IMPLEMENTATION OF EU REGULATIONS

EU directives concerning consumer rights and governing certain aspects of contracts for the provision of digital content and services as well as contracts for the sale of goods have been implemented into the Polish legal order with a significant delay. The law implementing the EU regulations, i.e. the Act of 4 November 2022 amending the Consumer Rights Act, the Civil Code and the Private International Law Act, enters into force on 1 January 2023.  Therefore, from the New Year onwards, entrepreneurs providing digital content and digital services will be bound by new regulations, which will require them to adapt their business to the new provisions.

WHOM THE AMENDMENT APPLIES TO?

As already mentioned, the amendment applies to digital content providers and digital service providers. The existing Consumer Rights Act of 30 May 2014 (“Consumer Rights Act“) defines digital content as data produced and delivered in digital form. For example, it can be pointed out that digital content includes computer software, various applications, games, music and audio-visual files or e-books.

What is new, however, is the introduction into the Consumer Rights Act of a definition of digital services, which are defined as services that allow the consumer to:

• produce, process, store or access data in digital form,
• share data in digital form, which has been transmitted or produced by the consumer or other users of that service,
• other forms of interaction by using data in digital form.

Examples of the provision of digital services include sharing of video or audio content, hosting of files, broadly understood social media or data clouds. Digital services are provided via the internet, mobile devices or digital or satellite television.

CHANGES INTRODUCED BY THE AMENDMENT

The Act of 4 November 2022 amending the Consumer Rights Act, the Civil Code Act and the Private International Law Act introduces a number of changes to the existing legislation.

Among other things, it introduces modifications to the statutory warranty regulations. Moreover, the new provisions abandon the concept of defect in an object and introduce a new term – conformity of goods with the contract. At the same time, they define in detail the cases in which goods are to be considered to be in conformity with the contract.  The purpose of this regulation is to avoid some of the disputes concerning the scope of obligations imposed on entrepreneurs.

Definitely new are provisions introducing a hierarchy of consumer protection measures. Under the new regulations, a consumer will first have the right to demand that the goods are restored to conformity with the contract, either by repair or replacement. Only afterwards, if the repair or replacement turns out to be, for example, uneconomical, the consumer will be able to exercise further rights, i.e. demand a price reduction or withdraw from the contract. As before, a consumer will not be able to withdraw from the contract if the non-conformity of the goods with the contract is insignificant; however, there has been introduced an assumption, beneficial for a consumer, that the non-conformity of the goods with the contract is significant.

Furthermore, the time limit for the entrepreneur to handle complaints has been modified. Until now, the entrepreneur had 14 days to respond to complaints regarding sales contracts concluded with consumers, while in the case of other contracts (e.g. service contracts), the deadline was 30 days.  As a result of the changes, the deadline for responding to a complaint made by a consumer has been shortened to 14 days in any case, regardless of the type of contract concluded.

As a side note, it should be mentioned that the terminology used in the Consumer Rights Act has changed – the previously used term – ‘object’, has been replaced by a new term – ‘goods’.

 RESULTS OF THE AMENDMENT

The discussed amendment is important insofar as it implies the need for the entities offering digital content or providing digital services to introduce changes in their IT systems, documents and procedures concerning basically all stages of the entrepreneur-consumer relationship, starting with advertising and presentation of an offer, through performance of information obligations, contracting, contract performance and ending with after-sales service.