comes to numbers are indeed astonishing. The year 2002 brought 17 volumes of the Journal of Laws of the Republic of Poland (Dziennik Ustaw), 241 its numbers, 2098 legal acts and 16 020 pages of text. The year 2003 also brought a significant amount of legal acts – most of them aimed at approximation of Polish law to the standards of European Union. Parliament passed till November 2003 almost 200 statutes, in Poland at average once a day was passed a new statute, every hour a new decree, and once every seven minutes another page of the Journal of Laws of the Republic of Poland (Dziennik Ustaw) was being printed. As many specialists say – this amount of new legislation is inversely proportional to quality of new acts.113 Considering this, quality of implemented consumer law is surprisingly satisfactory – to a large extend due to the fact that many acts implementing European rules use directly provisions contained in directives. The work done so far was immense. In 1998 parliament passed only 10 acts what was strongly criticized by EU, however from he year 1999 situation significantly improved – this year brought 28 acts during years 2000-2001 128 acts and consequent 64 in year 2002. Government prepared till October 2003 50 projects of acts approximating Polish law to the Community law and another 30 were anticipated till the end of the year. Currently Sejm’s European Commission works on 86 draft acts implementing EC law114

This progress is reflected in 2002 Regular Report on Poland’s Progress Towards Accession. It says among others that:
In its 1997 Opinion, the Commission concluded that the level of consumer protection in Poland was insufficient and that Poland would need to make substantial efforts to update its legislation and bring it in line with the acquis. Considerable progress has been made since that time, and in particular over the last two years, especially with regard to ensuring that the necessary legislation has been adopted. Alignment with the acquis in the area of consumer protection is advanced and administrative capacity has seen a reasonable development.115

In the same report praised improvements in the market surveillance (The implementation of the Law on Trade Inspection together with the Law on General Product Safety), on the other hand reminding of the need to develop intensively the awareness of consumers as regards their rights and the principles governing the operation of the market.116

The last report, very critical in some areas, assessed rather positively implementation of Communities’ consumer law. Contrary to some area like for instance agriculture consumer protection law is very advanced and there is no risk of significant discrepancies at the moment of Polish accession117.

Consumer Protection in the Polish Constitution

Consumer protection in Polish constitution is only briefly mentioned in article 76 saying that: Public authorities shall protect consumers, customers, hirers or lessees against activities threatening their health, privacy and safety, as well as against dishonest market practices. The scope of such protection shall be specified by statute.

Accordingly to article 8.2 of the constitution – unless constitution provides otherwise its provisions are directly applicable although constitution’s article 81 enumerates article 76 amongst those which are not directly applicable. As E. Łętowska admits article 76 has too general nature to allow consumers judicial control of state authorities, on a sole basis of authorities’ negligence in performance of these provisions.

Consequently role of article 76 is limited; it would be however an overstatement to say that it is indifferent for the system of consumer law118. It may be used for a purpose of a particular case being used as a criterion of construing general terms contained in particular acts of secondary legislation relevant for the case.

Article 76 itself does not determine scope or contents of mentioned act; it does not bind legislator like in case of for instance political rights and freedoms. Still in case of consumer protection in the field of health, privacy, security and unfair market practices some obligations for legislator arise of Community law.

Contents, scope, axiology, even strategy of protection which are to be enacted in legislation must comply with existing already international obligations of Poland – it may be construed from articles 9 and 91 of constitution. Such obligations arise from mentioned before article 69 of European Agreement of Association.

Possible approaches of implementation

Two main possibilities in approximation of law governing consumer contracts are integration of this branch of low with civil law – what happens in Germany, or its autonomization – this option prevails in France where it is combined with placing of all provisions of consumer law in a separate code de consommation. In Poland implementation is closer to German approach, however while in Germany much greater part of norms is placed in BGB. In Poland Codification Commission decided to incorporate significant of norms into the Civil Code nevertheless in many cases, facing need of very detailed regulations decided to propose specific acts integrated with the Civil Code and constituting part of the civil law.119

As a strong argument against introduction of all new provisions concerning consumer sale must be concerned requirement of code’s stability. New regulation of this agreement introduces so important changes into traditional institutions of law that it is necessary to collect some experience, on the problem how they function in practice before deciding to introduce these changes into the Civil Code. That is why not only directive 99/44 but also directives 85/577 and 97/7 were implemented by separate acts (integrated nonetheless with the Civil Code). In the same way some of directives regulating consumer law were implemented in Germany and France.120

In approximation of consumer law important are particular acts. As I have written before – it is possible to divide acts creating consumer law into many categories – here I would like to concentrate only on acts which directly provide consumers with some rights or relate to e-commerce. The list presented below may be incomplete but it would be very difficult to cover all of the numerous acts of consumer law, however I’m strongly convinced that the most important ones are enumerated.

  1. Directive 85/374 – on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products
  2. Directive 85/577 – to protect the consumer in respect of contracts negotiated away from business premises,
  3. Directive 87/102/EEC – for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit,
  4. Directive 90/314 on package travel, package holidays and package tours,
  5. Directive 93/13 on unfair terms in consumer contracts,
  6. Directive 94/47/EC on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis,
  7. Directive 97/7 – on the protection of consumers in respect of distance contracts,
  8. Directive 98/6 on consumer protection in the indication of the prices of products offered to consumers,
  9. Directive 98/27/EC on injunctions for the protection of consumers’ interests,
  10. Directive 99/44 on certain aspects of the sale of consumer goods and associated guarantees,
  11. Directive 1999/93/EC – on a Community framework for electronic signatures,
  12. Directive 2000/31/EC – on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’),
  13. Directive 2000/46/EC – on the taking up, pursuit of and prudential supervision of the business of electronic money institutions,
  14. Directive 2002/58/EC on privacy and electronic communication,
  15. Directive 2002/65 – concerning the distance marketing of consumer financial services.

The most important is here Act on protection of some of consumers’ rights and liability for defective products of 2 March 2000 (Dz.U.2000.22.271) – it incorporates into the Polish legal system four Directives (as far as general consumer protection is concerned). These directives are:

  • Directive 85/374 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (however general rules on the liability for defective products has been placed in added to the Civil Code articles 4491 – 44911),
  • Directive 85/577 on consumer protection in respect of contracts negotiated away from business premises,
  • Directive 93/13 on unfair terms in consumer contracts (some regulations on unfair contractual place found their place in the Civil Code – articles 384–385) and
  • Directive 97/7 on the protection of consumers in respect of distance contracts.

At the time of entry in force of the draft act amending the act on protection of some of consumers’ rights, its scope of application will be extended also onto distance marketing of financial services, what means incorporation of the Directive 2002/65.121

Some of aforementioned directives were implemented by single acts concerned only with one issue. It was the case with Directive 90/314 on package travel, package holidays and package tours which has been implemented by the act on tourist services. This act was seriously criticized for its multiple shortcomings and providing level of protection lower from this offered by directive 90/314122. Nevertheless after numerous amendments it should be admitted that this act sufficiently protects consumers.

Also directive 94/47/EC on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis has been introduced to Polish legal system by the act on the protection of purchasers of the right to use a building or a flat during a fixed period every year introduced the idea of timesharing to Polish law; some provisions have been added also to the Civil Code (article 2701).

Another directive implemented by a single act is directive 87/102/EEC – for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit, which has been, rather satisfactorily, implemented by the act on consumer credit.

On the 1st of January 2003 entered into force act on special terms of consumer contracts and amendments to the Civil Code. Entry in force of this act meant very important changes to consumer transactions – most of all provisions on warranty (art. 556-581 of the Civil Code) do not apply any more to consumer transactions. On the other hand this act introduced the rule that goods delivered to the consumer must be in conformity with the contract, what includes among others compliance of goods wit the description. Very import for this thesis is idea that assessment whether goods comply with their description or not bases among others also on advertisements (article 4.3).

The same act implemented also provisions of Directive 98/6 on consumer protection in the indication of the prices of products offered to consumers – is article 2.1 regulates matter of presentation of prices in both place of sale and advertisements. Still some more general provisions on the indication of prices are contained in the older (entered in force on the 12 of December 2001) act on prices.

Very important for e-commerce directive 2000/31/EC – Directive on electronic commerce – has been introduced mostly by two acts – significant part of its provisions (especially these on concluding online contracts) has been incorporated into the Act on protection of some of consumers’ rights and liability for defective products. However provisions on providing information society services may be found in the act on providing services by electronic means; this act introduces also provisions of directive 2002/58/EC on privacy and electronic communication.

If it comes to approximation of provisions aimed at the protection of the collective interests of consumers – what covers with the scope of directive 98/27/EC on injunctions for the protection of consumers’ interests – it was achieved by amending act on protection of competition and consumers (by adding section IIIa – prohibition of practices violating collective interests of consumers) and enactment of the law on the Trade Inspection.

Directive 2000/46/EC – on the taking up, pursuit of and prudential supervision of the business of electronic money institutions has been implemented by recently entered in force act on electronic means of payment – some provisions on electronic money are placed also in the act banking law – articles 4 and 5.

Ongoing works of Sejm

The process of approximation of Polish law to the EU standards is by no means complete. Also within the area of consumer law, several acts are under being prepared. Probably the most important for the subject of this thesis are three of them.

Chronologically as first has been introduced draft act amending the act on the Polish language. The most important here are proposed changes amending articles 7 and 8 which were especially unfit for the purpose of the Common Market.

More recent is draft act amending act on protection of competition and consumers which for instance introduces into this act definition of a consumer consistent with this already introduced to the Civil Code.

The most significant for distance contracts will be the draft act amending the act on protection of some of consumer rights, which most of all incorporates into the Polish legal system directive 2002/65 on distance marketing of financial services.

However all the relevant amendments will be discussed along with the already enacted provisions. Generally it may be said that Polish consumer law, complies with the minimum standard set by EU directives, in some aspects providing consumers with a higher level of protection than minimum standard (for example time for withdrawing from a distance contract which is extended from 7 to 10 days). The last few changes will be introduced at the time of Poland’s accession to European Union – provisions containing vacatio legis till that moment may be found for instance in: the act on tourist services (Dz.U.2001.55.578) also provisions on electronic money placed in the banking law and in the act on act on electronic means of payment will enter in force on the day of accession.