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Transparency

Introduction to transparency

In the Information Society, transparency and the provision of information to consumers will become increasingly important. The absence of direct contact between sellers and consumers will require an enhanced emphasis on the indirect provision of information to consumers. Fortunately, the Internet allows (technically speaking) for such intensified provision of information. What is extremely important is issue of particular regulations obliging suppliers to use those technical opportunities for the purpose of providing customers with information?

The requirement of transparency is well expressed in the OECD Recommendation Concerning Guidelines for Consumer Protection in the Context of Electronic Commerce, which says: Whenever businesses make information available about themselves or the goods or services they provide, they should present such information in a clear, conspicuous, accurate and easily accessible manner.123

There is opinion, that since directive 93/13124, in communities consumer law exists rule of radical transparency, what means that every information directed to the consumer must always be drafted in plain, intelligible language. Moreover a rule “in dubio contra proferentem”, shall be applied in case of contracts concluded with consumers, consequently where there is a doubt about the meaning of a term, the interpretation most favourable to the consumer ought to prevail.125

For the purpose of this chapter, I will split problem of plain and intelligible language into two issues: national language itself and transparency of information.

National language.

Languages of European Union

Right now in 15 Member States belonging to European Union, there are 12 official languages: Danish, Dutch, English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish and Swedish which accordingly to article 314 (ex 248) of Treaty establishing the European Community, are deemed to be authentic languages of aforementioned Treaty.

Due to article 21 (ex article 8d) of the same Treaty every citizen of the Union may write to EU authorities in any of those languages and have an answer in the same language. Although Irish wasn’t included amongst official languages of the Community (thus there is no obligation of translating all Community’s documents to Irish).

As Eurobarometr’s researches encompassing a group of about 15 thousand people in all fifteen countries revealed that almost half of EU citizens, at the beginning of the year 2001, knew only their mother tongue. However situation greatly differs between Member States the best was in Luxemburg and the worst in United Kingdom. While 51% of Frenchman, 53% of Spaniards, 56% of Portuguese and most of all 66% of Britons declared monolingualism, than only 2% of Luxembourg’s habitants and less than 15% of residents of Sweden, Denmark and Holland acknowledged the same.

Among languages learned within EU as second the most popular is known by 41% English, Slightly less than one in fifth Europeans speaks French, one in ten proclaims commend of German and 7% speaks Spanish.126 This popularity of English is reflected by the percentage of webpages in this language. Despite Commission’s initiative, ‘eContent’,(aimed at ensuring that content and information on the net is available in residents’ own language), 75% of all pages on the World Wide Web are in English127.

General rules on language.

Right now EC law in that field is very inconsistent. Such situation results partly from the variety of domains covered (foodstuffs, cosmetic products, package holidays, toy safety, financial services, etc) and partly from the fact that too high requirements in that area could be considered a barrier to the free movement of products or services.

Depending on the subject matter in question and the objectives envisaged, the provisions of existing Community legislation are very diverse. In some cases the wording explicitly specifies the use of languages. This is the case with wine, the placing on the market of medicinal products, and tobacco labelling. In other cases the wording requires Member States to lay down rules. This is the case with foodstuffs labelling and nutrition labelling, which must be provided in a language “easily understood” by the buyer. In some cases the question of languages is not mentioned at all (e.g. misleading advertising, consumer credit), or it is left up to Member States to impose language requirements (e.g. toy safety, cosmetic products). Nonetheless even in Commission’s communications may be found opinion that it would be highly advisable to assume more systematic approach in that field128.

Language requirements in secondary law

The tradition of regulation in this area is oldest and richest in the field of foodstuffs, relatively early (1979) it was regulated by a Council Directive 79/112, its article 14 stated that:
…The member states shall , however, ensure that the sale of foodstuffs within their own territories is prohibited if the particulars provided in article 3 and article 4 ( 2 ) do not appear in a language easily understood by purchasers, unless other measures have been taken to ensure that the purchaser is informed. This provision shall not prevent such particulars from being indicated in various languages.

Although directive 79/112 has been derogated by directive 2000/13 the sense of provisions concerning language remained unchanged, it could be hardly argued that current article 16 is more precise and unambiguous129.

Surprisingly many directives do not mention the question of language which should be used in communication with consumers. Below I’ll enumerate just a few of acts which would protect consumers’ interests much better, had they eliminated uncertainty as to the question of language consumers ought to be informed in.

First of all there is no mention of language in directive 85/577/EEC on consumer protection in respect of contracts negotiated away from business premises. It is especially surprising if to consider that the purpose of this directive was not only to protect consumers in respect of so called “doorstep selling” but as it expressly says in article 1 it applies also to contracts which are concluded during an excursion organized by the trader away from his business premises. Such excursions by no means are limited to area of consumer’s own Member State, what means that consumers face risk of being mislead by terms of a contract or product description in a language unknown to them.

Consumers’ position would have been improved if Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts regulated this question. Unfortunately its article 5 says only that terms must always be drafted in plain, intelligible language what, in my opinion, cannot be construed as requirement of providing consumer with information in his national language.

Council directive 92/59/EEC of 29 June 1992 on general product safety also hasn’t cover this issue130.

Rather surprisingly there is no mention of language in directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit.

The last position on this list is occupied by directive 90/314/EEC on package travel, package holidays and package tours – it also doesn’t mention language at all.

Relatively late (1993) Commission tried to work out a unified conception of development consumer law concerning language of consumer information. Some of the most important element of this guidelines included:

  • encouraging multilingual information;
  • preserving the freedom of Member States to require use of the language of the country of consumption;
  • improving the consistency of the Community legal instruments in regard to the use of languages in the domain of consumption;
  • improve information of the Commission, the Member States and the operators on the applicable language rules;
  • assign responsibility to the economic operators (producers, distributors)131.

What must be admitted is that much more of directive concerning consumers passed after 1993 encompassed the issue of consumer information language. Arguably the most important among them is directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees, in article 6.4 it provides that within its own territory, the Member State in which the consumer goods are marketed may, provide that the guarantee be drafted in one or more languages which it shall determine from among the official languages of the Community.

Another examples are: Directive 88/378/EEC on the safety of toys and Directive 94/47/EC on timeshearing.

Article 11.5 of directive 88/378, provides that Member States may require that the warnings and indications of precautions to be taken during use that have to be given for certain toys (described in the Annex IV of the directive) be given in their own national language or languages when the toys are placed on the market.

Directive 94/47 as the only one of directives regulating consumer transactions not only leaves a significant freedom to member states but actually obliges them to introduce some minimal level of consumer protection in the field of language. Article 4 of this directive oblige member states to ensure that the contract as well as obligatory information about the property in question are drawn up in the language or one of the languages of Member State in which the purchaser is resident or in the language or one of the languages of the Member State of which he is national which shall be an official language or official languages of the Community, at the purchaser’s option. Vendor additionally ought to supply purchaser with a certified translation of the contract in the language or one of the languages of the Member State in which the immovable property is situated.

As I have already mentioned there are also another directives referring to language regulating such issues as for instance: tobacco products, medicines, alcohols, etc… however this issues are too detailed to present them here. So I’ll move to regulations specific for online transactions.

Language requirements in light of ECJ’s judgements

Before moving to solutions specific to electronic transactions, I would like to sacrifice a while to judgements of ECJ concerning question of language easily understood by consumers. Unluckily so far there are no judgements based on directives regulating e-commerce, however despite significant differences (which I’ll indicate later on) between consumer information in traditional trade and online the following overview of ECJ’s approach to this matter will be useful.

As I’ve already said the first example of regulating the question of language of consumer information may be found in directive 79/112/EEC (on presentation and advertising of foodstuffs for sale to the ultimate consumer)132 so not surprisingly also the first judgements concern this directive (in particular article 14).

First attempt of defining language easily understood by the customers may be found in case Piageme and others v BVBA Peeters. The problem concerning language arose in the context of proceedings between on the one hand the Association des Producteurs, Importateurs et Agents Généraux d’ Eaux Minérales Étrangères (PIAGEME), the Société Générale des Grandes Sources et Eaux Minérales Françaises (SGGSEMF) and the Évian, Apollinaris and Vittel companies (“plaintiffs in the main action”), who imported and distributed various mineral waters in Belgium, and on the other hand Peeters, a company established in the Flemish-speaking region of that country where it sold those mineral waters in bottles labelled only in French or in German.

In this case the court decided that the only obligation, laid down by article 14 of directive 79/112/EEC, is therefore to prohibit the sale of products whose labelling is not easily understood by the purchaser rather than to require the use of a particular language.

Imposing a stricter obligation than the use of a language easily understood, that is to say for example the exclusive use of the language of a linguistic region and, on the other hand, failing to acknowledge the possibility of ensuring that the purchaser is informed by other measures, goes beyond the requirements of the directive (C-369/89).

As Advocate-General stated in his opinion the reference to comprehensibility of the language is aimed less at linguistic comprehensibility as such than at ensuring that the actual content of the particulars on the label can be deciphered. Maintaining that approach, it will then have to take into account not only any possible multilingualism in the country but also, in particular, the nature of the product and consumers’ familiarity therewith, as well as the existence of other packaging of the same product which may carry the required particulars in a more accessible language, thus allowing a sort of translation by approximation.133

As E. Łętowska says – this judgment was strongly criticized as insufficiently protecting consumers’ right of information134. Also Advocate General in his opinion to case C-51/93 revokes two distinctly negative repercussions of Piagene.

In 1992 the European Parliament adopted a Resolution on consumer protection and public health requirements in the internal market in which it stated inter alia that “consumers will enjoy proper protection only if all information is always available in their own language”.

In 1993 Mr Bangemann, a Member of the Commission, stated in answer to a question from Members of the European Parliament: “The Commission is therefore currently considering the conclusions to be drawn from the judgment” in Piageme. He declared: “The national language(s) of the country where the product is marketed may be regarded as the most objective common denominator as regards the comprehension of the information to be provided to the consumer. The principle of the above ruling therefore cannot be extended to sectors other than foodstuffs. Furthermore, consideration should be given to whether the requirements that the official language should be used not only as regards foodstuffs but to all information which it is in the general interest to communicate to the consumer”135

ECJ in 1995 had one more opportunity of addressing not only the same issue but even between the same parties. And despite previous criticism once more declared that notion language easily understood by customers doesn’t have to involve national language (Case C-85/94(Piageme II).

Court held that the expression “a language easily understood” used in Article 14 of the Directive is not equivalent to “the official language of the Member State” or “the language of the region”. It is designed to ensure that the consumer is provided with information rather than to impose the use of a specific language.

The ultimate consumer is not necessarily the person who purchased the foodstuffs and thus consumer protection is not ensured by measures other than labelling such as, for example, information supplied at the sales point or as part of wide-ranging advertising campaigns.

Still it’s enough if all the compulsory particulars specified in the Directive appear on the labelling in a language easily understood by purchasers or by means of other measures such as designs, symbols or pictograms.

ECJ revoked various factors which may be relevant, the possible similarity of words in different languages, the widespread knowledge amongst the population concerned of more than one language, or the existence of special circumstances such as a wide-ranging advertising campaign or widespread distribution of the product, provided that it can be established that the consumer is given sufficient information(Case C-85/94(Piageme II)).

Despite Piageme II situation is changing towards informing consumers in their own language. Not only article 16 of Directive 2000/13 explicitly allows member states to introduce obligation of informing consumers in one or more language(s) determined from among the official languages of the Community. Also judgments preceding entry in force of those directive show changed view.

As a signum temporis one could bring case C 389/96. In this case the court declared that placing in the shop of a supplementary sign adjacent to the product in question is not sufficient to ensure that the ultimate consumer is informed and protected. While this itself in the context of “ultimate consumer” notion shouldn’t arose any surprise, than what’s in my opinion most important is what the court didn’t say. And it omitted completely to address very important circumstance presented by defendant: the decisive factor was the intelligibility of the labelling; and that, in the case of products which were well known to the public, the use of labelling in a foreign language did not adversely affect the consumer’s interest in receiving information. What meant, silent cutting off from principles worked out in both Piageme cases like for instance referring to the nature of products or translation by approximation (C 385/96).

In another, even more favourable for consumers judgment C 33/97, passed almost a year later on 3 June 1999, ECJ represented similar spirit. Court in this judgment declared not only that it is necessary to distinguish between the obligation to convey certain information about a product and the obligation to give that information in a specified language; also that a national measure imposing language requirements must, in any event, be proportionate to the aim pursued and a measure requiring the use of a language which consumers can readily understand must not exclude the possible use of other means of informing them, such as designs, symbols or pictograms.

On the other hand there are many points in that judgment which represent new quality. As a starting point the court took assumption that, information is of no practical use unless it is given in a language which can be understood by the persons for whom it is intended for certain categories of product. It distinguished two situations.

In case of full harmonization of the language requirements applicable for a given product, the Member States cannot impose additional language requirements.

But in the absence of full harmonization of language requirements applicable to information appearing on imported products, the Member States may adopt national measures requiring such information to be given in the language of the area in which the products are sold or in another language which may be readily understood by consumers in that area, provided that those national measures are non-discriminatory and proportionate. They also must be restricted to information which the Member State makes mandatory and which cannot be appropriately conveyed to consumers by means other than translation (C 33/97).

Important role in declaring ECJ’s principles has judgment C-51/93. I have significant doubts if E. Łętowska is right considering this judgment to be ECJ’s “reaction to criticism which burst out after Piageme136.

It’s true that the court in C-51/93 held the Council has not exceeded the limits of its discretion in the framework of its powers of harmonization by requiring, in the explanatory note in column (c) of Annex I to Directive 69/493 on the approximation of the laws of the Member States relating to crystal glass, for products in categories 3 and 4 (crystallin and crystal glass), that not only description in the language of the country in which the goods are marketed must be used, but also, no other description may be used.

It declared that while such a requirement constitutes a barrier to intra-Community trade in so far as products coming from other Member States have to be given different labelling causing additional packaging costs, it is justified by considerations relating to consumer protection since, for the two categories of glass in question, which are lower categories than full lead crystal and lead crystal, the difference in the quality of the glass used is not easily discernible to the average consumer and it is therefore necessary for him to be given the clearest information possible as to what he is buying so that he does not confuse a product in categories 3 and 4 with a product in the higher categories and consequently that he does not pay too much (Case C-51/93).

But it must be remembered that in the same judgment the court upheld legality of labeling products belonging to categories 1 and 2 in any language used in Community as sufficient for the purpose of informing customers in any member state As I’m convinced this judgment could be seen not as a departure from principles presented in Piageme but rather as explanation of unique situation justifying, in this particular situation, serious limitation to usual freedom of multilingual labeling.

Language in online transactions:

Traditionally entrepreneurs were selling cross-border, now development of e-commerce combined with introduction of a common currency enables consumers to purchase from abroad. All of the judgements presented above were issued before the rapid development of e-commerce and as such they may (and are) helpful in answering questions concerning online trade, nonetheless they cannot answer all important questions; especially these related to transactions belonging to the second category. Currently great majority of consumer transactions is still concluded within one member state, nevertheless we can expect significant increase of cross-border transactions. Such transactions will involve numerous problems – for example if online seller is obliged to inform consumer in his national language or its enough to fulfil requirements of member state he’s established in?

Before making any attempt of providing universal answer to this question I’ll deliver a short overview of secondary legislation regulating the field of consumer online transactions.

As I’m convinced it’s justified to start analyzation of EU secondary law from the directive 2000/31 as it is the only act applicable to virtually every transaction concluded online. Its provisions, in that field, are quite limited. Article 10.1.d obliges Member States to ensure that service providers prior to the order being placed in consumer transactions give information about languages offered for the conclusion of the contract.

Article 16.1 imposes upon Member States and Commission obligation to encourage drawing up of codes of conduct at Community level, by trade, professional and consumer associations or organisations, and rendering their electronic versions accessible online in the Community languages. Provisions of the directive on e-commerce are supplemented by other acts on consumer protection in respect of distance contracts. As directive 85/577 is definitely not applicable for the purpose of such transactions than dependently on the subject of a particular transaction applicable is either directive 97/7 on the protection of consumers in respect of distance contracts or directive 2002/65137 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC.

To the most of online transaction will apply directive 97/7, however the only reference to the matter of language may be found in directive’s preamble which (in point 8) states that the languages used for distance contracts are a matter for the Member States.

Provisions of directive 2002/65 (concerning the distance marketing of consumer financial services) are more complex, accordingly to its article 3.3.g: in good time before the consumer is bound by any distance contract or offer, he shall be provided with the information in which language, or languages, the contractual terms, conditions, and the other required information are supplied, and furthermore in which language, or languages, the supplier, with the agreement of the consumer, undertakes to communicate during the duration of this distance contract. Though, what must be considered is point (31) of the preamble which states that: the provisions in this Directive on the supplier’s choice of language should be without prejudice to provisions of national legislation, adopted in conformity with Community law governing the choice of language.

Finally it is reasonable to mention another two directives important for functioning e-commerce: directive 1999/93/EC on a Community framework for electronic signatures and directive 2000/46/EC on the taking up, pursuit of and prudential supervision of the business of electronic money institutions. While the former obliges certification-service-providers issuing qualified certificates to inform a person seeking a certificate, about the precise terms and conditions regarding the use of the certificate using: readily understandable language, though without precise requirement as to the national language that ought to be used, the later does not contain any provisions relating to language.

Than is entrepreneur obliged to provide information in consumer’s national language or not; alternatively is it enough for an online seller to fulfill requirements of the state he is established in – whatever they are?

The easiest solution would be to refer only to the e-commerce directive – the only obligation it imposes is provision prior to the order being placed of information about languages offered for the conclusion of a contract.

Reference only to directive 2000/31 cannot be satisfying at least for one reason138 – it was written not only for the purpose of regulating consumer transaction and expressly states in point (11) if the preamble: This Directive is without prejudice to the level of protection for, in particular, public health and consumer interests, as established by Community acts. However doubtful is how ought to be construed article 1.3 of the directive139 as clearly there is in this case a disparity between consumers interests and the freedom to provide information society services.

In my opinion application of country of origin rule should prevail; there are at least a few arguments for that:
- First is analogy with travelling to another member state for the purpose of making purchases – purchasing by means of an interactive website from another member state constitutes a form of a (very convenient) travel. And definitely there is no duty to provide foreign customer service in his own language. Moreover a circumspect customer ought to be aware of the risk of incomprehension connected with making purchases in a foreign language.
- Continuing previous argument – directive 85/577 even in case of excursions organized by the trader for the purpose of encouraging consumers to purchasing goods in another member state did not impose any obligation relating to the language of information the should be provided with.
- Obligation of providing on a webpage information in 12 languages (probably soon in 20 or so) definitely would contradict to rule of proportionality of means applied for the purpose of consumer protection and drastically would restrict the freedom to provide information society services. Moreover such a solution would clearly favour big companies which easily may afford to prepare multilingual webpages, what’s impossible for small and medium enterprises.
- It could be argued that habitual for Internet is providing information in English (about 75% of all pages on the World Wide Web are in English140), and providing consumers with information in this language is sufficient.141
- Finally, in many cases seller does not know from which member state consumer comes from, the problem would be even grater as the new Regulation 44/2001 with the requirement set down in Art 13 of the Brussels Convention (“the consumer took in that State the steps necessary for the conclusion of the contract”) what means that consumer may conclude transaction in other state than his own.142

It would be the most reasonable to let entrepreneur provide information in his own language and leave the consumer freedom to choose whether he wants to enter transaction or not. Reasonable compromise between interests of consumers and entrepreneurs may be found in Recommendation of the OECD Council Concerning Guidelines for Consumer Protection in the Context of Electronic Commerce, which states that where more than one language is available to conduct a transaction, business should make available in those same languages all information necessary for consumers to make an informed decision about the transaction.

In my opinion such solution is fair to both sides, and in case consumer would make a mistake he’s still protected by his right of withdrawal for a period of at least seven working days.

Polish law on language applicable to consumer information.

General provisions and language regulations in Polish consumer law

Article 27 of Polish Constitution says that: Polish shall be the official language in the Republic of Poland. This provision shall not infringe upon national minority rights resulting from ratified international agreements.143 The specific solutions for bringing this rule into effect are contained in statutory law.

Article 661§2.5 of the Polish Civil Code, makes it obligatory, for an entrepreneur placing an offer by electronic means or electronically inviting to negotiations or placement of such offers, to provide the other party with unambiguous and understandable information in which language, or languages the contract may be concluded.

Chronologically first regulation containing provisions on the language which should be used in consumer contracts was Cabinet’s Decree on the terms of concluding and performing contracts of sale of movables with participation of consumers (Dz.U.1995.64.328). Its § 7.1 provided that goods designed for retail ought to be permanently marked with information in Polish sufficient to allow consumer for a proper and full usage of goods.

Also derogated Cabinet’s decree on specific terms of concluding and performing contracts of sale between entrepreneurs and consumers (Dz.U.2002.96.851) required in §7.4 that information about goods should be delivered to consumer in Polish, in a clear, comprehensible and not misleading for consumers way.

This requirement of providing consumer with information in Polish has been maintained in the act on special terms of consumer sale, its article 3 obliges entrepreneur selling in the Republic of Poland to provide purchaser with clear, comprehensible and not misleading information in Polish. Such information must be sufficient for full and proper usage of consumption goods.

Furthermore the act on general safety of products (Dz.U.2000.15.179), implementing into the Polish legal system Council Directive 92/59/EEC of 29 June 1992 on general product safety requires that producers inform consumers as well as sellers about multiple features concerning safety of products and that this information ought to be formulated in Polish and in clear and comprehensible manner.

The issue of language has not been mentioned in the act on protection of some of consumers’ rights and liability for defective products – at the same time directive 97/7 implemented by this act in recital 8 of the preamble says that the languages used for distance contracts are a matter for the Member States.

Rather questionable is opinion expressed by E. Łętowska who maintains that while the legislator for the obvious reason did not regulate the question of language used in entrepreneurs’ communication with consumers it is obvious that it must be Polish, and supports this opinion by the fact that this act belongs to the Polish legal system.144

I am not sure if the legislator’s silence could be interpreted in so unambiguously unfavourable for service providers way. The act in question applies also to transborder transactions and assuming that in every situation the service provider is required to inform consumer in Polish may constitute rather too rash conclusion.

More complex argumentation may be found in article written by W. Kocot145. In his opinion the duty of providing consumers with information in Polish results from two reasons. First is the requirement of providing consumer with comprehensible and easy to read information (article 9.2 of the act), the other argument arises of the act on the Polish language (Dz.U.1999.90.999). W. Kocot from this two acts draws conclusion that not only the contracts itself, but also all the pre-contractual information as well as the mentioned in article 6.2 animus contrahendi should be provided to consumer in Polish.

The act on protection of some of consumers’ rights and liability for defective products is not the only one of the core of Polish consumer law regulations which does not regulate the question of language – this problem is omitted also in act on tourist services, act on prices and in the act on consumer credit.

Such provisions may be found however in the act on timesharing which requires that the prospectus mentioned in the article 2.1 of this act must be written in the official language of the customer State of domicile or citizenship, however if the potential purchaser is domiciled in Poland the prospectus ought to be written at least in Polish.

As writes E. Łętowska – requirements concerning language may be also influenced by customs, and in her opinion in Internet customary is using of English146 (75% of all pages on the World Wide Web are in English147)

Law on the Polish language.

Introduction

Besides already mentioned acts, the most significant single source of regulations on language use in online transactions is the Law on the Polish language of the 7 October 1999, especially its articles 7 and 8.148

Article 8 describes situations, when parties to legal transactions are obliged to draw their contract in Polish. While the term “drawing a contract” usually means creation of a written document containing its terms, art. 8 should not be understood as introduction of obligatory written form of a contract every time exist prerequisites of article 8. This provision rather ought to be construed as requiring drawing such a contract in Polish when parties decide (or must due to other norms) prepare it in writing.149 Problem with transactions concluded by means of a webpage results from the fact that construction of article 8 best fits to contracts prepared as a result of negotiation while the typical way for online conclusion of contracts is that purchaser sends an offer as a result of invitation to negotiations, and seller’s acceptance of such offer.

M. Spyra suggests that in such a situation requirement of being written in Polish applies to offer only, he justifies this approach saying that the art. 8 requires preparation in Polish of document determining terms of a contract and from this point of view declaration of will accepting this terms is of little importance.

The answer if this approach is applicable to online transactions is not obvious; it depends largely on the answer to the question who in transactions concluded by means of an interactive webpage place the role of offeror and who of acceptant – I have discussed this issue in the first chapter.

However, M. Spyra’s suggestion that then requirement of being written in Polish encompasses only an offer may be applied only if to consider entrepreneur’s declarations placed on a webpage as an offer – in such a situation consumer’s declaration of will expressing his acceptance does not influence the contents of agreement and requirement of performing it in Polish is not necessary form point of view of securing interests of Polish entities. On the other hand if to adopt (prevailing in doctrine) view that entrepreneur’s actions constitute an invitation to placing offers and it is consumer who makes an offer than opinion that only offer needs to be made in Polish will be unsustainable.

Applicability of the Law on Polish language requires cumulative existence of two requirements:
1) At least one of the parties must be a Polish entity,
2) Contract must be performed on the territory of the Republic of Poland.

Polish entity

The notion of Polish entity has been defined in the article 7.2 of the act. As Polish entity is treated:

  • Natural person domiciled in Poland,
  • Legal persons and other organisational entities conducting their activity on the territory of Poland150.

The act on the Polish language does neither contain definition of the term “place of residence” nor contains any reference to the other act.

The question of natural person’s domicile is regulated in articles 25-28 of the Civil Code, however it is not clear whether this provisions are applicable to the act on the Polish language which does not belong exclusively to the civil law. The domicile may be determined also on the basis of the Law on recordkeeping of population and identity cards (Dz.U.2001.87.960), The law on foreigners (Dz.U.2003.128.1175) and since the moment of Polish accession to the EU also The act on terms and conditions of entrance and residence of citizens of the European Union on the territory of the Republic of Poland (Dz.U.2002.141.1180).

While application of Law on Polish language to transactions conducted by citizens of Poland in most of situations is reasonable and contributes to increase in the safety of these transactions, it may cause some justified doubts if it really does not infringes interests of members of living in Poland minorities (as article 2 assures). The assumption that every natural person residing in Poland speaks Polish even now is not true, and is definitely not compatible with fundamental for European Union right of free movement of persons.

Difficult problems arise also in context of organizational entities, the Law on the Polish language does not define term “activity”; as a result it could be interpreted as covering any kind of activity from foreign entrepreneurs, through entities being active in fields of culture, charity, religion, ending on foreign intelligence services. Of course rational may be only much narrower definition.

In relation to foreign organizations (with and without the status of the legal person) logical would be narrowing down the scope of “Polish entities” to organizations maintaining on the territory of Poland created accordingly to Polish law organizational structures.151

Even such narrowing interpretation may have very peculiar consequences. There are opinions that, according to the Law on Polish language, contracts between for instance Philips’s headquarters in Holland and its Polish branch in Piła must be concluded in Polish even though the concern uses, as its working languages English and Dutch. Provisions of article 8 might be construed as obliging companies exporting goods to Poland to conclude contracts with their Polish partners in Polish, notwithstanding the fact that this are foreign companies (for example French concern L’Oreal supplying goods to Polish shops of the French network Geant).152

Again in the context of EU regulation 44/2001 on Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which will become directly applicable from the moment of Polish accession to the EU, it is not clear whether an interactive webpage may be considered as a branch of an enterprise – what would allow to qualify entrepreneur selling goods or services by means of such a webpage to Polish customers as a Polish entity within the meaning of the act on the Polish language.

Place of contract’s performance

The second circumstance necessary for application of the Law on Polish language to a contract is its performance on the territory of Poland. Despite its theoretical straightforwardness phrase: “a contract, to be performed on the territory of the Republic of Poland” proves to be ambiguous. Obligation to draw a contract in Polish is obvious in situation when performance of all parties takes place in Poland. However very often only one of the mutual performances takes place in Poland, also performance of every party may take place only partially in Poland finally Poland may constitute one of a few alternative places of contract’s performance. It is questionable whether obligation to use Polish encompasses all situations mentioned above. As M. Spyra writes, vagueness of article 8’s redaction allows for at least three possible interpretations.
- First – the most radical – that statutory prerequisite of drawing a contract in Polish is fulfilled when performance of at least one of the parties, even partially, takes place in Poland.
- More moderate interpretation assumes that distinguishing a performance which is characteristic for a particular contract – Law on the Polish language would apply when such a characteristic performance were to be fulfilled in Poland,
- Finally it may be assumed that this act may be applied only to this contracts performed entirely on the territory of Poland.

R. Dłuska and T. Komarnicki in their article maintain that when contract’s performance in any part takes place on the territory of the Republic of Poland the contract must be drawn in Polish – thus inclining to the first option.153 Their opinion however seems to be secluded. Refering to the second option– M. Spyra points out that in many contracts impossible is to indicate which performance is characteristic (like for instance in barter).

Application of the Law on Polish language only to this contracts which are entirely performed on the territory of Poland seems to best fulfil aims of this act. Also objective scope encompasses only conduct of legal transaction on the territory of the Republic of Poland, this notion has not been defined by the legislator, what may be assumed is that the act regulates only this legal relationships which have close connection with Poland. Such a relationship bases on two criteria: Polish subjectivity of participating entities and place of contract’s performance. What certainly catches attention here is fact that in case of subjectivity criterion sufficient for act’s applicability is that just one of the parties is Polish entity while there is no such restriction when it comes to the place of performance. As M. Spyra writes it may suggest that the Law on the Polish language applies only to these contracts which are performed entirely on the territory of Poland.

Online shopping & Law on the Polish language

In the practical application two main problems may be expected. First which contracts concluded online will come within the scope of article 7 and 8 of the law on Polish language. Second which webpages (if any) may be qualified as offers and advertisements brought into the conduct of legal transactions mentioned in article 7.1 – and as such being required to have at least version in Polish.

In reference to the first issue it is difficult to determine which contracts concluded online will fall within the scope of article 7. The most reasonable seems applying the rule of concluding contract in Polish only to this transactions which are performed entirely on the territory of Poland, what would exclude transactions concluded by Polish entities with service providers established in other States, as well as Polish entrepreneurs limiting their sale to other countries than Poland. This interpretation is justified in the light of the first sentence of article 7 – “Polish is being used in the conduct of legal transactions on the territory of the Republic of Poland” while transaction conducted with a foreign service provider obviously exceeds the Polish territory.

Partially helps to solve this problem amendment made to article 8 by the act on providing services by electronic means which lessens the sanctions as to the evidential value of a contract for providing services by electronic means, described in the Law on providing services by electronic means (Dz. U. Nr 144, poz. 1204), concluded with a service provider who is not a Polish entity. However while waving sanctions within the area of the civil law it does not affect the penal sanction contained in the article 15 of the law on the Polish language.

Even more problematic (as not covered by exception of article 8.3) in the light of the act on the Polish language is interpretation of article 7.4 – “Descriptions of commodities and services as well as offers and advertisements, in foreign language, brought into the conduct of legal transactions, mentioned in paragraph 1, at the same time must have version in Polish”. Technically contents of interactive online shops selling goods or services also to Poland ought to be considered as brought into the conduct of legal transactions within the territory of Poland however requiring from every entrepreneur who accepts among other orders from Poland that he prepares also Polish version of his online shop seems to constitute an excessive requirement.

Literal interpretation of these provisions at the same time could lead to conclusions unfavourable for both foreign service providers and Polish consumers. On the one hand it could be interpreted as obliging this service providers to provide also Polish version of information contained on their webpage (subject to condition that they sell goods or services also to Polish customers). On the other hand expression “Polish version” seems to be more reluctant from provisions of the OECD Guidelines for Consumer Protection in the Context of Electronic Commerce, which in part III.C require that where more than one language is available to conduct a transaction, businesses should make available in those same languages all information necessary for consumers to make an informed decision about the transaction. And covering also versions which do not provide all the necessary information in Polish.

I am strongly convinced that the only firm conclusion which could be drawn here is that this regulation is absolutely not Information Society proof, and requires significant modifications aimed at rendering it more clear and applicable for the purpose of the online transactions.

It is difficult not to agree with E. Łętowska who says that surprisingly unattractive from the viewpoint of function of consolidating and ordering seems to be the act on the Polish language – it does neither solve problems visible in ECJ’s judgments, nor introduces mechanisms securing certain informational standard applicable to different segments of the market.154

Proposed revisal of the law on Polish language

In September 2003 the Government of the Republic of Poland presented to the Sejm draft act amending the act on Polish language. Some of the proposed amendments are highly relevant for online transactions, which is intended to enter in force on the day of the accession of the Republic of Poland to the EU.

Article 1 in the suggested form will limit the scope of this act, within private law, only to consumer transactions and contracts of employment. Important changes are suggested also to article 7 and following.

Article 7 imposes obligation to conclude consumer contracts in Polish when two conditions are met: consumers is domiciled in Poland at the time of contract’s conclusion and contract is to be performed in Poland. New articles 7a and 7b precise the current contents of article 7.3-5. The most significant for online consumer transactions may be found in the proposed contents of art. 8.3 which allows to conclude a contract falling within the scope of art. 7 when consumer (being citizen of EU) expressly demands conclusion of a contract in different language than Polish (the only doubt arising of this provision is the ratio legis of limiting such possibility only to the citizens of the European Union)155.

However despite remaining doubts, the proposed version of the act on Polish language seems much more compliant with the standards of the European law.

Transparency in European secondary law.

For the purpose of determining standard of transparency in consumer transactions very important is aforementioned directive 93/13 which in article 5 says that: In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language. Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail.

Nevertheless it was just the first of numerous acts referring to transparency, below I will present just the most important of acts regulating this issue.

Directive 98/6/EC contains in Article 4 provision that the selling price and the unit price must be unambiguous, easily identifiable and clearly legible.

Another important for consumer law directive – 99/44 provides in article 6 that regulates the matter of information’s comprehensibility in guarantees. It says that The guarantee shall set out its content in plain intelligible language.

Finally I would like to present transparency requirements in three directive’s most closely related with online transactions.

Directive on e-commerce has two references – first of all in article 10 it obliges service providers to provide, prior to the order being placed by the recipient, information156 that are: clear, comprehensible and unambiguous. Moreover, what may be construed from the article 5, such information (in addition to other information requirements established by Community law) must fulfill three (specific to the Internet) requirements concerning accessibility – they must be accessible: easily, directly and permanently. These requirements are very important due to specificity of online transactions.

  • In my opinion, the first requirement – of easy accessibility applies to the technical form of data presentation. I would include here such qualities as: legibility of text, such placement of text that consumer is able to read it, as information on a webpage may take also dynamic form (for example text may be scrolling vertically or horizontally) some requirements typical for television will here apply – like for instance time of presentation sufficiently long to enable consumers to read such a text.
  • The most reasonable explanation of direct accessibility of information is that information must be either “one click” from a homepage or “one click” from the page presenting goods or services.
  • I’m convinced that the third requirement – that information must be accessible permanently may be fulfilled in at least two ways either by sending the consumer full text of required information by an e-mail (or enabling him to save such information in another way) or by enabling consumer to refer to such information by means of service provider webpage also after the conclusion of a contract. I think that it would be reasonable to interpret here the term “permanently” not literally as “for ever” but referring to practical purpose of such information.

However Directive on distance contracts requires not only that all the obligatory information must be given in a clear and comprehensible manner but also that they are provided in a manner appropriate to the means of distance communication used, still it must be admitted that directive 2000/31 protects consumers’ interests, in that field, more fully.

Directive 2002/65 in article 3.2 uses the same wording as directive 97/7 – declaring that: The information referred to in paragraph 1, the commercial purpose of which must be made clear, shall be provided in a clear and comprehensible manner in any way appropriate to the means of distance communication used.

On the other hand this directive significantly extends obligation to provide consumers with information “permanently accessible” – in article 5 it entitles consumers to request delivery of the contractual terms and conditions on paper, at any time during the contractual relationship.

Commercial communication.

Advertisements for the purpose of e-commerce are defined (under the name of commercial communications) in the article 2 of ‘Directive on electronic commerce’ as: any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity or exercising a regulated profession. Not considered to constitute a commercial communication under this directive is information allowing access to the activities of companies, organisations or persons (domain names or electronic e-mail addresses). Also not considered a commercial communication is communication relating to goods, services or image of the company, organisation or person compiled in an independent manner, particularly when this is without financial considerations.

Since commercial communications is a new concept in EC law on advertising, it is reasonable to bring this new concept into line with the existing definitions on advertising. The existing definitions of advertising influence the application of the concept of commercial communications and vice versa. Below I will present the definitions used in various directives.

First of all such a definition may be found in the Directive on misleading advertising, which in article 2 defines advertising as making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations.

Because one of the most often sought online are information and goods connected with health, of considerable importance will be solutions used in Directive on Advertising of Medicinal Products for Human Use, which contains a detailed description of advertising which includes for example also the sponsoring of scientific congresses and in particular payment of expenses by persons who are qualified to prescribe or supply medicinal products. Interesting are exceptions, not covered, for instance, are answers to specific questions about a particular medicinal (provided they are not accompanied by material of a promotional nature). Also factual, informative announcements, provided they do not contain product claims are also not covered. Neither are general statements relating to human health.

In this respect two different criteria are used. The first is the criterion of the definition of commercial communications, being a criterion that is not linked to the content of the information but to the way it is produced. The second is a criterion that is linked only to the content of the information.

All those exemptions are very important because due to great demand, numerous attempts of bypassing general bun on medical products’ advertisement, may be expected. This issue wasn’t so far considered by European Court of Justice in the context of online promotions. Some indication as to potential approach may be found in a Dutch case issued on 15 February 2000 in Utrecht157 Court held that information on Roche’s website on Xenical, a medicine against overweight, was only allowed if the consumer is not too swiftly linked to this site, i.e. not directly at the moment of consulting of Roche’s general site about overweight.

The importance of this decision shouldn’t be underestimated. It’s a precedent proving that having a website, accessible to the general public, with specific information about a medicine, is not in itself a contravention of the ban on public advertising for medicines. A precedent that could be extended also to another products.

Also Directive 98/43/EC on advertising and sponsorship of tobacco products defines advertising as any form of commercial communication with the aim or the direct or indirect effect of promoting a tobacco product, including advertising which tries to circumvent the advertising ban. Noteworthy in this respect is that the notion of indirect effect is not accompanied by restrictions as to the way in which the information is produced and therefore could also include statements that should not be considered as advertising in the sense of the directive on electronic commerce.

Case of Roche brings back the question whether a web site has to be considered a commercial communication. A recent decision by the Court of Appeal in Rennes158 (France) provides a possible rule of conduct. It was decided that a web site on which a bank offered credit solutions accompanied by examples of financing and a page of advertising for a credit card had to be considered a commercial communication. According to the Court of Appeal the Internet site constituted an advertising support, even though visitors to the site in question had to register first and chose deliberately to visit the site. According to the Court the essential criterion of an advertising support is that it can carry an advertising message, whatever form it takes. What deserves particular emphasis in courts argumentation is that the site was considered a commercial communication because it was aimed at promoting the commercial activity of the bank not by its very existence but also by its content.

Commercial communication & neutral information.

If the main advantage gained by consumers from participating in e-commerce is greatly increased access to information than the very quantitative increase of accessible information is not sufficient. Of great importance is quality of such information.

That’s why in the OECD recommendation found their place provisions that advertising and marketing should be clearly identifiable as such and that advertising and marketing should identify the business on whose behalf the marketing or advertising is being conducted where failure to do so would be deceptive.159

Directive on e-commerce imposes in, article 6, upon Member States obligation to establish some minimal information requirements commercial communications must fulfill – in fact is copies aforementioned provisions of the OECD recommendation requiring that commercial communications must be clearly identifiable as such and the natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable.

This directive adds also another two requirements concerning promotional offers and promotional competitions or games – they shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously.

Nonetheless it cannot be said that directive 2000/31 solves all the potential questions concerning the scope and nature of commercial communications.

It’s very unfortunate that currently there is no equivalent, within framework of rules determining the shape of webvertising, of article 10 of Directive 89/552 which states that: Television advertising and teleshopping shall be readily recognizable as such and kept quite separate from other parts of the programme service by optical and/or acoustic means.

It constitutes a very important problem – how to distinguish neutral information from an advertisement on the Internet. Issue is quite complicated - what should be noted is the fact that a webpage is not just a one page long leaflet displayed on a monitor screen. What it really is, is a complex set of various materials (text, graphic, sometimes also audio or even audiovisual) mutually complementary and linked to each other by means of hyperlinks.

Due to this complexity marking commercial communications out of this combination of information, comments, evaluations, reports, etc… amounts to much more difficult task than in case of traditional press. Consequently, in practice quite often it is virtually impossible to distinguish advertisements from other communications.

Solution which could be tempting due to its simplicity and ease of application is granting the status of commercial communication only to the first page (home page). Unfortunately such a solution does not find any rational justification. What entails necessity of looking for other solutions.

Besides webpages there are also other specific forms of advertisement, for instance so called banners placed on chosen webpages (used as links to information advertiser desires to familiarize potential customers with) another commonly used mean of advertising is direct mailing – so called spam.160

It is of key importance that consumers are acquainted with the nature of information they are confronted with. Is the information commercial or does it originate from independent sources? New technologies introduced many issues which require regulation

W. Szpringer in his book “E-commerce, e-banking – wyzwania globalizacji”161 enumerates multiple threats: remunerated search tools, website sponsorship, affiliation, meta-data, links, referrals-reviews. Below I’ll try to briefly describe the most important of these issues.

Generally speaking consumers looking for a particular information may use one of the two alternative ways. He may either use a portal (a web site that aggregates and organizes information about the content of other websites so user can easily find desired information, such aggregation takes form of hierarchically arranged catalog of links) or alternatively he may use a search engine (a mechanism for finding documents on the Internet, examples are Yahoo!, Alta Vista, Google).

Typical (and important) for webshopping are search methods that will lead to useful information, but more and more often search engines present results dependently on amount paid by the owner of a website indicated. Obviously this may be misleading for consumers who (unless informed otherwise) will expect that results are presented in order of currentness or relevance. With approval should be accepted more and more frequent practice of marking such links with a sign “sponsored link” or similar.

However such abuses of expected from an infomediary neutrality, may take even more subtle forms. For example Yahoo introduced fees not only for so called sponsored links but also for processing of a particular webpage (consisting in introduction of a particular webpage into a database containing keywords referred to during a search conducted by means of a search engine). Quite recently this method has been adopted also by the two most important Polish portals, Wirtualna Polska and Onet.

Another problem cause websites sponsored by companies. Since on the Internet it is rather difficult for consumers to establish whether they are dealing with objective information or information that has a commercial nature, extra safeguards are needed as to the identity of a sponsor of a site. On the Internet one can see more and more companies sponsoring sites. E.g. a producer of cosmetics can sponsor a site with information for teenagers and their problems. On this site information about facial spots can be given and teenagers can unknowingly be lured to buy the anti-pimple product of the sponsor. In this context, clear rules are required under which the sponsor is obliged to identify itself. Under Article 6 b of the directive on electronic commerce the natural or legal person on whose behalf a commercial communication is made, has to be clearly identifiable. So far it is not yet clear whether the sponsoring of an Internet site has to be considered commercial communication within the meaning of the directive on electronic commerce.

Metatags – metatags (also called metadata content labels) are elements of HTML code embedded in a webpage that are normally hidden from the view of people looking at that webpage. Search engines read this hidden words to determine how closely a web page matches the search request of a search engine user who is looking for specific content. For example search request for a car loan could return a website for an automotive repair shop hoping to convince user into fixing car instead of purchasing new one.

Another specific issue of Internet is framing. In the Internet context, a frame describes the appearance and layout style of a web site within a portion of a user’s computer screen. It particularly refers to the simultaneous loading of two or more web pages at the same time within the same computer screen. Frames can be any size or shape that is available to display on a computer screen (i.e., a frame could be used to create a thin boarder around a first window, therby making the frame appear to be part of the first window rather than a separate window)162.

The most typical use for frames is dividing the area of screen into two parts – one displaying the table of contents, and the other displaying a particular fragment of the contents. However, framing presents many possibilities for acts of unfair competition – it is possible for an entrepreneur to display side by side his trademark and information about his company, his advertisements and contents prepared by someone else even without consent of such a person. This may cause two negative effects: it may mislead users of a web page as to the authorship of the contents, and as well increase income of such an entrepreneur resulting from advertisements seen by webpage users (in Internet someone placing an advertisement pays customarily for every time his advertisement is displayed to potential customer. This issue is related with so called deep linking.

Deep link is a hyperlink that takes a user to a specific web page or any particular file (picture, movie, music, etc…) deep within a web site, rather than to the homepage of that site; I don’t want to describe the practice in detail as it is most of all a matter of copyright law, I want only to notify it as a possible threat for consumers who may be mislead as to the authorship of a particular content.

But, probably it is high time to make a step to the next issue – to specific information that consumers ought to receive at different stages of concluding an online contract.

Requirement of transparency in Polish legislation

General transparency

Similarly like in the European Community law quite common in Polish consumer law is requirement of providing consumer with clear and comprehensible information; this requirement may be found in multiple acts.

Cabinet’s Decree on the terms of concluding and performing contracts of sale of movables with participation of consumers (Dz.U.1995.64.328). Its § 7.1 provided that goods designed for retail ought to be permanently marked with information in Polish sufficient to allow consumer for a proper and full usage of goods. While it was possible to interpret from this provision also requirement of transparency – it constitutes a necessary precondition of allowing consumer to use goods properly and fully that the transparency itself has not been mentioned.

However the later (already derogated) decree on particular terms of concluding and performing contracts of sale between entrepreneurs and consumers (Dz.U.2002.96.851) in § 7.4 required from entrepreneurs that all the required information about sold goods were provided in clear, comprehensible and not likely to cause consumer’s mistake way.

The act on general safety of products (Dz.U.2000.15.179), also requires (article 9.2) that information specified in article 9 should be formulated in clear and comprehensible manner.

Accordingly to the article 12.1 act on tourist services (Dz.U.2001.55.578) both organizer and retailer of tourist services while providing consumers with written information required should make available to them written information about the services in question, moreover such information ought to be indicated in precise and comprehensible way. Moreover added in the year 2001 article 2.1a requires that this information cannot be misleading to consumers.

Both acts mentioned above will apply to transaction concluded by means of interactive webpages and should appear on such webpages. In respect of the act on general safety of products the requirement of providing them with information on the safety of products should be interpreted as obliging them to be given to consumers before a contract is concluded what is possible only by means of placing such information on a webpage.

When it comes to the act on tourist services attention catches formulation of the part concerning consumer information different from this of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. While article 3 of this directive mentions only a brochure (this can be justified by the time the directive has been passed – about 4 years before appearance of the first webpages, still it has to leave considerable uncertainty as to the applicability of this requirements to webpages containing information about package travels) than article 12.1 of the Polish act uses expression: …making available relevant written information, in particular brochures and catalogues…”. This expression clearly indicates that informational duties contained in article 12 refer to every written information organizer and retailer of tourist services gives to potential consumer what must include also their webpages.

Still the most important for setting standards in consumer online transactions are four other acts, whish I will enumerate chronologically.

First is the Act on protection of some of consumers’ rights and liability for defective products of 2 March 2000 (Dz.U.2000.22.271). Two provisions of this act concern respectively informing consumer about entrepreneur’s intention to conclude a contract (animus contrahendi) and particular information consumer ought to be supplied with not later than at the time he is given a proposition of concluding a contract.

Article 6.2 says that proposition of contract conclusion (in a form of an offer, invitation to make an offer, invitation to negotiations, should be given unambiguously and in comprehensible manner.

Article 9 requires that consumer, not later than at the moment of receiving proposition of contracts conclusion should be provided with precisely enumerated information. Article 9.2 requires that this information ought to be formulated unambiguously, in a manner comprehensible and easy to read. The requirement of comprehensibility in this article should be interpreted as concerning the intellectual contents of required information. It means that it should be provided by means of vocabulary and syntax understandable for an average customer. The requirement of information being easy to read relates rather to the issue of sensorial cognizability of information. Besides such obvious issues like the size and legibility of the used font, in context of webpages will apply also other factors like for instance a format of files containing such information. Usage by entrepreneur of a specialist or very rare format excludes transparency of such information.

Article 9 unlike aforementioned article 6 does not describe itself how the expression “proposition of contracts conclusion” ought to be understood. It could cause a doubt whether it encompasses situations when consumer makes purchases by means of n interactive webpage what is usually considered as making an offer to the entrepreneur. I am strongly convinced however that “proposition of contracts conclusion” in article 9 should be interpreted in the spirit of article 6.2, and contained there enumeration is omitted in article 9 for the purpose of conciseness.

Second act containing very important provisions is the act on special terms of consumer sale (Dz.U.2002.141.1176). Article 3.1 of this act obliges sellers selling on the territory of the Republic of Poland to provide consumers with clear, comprehensible and not misleading information in Polish, sufficient for the proper and full usage of sold consumer goods.

Another provisions may be found in recently (on the 25 September 2003) entered in force article 661§2 of the Civil Code obliging entrepreneur making an offer in electronic form to inform the other party before conclusion of a contract unambiguously and comprehensibly about enumerated issues (I sacrifice more space to them in the next chapter). What is important is fact that §3 of this article says that this provisions apply also when entrepreneur invites to negotiations, invitates to make an offer, or to the other way of concluding contracts what in respect to webpages renders to some extent meaningless divagations whether it is a consumer or entrepreneur who makes an offer.

Finally article 5.1 of the act on providing services by electronic means requires from service providers that they give in a clear, unambiguous and directly accessible through the telecommunication system used by the user basic information enumerated in points 2-5 of this article.

Transparency of standard contractual terms

An overwhelming part of business to consumer transactions, conducted by means of interactive webpages, belongs to contracts of adhesion, regulated typically by standard contractual terms. Notion of standard contractual terms covers all prepared unilaterally, and in advance before conclusion of a contract ready to use terms in form of: contractual terms, patterns, forms, regulations, etc… Their popularity results from the tendency to rationalization of the conduct of legal transactions – especially this run on a mass scale. They may be however prepared for the purpose of one transaction. What constitutes a necessary prerequisite of treating a particular term or terms as belonging to this category is fact that they were not individually negotiated.163 While regulation of standard contractual terms has been present in Polish law since July 1934 – entry in force of the Code of Obligations (Dz.U.1933.82.598), which regulated this issue in articles 71 and 72. The notion “wzorce umowne” which in my opinion may be best translated into English as “standard contractual terms” became a part of the language of law after being incorporated to article 384 of the Civil Code. The term “standard contractual terms” indicates that these terms are intended to be used repeatedly by the party who established them. However as writes Z. Radwański the term “established” should not be interpreted narrowly – in a sense of being written by an entrepreneur who intends to subsequently use them. They may be prepared or even used by someone else – what is relevant is entrepreneur’s intention of using such terms in contracts concluded by him (the very intentions are of course not sufficient to incorporate these term – Later on I will write about required preconditions of incorporation). As a consequence of being designed for repeated use is fact that such terms may contain only recurrent elements of contract – they cannot identify the other party or determine precisely the object of contract. Their role consists in supplementing of the contents of future legal relationship.164

In the context of transactions conducted by means of an interactive webpage may arise a problem; theoretically possible is usage in an online store of an engine generating dynamically on the basis of both standard contractual terms and data provided by customer (identifying his identity and the object of transaction) contents of the final contract. I am not sure how applied in such a way terms could be qualified – their qualification as general terms provides consumer with higher level of protection, while on the other hand the fact of their “individualization” suggests something opposite. I am convinced that consumer concluding such a contract generated dynamically mostly on basis of standard contractual terms still would be covered by protection of article 3851 of the Civil Code but such a solution has two disadvantages. First is that article 3851 regulates only the contents of contractual terms, and probably excluded would be application of articles 384 and 385 containing favourable for consumers informational duties of entrepreneur. Second, important, though unrelated to consumer law, is fact that protection of article 3851 covers only consumers while articles 384 and 385 concern everyone.

Supervision of Standard Contractual Terms

In context of standard contractual terms, their supervision may take two main forms: it may be directed at either their transparency or rather at their contents. I will write more on the second subject in the next chapter (Information on the applicability of general terms and conditions on page 114 and following), here I will concentrate only on supervision aimed at compelling entrepreneurs to presenting standard contractual terms presented by them in unambiguous and comprehensible manner.

Such techniques have purpose of elimination (or at least substantial limitation) of situations when consumers conclude a contract on spec, without being aware of its terms. For this purpose different legal instruments may be applied, inter alia obligation to deliver, obligation to sign some or all clauses, particularly clear and distinguished manner of printing some of the terms, etc…165

Accordingly to article 385§2 of the Civil Code standard contractual terms ought to be expressed in unambiguous and comprehensible way. This rule refers to all standard contractual terms – directed to both consumers and professionals. However those directed to consumers, as addressed to non-professionals, must meet higher requirements.

This rule may be construed as requiring that such terms are expressed in a language understandable for addressee, with readable font, by means of vocabulary and syntax understandable for an average consumer.

In consequence when standard contractual terms assessed form the point of view of a typical addressee, prove to be unclear or incomprehensible, such terms are not binding. On the other hand if there is doubt about the meaning of a term, the interpretation most favourable to the other party ought to prevail. This rule, with relation to consumers, is directly expressed by article 385§2. It should be however applied also to the other subjects due to the general rule that the risk of unclear expressions burdens the one who unilaterally, without the participation of the other party formulated them (in dubio contra proferentem).166

Notions of unambiguousness and comprehensibility, as qualities of professionals’ activity are precisely explained by E. Łętowska, who writes that this requirements refer to tendency in European consumer law of requiring total transparency in the conduct of legal transactions involving consumers.

While notion of “unambiguousness” refers to the contents of the record than “comprehensibility” refers to both: its form – covers among others: readability, size of the font, technical conditions of familiarization with information like: illumination, noise, and contents. Comprehensibleness must be assessed with respect to the average, educated consumer. Consequently if a consumer does not present such a minimal level of conspicuousness he may be bound by terms incomprehensible to him. On the other hand, unacceptable is assuming general standards of assessment consumer’s comprehensibility in form of a test: “should have known”, “should have been aware of“.167

Important are relations between notions of “delivering standard contractual terms” and “ease of acquainting with them”. Fact that general terms were delivered does not equal to creating situation when consumer may easily get acquainted with them. It depends among others from the fact whether delivery is connected with technical conditions allowing to familiarize with aforementioned terms as well as from their comprehensibility.

The meaning of delivery is most of all evidential – the fact that such terms were delivered (relatively easy to prove) may become the first step to proving that all conditions necessary for valid incorporation of such terms to the contract were preserved. However this fact does not mean itself that such general terms are comprehensible and articulate – that it was easy to get acquainted with them.

As E. Łętowska maintains while lexically these two notions are independent than for the purpose of standard contractual terms’ incorporation fact that such terms are easy to acquaint with constitutes necessary prerequisite of delivery’s validity and consequently their incorporation into the contract.168 Delivery of standard contractual terms which does not fulfil cumulatively prerequisites of being: unambiguous, comprehensible and readable cannot be treated as fulfilling obligation imposed by article 384§1. Also unacceptable is assumption that in case of general terms which, only partially, may be familiarized with this part is validly incorporated. This situation ought to be distinguished from already mentioned – when some terms are unclear or incomprehensible and when the rule in dubio contra proferentem applies.

What must be stressed is fact that comprehensibility of general terms is by no means limited only to readability of the text (document, record, etc…), very important is also its clarity. Article 385§2 gives basis for calling into question vaguely, badly or misleadingly written general terms. As I have already mentioned the standard allowing to determine whether such terms are sufficiently comprehensible must be determine by the typical level of circumspectness and conspicuousness among the addressees of such terms. As relevant should be also considered facts like: type, frequency and permanence of contacts.169

Transparency & standard contractual terms

Delivery and other means

Contrary to a legal act, standard contractual terms do not require promulgation what would create an opportunity for everybody to familiarize with them. What is certainly unacceptable is consumer’s (or any other party) being bound by such terms in situation when he could not be acquainted with them. For that reason, the Civil Code (most of all article 384) imposes, upon entrepreneurs taking advantage of standard contractual terms, obligation of providing the other party with information on such terms, which are not binding unless this obligation is fulfilled.

Very important, traditional and guaranteeing high level of certainty to both parties is delivery. Article 384 of the Civil Code treats this method as the basic, stipulating at the same time that such terms to be binding must be delivered before conclusion of contracts (Convincing are arguments E. Łętowskiej who writes in “Prawo umów”, p. 315-316 that impossible is validation neither by subsequent delivery of such terms nor by acknowledgment of fictious delivery). Delivery may be carried out by providing the other party with paper copy of general terms, placement of such terms below parties signatures on a document (also on the other side of a piece of paper), as a form prepared for conclusion of multiple contracts. As a general rule terms must be delivered entirely – in case of insurance contracts till the 1 January 2004 sufficient was providing the other party with an abstract of terms (under condition that the full version was easily accessible), nonetheless amendment to the Civil Code which entered in force on the 1 January 2004 eliminated this option.

When using of standard contractual terms is customary in relationships of such a kind, the entrepreneur may use easier for him method of informing the other party. Article 384§2 imposes here some limitations: the party using standard contractual terms must render them easily accessible, moreover unless a contract belongs to a category of contracts concerning trifle matters of everyday life (the same category of contracts which accordingly to article 20 of the Civil Code may be concluded without guardian’s consent by a minor), this method cannot be applied to informing consumers.170

It may be reasonable to mention here one more general issue – that of general terms issued during the contractual relationship. Article 3841 determines that such general terms bind the other party unless it gave notice at the first possible time. Opinions are divided whether application of this norm is possible only when the contract was concluded without use of standard contractual terms or even by means of such terms.171 The latter opinion has two alternatives – one allows for such modification without any restrictions while the other allows to modify contractual relationship by means of issuing new general terms under condition that the contract previously contained a clause allowing for such change (modification clause). While E. Łętowska inclines to the position of modifications’ admissibility even when the contract have been concluded by means of standard contractual terms providing that the contract included modification clause, than Z. Radwański172 maintains that article 3841 does not give basis for such distinction and consequently accordingly to the rule lege non distinguente may be applied to both contracts concluded with and without use of standard contractual terms. In my opinion this latter opinion seems much more convincing and closer to the spirit of these regulations.

Standard contractual terms on WWW

The Internet is a global medium and its functioning concerns exchange of information on a mass scale. Such a scale of interactions and offering goods and services to unlimited amount of unknown clients causes that in practice most of the contracts concluded online (especially these concluded by means of an interactive webpage) have nature of contracts of adhesion.

In practice this situation applies to a conduct of transactions on a mass scale when virtually impossible is individual negotiating of terms and conditions with particular clients. Besides their mass scale such transactions have typically also another feature – namely difference in potential of contracting parties – typically standard contractual terms are presented by the economically stronger party. This situation implies application to such contracts of provisions regulating this terms in the Civil Code (article 384 and subsequent).

Typically client interested in goods or services offered by means of an interactive webpage is being asked to confirm electronically that he has acquainted himself with general terms applicable to such contract, what is considered as a consent to incorporation of these terms into the contract and consequently conclusion of a contract governed by them.173

Below I will present doubts if such presentation of general terms may be considered as sufficient for the purpose of their incorporation into the contract.

Incorporation of standard contractual terms

Supervision of standard contractual terms may be divided into two stages. First encompasses checking whether these terms were incorporated into the contract; second consists in supervision of the contents of aforementioned terms. Due to the subject of these thesis I will limit myself only to the first part. Moreover as I have already dealt with influence of general terms’ transparency onto delivery’s validity, here I will limit my divagations to other issues.

While I am aware of the changes to article 384, which entered in force on the 25 of September 2003, I think that it may be a good idea to consider first the previous situation especially that I’m not convinced whether the contents of this recently added §4 is very fortunate and contributing to clearing situation. These doubts I will present at the end of this subchapter.

Extensive and exhaustive description of the question how consumers ought to be informed about standard contractual terms in case of contracts concluded by means of interactive webpages may be found in an article written by F. Wejman.174 Author reminds of two basic methods of informing the other party about general terms’ contents: delivery and rendering them easily available to the other party and suggests following test consisting of three stages:
1) Establishing if using standard contractual terms is customary in particular relationships, if the answer is negative terms must be delivered, otherwise the second applies
2) Establishing if the other party is a consumer – if answer is negative terms may be made easily accessible, otherwise applies stage three:
3) Establishing whether a contract is commonly concluded and concerns trifle matters of everyday life if the answer is in any part negative terms must be delivered – otherwise the easier for entrepreneur method may be applied.

In F. Wejman’s opinion usage of standard contractual terms is customary in online contracts, than the scope of consumer transactions in case of which delivery is not obligatory is extremely narrow.

Invoking the ratio legis of articles 14 and 20 of the Civil Code he says that in case of legally incapacitated persons extensive interpretation of the notion “commonly concluded contracts concerning trifle matters of everyday life” protects these persons saving them from a significant problem – nullity of a contract and as such is favourable to these persons.

In case of standard contractual terms – lack of incorporation leads to applicability of general provisions, if there are none than a norm presenting legitimate interests of parties applies. If to consider that professionals use typically standard contractual terms to obtain conditions more favourable from general rules than narrow interpretation of the term “commonly concluded contracts concerning trifle matters of everyday life” would be more profitable for consumers and author postulates application of such interpretation to online contracts. I definitely incline here to opinion of E. Łętowska who denies possibility of application different interpretations to the same verba legis; I am convinced that applied here should be the rule lege non distinguente.

Still even if to skip the question of proper method of construing aforementioned term, while assessing current shape of article 384 of the Civil Code it is difficult not to agree that in consumer contracts evidently prevailing method of informing consumer is delivery of standard contractual terms.

It is not easy to determine how the term “delivery” ought to be interpreted in the context of online trade. Traditionally notion of delivery is bound with a document having a material equivalent. Such meaning of this term would cover neither terms placed on www nor sent by electronic mail, due to the fact that in both cases terms are dematerialised. Though such interpretation cannot be satisfying, as limiting delivery only to providing the other contracting party with physical carrier of general terms would eradicate its potential applicability to online transactions.

To determine functional meaning of the term delivery, taking into consideration both: needs of adherent and of the efficient conduct of legal transactions; it may be necessary to refer to its purpose. Most of all delivery is required to provide adherent with his copy of all terms of concluded contract – this has two sub-goals first is assurance that the other party is indeed able to acquaint with terms, the other is to secure that if necessary it will be able to prove conclusion of contract and its terms. What also should be stressed is fact that delivery of general terms results in situation of permanent publicness of these terms at least to the client (it will also be difficult to hide these terms from the Office for Competition and Consumer Protection and another institutions concerned with consumer protection.

Functionally than, the notion of general terms’ delivery covers situation when at least two elements are present: adherent receives standard contractual terms from using them professional (in practice, the very fact that subject uses standard contractual terms allows to qualify him as an entrepreneur, within the meaning of article 431 of the Civil Code)175 and these terms are already recorded. Consequently in most of situations as not sufficient should be considered situation when such terms are available on the sellers webpage and client may for instance save them on his hard drive. Creation of the situation of permanent publicness of general terms should not depend from consumer’s will – that is why he cannot be expected to foresee necessity of recording available standard contractual terms. Moreover terms recorded in such a manner in most situations would have hardly any evidential value. Availability of such terms on sellers webpage and client’s ability to records them is satisfying in situations when legislator requires rendering terms easily available to the client.

As a solution F. Wejman suggests sending standard contractual terms by means of electronic mail. While the contents of a webpage (along with placed thereon general terms) may be modified at any time email offers much higher degree of certainty. On the one hand it is difficult for entrepreneur sending such email to call into question its contents or time of delivery; on the other hand it is extremely difficult for its addressee to change this contents (contrary to saved on a hard drive contents of a webpage).

F. Wejman suggests rather complicated procedure of general terms incorporation by means of sending email:
1) Adherent states that he wants to receive standard contractual terms and provides entrepreneur with his email address (such statement cannot be qualified as an offer or invitation to sending offers),
2) Entrepreneur obtains email containing general terms,
3) Adherent sends such an email back what gives entrepreneur proof that terms have been correctly delivered.

This proposition, seems rather strange and complicated, though is being applied quite often with one modification – instead of sending back email containing standard contractual terms – adherent is quite often asked to click on a link contained in such email what activates his account and enables him to use services offered by a particular ISP.

Article 384 after amendments of 25 September 2003.

On the 25 of September 2003 entered in force act amending the Civil Code which added to article 384 new paragraph 4 which is supposed to regulate issue of using standard contractual terms in electronic form.

It requires from entrepreneur using such terms to make them available to the other party in a way allowing to store and reproduce them in the normal circumstances.

What is visible – these provisions as to the level of effort required from the entrepreneur are somewhere between delivery and rendering general terms easily accessible to the other party. The very formulation is rather unfortunate – this paragraph could be split into two parts:

  • first obligation of entrepreneur using standard contractual terms to make them available to the other party – this part resembles requirements of art. 384§2 on rendering terms easily available,
  • second is that the other party as a result of first requirement’s fulfillment should be able to store and reproduce these terms in the normal circumstances – this part resembles results of traditional delivery which causes situation of permanent publicness of delivered terms.

As a result it is quite difficult to construe exact scope of entrepreneur’s obligation. First part – especially expression “make available” (udostępnić) suggests that the role of the entrepreneur is of rather passive nature and enough to fulfil requirement is to place such terms on a webpage accessible to clients. On the other hand – second requirement (that client must be able to store and reproduce these terms in the normal circumstances) implies active role of the entrepreneur – mere placement of general terms on a webpage by no means provide certainty that client will be able in future to store and reproduce them. The same provisions do not suggest any activity on the part of client – he is entitled to being able to access information in before the time of contract conclusion (this regulation differs from regulation of delivery which is supposed to take place at the moment of contract conclusion) as well as to store ad reproduce these terms afterwards. While placement of such terms on a webpage fulfils the first requirement it does not fulfil completely the second; two questions arise in this context:
- first whether a client may be expected to show activity in form of recording general terms made available to him?
- second whether such recorded by client terms are sufficient to protect his interest (for instance their evidential value is highly questionable)?

Such formulation of this issue brings to mind many questions. For instance what does this new provisions change in hitherto situation? As an innovative element may be treated allowing entrepreneurs using standard contractual terms to use them irrespectively of the fact that such terms are commonly used in particular kind of transactions or not. But it is doubtful if this new provisions may significantly contribute to rationalization of the online trade.

What is particularly worrying is fact that this provisions if understood as sufficiency of placing general terms on the webpage will decrease level of consumer protection in online transactions – as I was trying to prove so far is this that in most situations to consumer transactions applies requirement of delivering standard contractual terms – such a explanation is far from being satisfactory especially in context of all efforts made to approximate Polish consumer law to European standards, and general tendency of increasing consumer protection. In that light I see five potentially acceptable interpretations of article 384§4:

  1. Mere placing on a webpage of standard contractual terms allowing the other party to familiarize with them as well as copy or download them fulfils requirements of provisions in questions, however they do not apply to consumer transaction.
  2. Mere placing on a webpage of standard contractual terms allowing the other party to familiarize with them as well as copy or download them does not fulfil requirements of provisions in questions, however they apply to consumer transactions.
  3. The paragraph in question applies to consumer transactions, however its second part should be interpreted differently in respect to consumers and differently in respect to other clients. Such solution corresponds with the idea of requiring different levels of circumspectness and conspicuousness from consumers and professionals.
  4. This paragraph does not apply at all to transactions concluded by means of interactive webpages – instead it is limited to transactions concluded by means of exchange of electronic correspondence, and possibly also to transactions concluded by exchange of emails combined with use of a static webpage. As such applies to both professionals and consumers.
  5. This paragraph applies to both transactions done by means of an interactive webpage and consumer transactions, though the role of entrepreneur who wants to incorporate his general terms into the contract concluded by means of an interactive webpage (contrary to lexical interpretation of the first part of this provision) cannot be limited to a passive placement of general terms on a webpage. The process of purchasing must be extended by entrepreneurs duty to actively send by an email all the applicable standard contractual terms.

It is not easy questions, which of these options choose. It should be assumed that this amendment was aimed at improving efficiency of online transactions without intended lowering of the consumer protection level. I would be willing to incline to the fourth of options presented above. Sending general terms by email before conclusion of the contract (what is specific for this provision) efficiently protects interests of both contracting professionals and consumers; moreover it is consistent with assumption that achieving situation of permanent publicness of general terms should be independent from client’s will – he cannot be expected to be aware of the fact that for the purpose of recording these terms his activity is necessary. After client receives email containing general terms his activity is necessary to delete them but he does not have to show any activity to be able to store and reproduce these general terms in the future, what fulfils assumptions of the second part of article 384§4. This idea has only one weak point – no expression in article 384§4 suggests that the intended scope of this provision is limited only to transactions concluded by the exchange of emails. For example article 661 regulating the issue of making an offer by electronic means expressly says in §4 that it does not concern transactions concluded by individual means of communication. Consequently due to aforementioned rule lege non distinguente conception presented here even if convenient os rather doubtful.

As I have mentioned above paragraph 4 consists of two, to a large extent contradictory parts – first assumes passive the second active role of the entrepreneur using standard contractual terms. If to assume that the expression “make available” could mean combination of making use of interactive webpage and email than probably the best fits option five – assuming extention of contracting process by sending an email containing standard contractual terms to the adherent.

Quite reasonable and rendering online transactions more efficient could be options one and three – yet again the rule lege non distinguente finds here application and discourages from such interpretation of these new provisions.

De lege ferenda it could be possible to show some amendments which could possibly better protect interests of the party contracting with an entrepreneur using standard contractual terms and at the same time securing satisfactory level of efficiency. It is possible to quote here for example solution presented by F. Wejman176 used in German legislation which requires three elements: indication by the entrepreneur that he uses standard contractual terms, making them easily available and adherent’s consent.

It is also worth noticing that stressed by F. Wejman importance of sending general terms by email (or even exchange of emails containing them) results mainly from the fact that so far it is the most important way to provide both parties with evidence covering contents and time of applicability of such general terms. As both files on entrepreneur’s server containing general terms and copy of them made by the client and stored on his hard drive may be at any time easily modified and consequently their evidential value is of little importance. However with increasing significance of electronic signature this may change. Digital signature may be used not only for the purpose of signing electronic correspondence – on the contrary it may be used to sign any file. Signing a file results in a certainty as to: who has signed it, when he has done it, whether the contents of the file has been modified afterwards. Consequently such a file signed with a secure digital signature177 – to be more exact – every original file as well as every copy of it (it may be copied unlimited amount of times – but not modified) has evidential value equal to traditional written document with a handwritten signature and may be used by any of the contracting parties for the purpose of any proceedings (article 78§2 of the Civil Code and article 5.2 of the Law on digital signature, Dz.U.01.130.1450). Still placing such a file by entrepreneur on his webpage in practice would not provide satisfactory level of consumer protection. As I have already written digital signature confirms: signatory, time of signing and contents of signed file but does not give any guarantee as to the identity of a particular file. I mean by this that entrepreneur may generate at the same time any amount of signed files containing different versions of standard contractual terms and change the version on a server to a more convenient to him. Consequently only two options may be satisfactory to a consumer or any other client: having his own copy of such terms or having access to a copy deposited by the entrepreneur by the trusted third party.178

Again necessity of downloading such terms from entrepreneurs webpage fulfils only requirement of making these terms easily available not that of delivery. De lege ferenda – considering increasing awareness of consumers and growing experience perhaps it could be considered as an interesting solution but de lege lata cannot be considered as acceptable.