Poland: A revolution in handling consumer complaints – implementation of the Digital Services Directive, the Sale of Goods Directive and the Omnibus Directive

The Digital Services Directive and the Sale of Goods Directive

The Digital Services Directive and the Sale of Goods Directive (the “EU Directives”)   introduce some key changes:

• the notion of goods with digital elements, and regulations that apply to such goods;
• contracts for the provision of digital content or digital services, with separate provisions on the presumed conformity of these services with the contract, liability for non-conformity, etc.;
• ·new guidelines for assessing the conformity of goods or digital services with the contract;
• a change in the hierarchy of consumer protection measures – as a general rule a consumer must first request repair or replacement, and only then may request a price reduction or withdraw from the contract.

  Further, the Polish implementation of the EU Directives results in the following changes in practice:

• separate regulation of consumers’ and entrepreneurs-acting-as-consumer’ rights in the case of goods defects (warranty);
• an extension of the time limit for the presumed conformity of goods with the contract - from one year to two, counting from the actual delivery of the goods;
• introducing a uniform time limit of 14 days for responding to all consumer complaints – where under previous rules 14 days applied only to statutory warranty complaints and 30 days to all other complaints,
• a change in the time limit for claims - in some cases allowing consumer to file a complaint even up to 8 years after the purchase of a good.

The Omnibus Directive

The Omnibus Directive introduces, inter alia, key changes on payment with personal data, additional specific information requirements for contracts concluded on online marketplaces, and new requirements on price reduction announcements.

New provisions supplement the EU Directives, providing a legal framework for payment with consumers’ personal data.

The Omnibus Directive also introduces new information requirements for traders as well as for online marketplace providers, e.g. on the main parameters determining the ranking of products presented to the consumer as a result of a search query or whether the third party offering the products on online marketplaces is a trader.

Under the new rules, all traders, regardless of the applied sales channel, are required to announce price reductions in a way that allow consumers to compare the reduced price with the prices applied during the 30-day period prior to the reduction.

What is specific for the Polish implementation:

• ·new obligations apply to price reductions for both goods and services;
• the exemption for “freezing” the prior price in case of progressive price reduction has not been implemented;
• where a good or service is offered for sale for a period of less than 30 days, information on the lowest price for that good or service between the date when the good or service was offered for sale and the date when the reduction was introduced should be displayed alongside information on the reduced price;
• different rules for goods which are liable to deteriorate or expire rapidly - the 30-day period and a shorter period for goods or services offered for sale for a period of less than 30 days do not apply.

Challenges for traders

The new rules on consumer warranties will apply to all contracts for the delivery of goods, digital content or digital services concluded with consumers on or after 1 January 2023. For consumer claims based on contracts for goods concluded before that date, or digital content or digital services delivered before that date, the previous provisions will apply. In case of provision of digital content or digital services, new provisions will apply also if a contract was concluded before 1 January 2023 but provision of the digital content or service was to take place on 1 January or after that date. This means that, during the interim period, traders offering goods, will be obliged to handle consumers’ complaints in two regimes.

The changes will require traders to revise their current documentation, such as sales terms and conditions. But those textual amendments alone will not suffice. Traders offering products in Poland will also have to update their internal procedures and business processes for handling consumer complaints and for informing consumers about a number of aspects of the goods and services they offer.

At the same time, traders must ensure that their communications on price reduction comply with the Omnibus Directive. The changes will require traders to adapt their internal policies and sales processes.