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PENALTY IMPOSED BY THE POLISH OFFICE OF COMPETITION AND CONSUMER PROTECTION

The Polish President of the Office of Competition and Consumer Protection recognized practices of a Lithuanian company VINTED UAB based in Vilnius (the owner of Vinted platform) as a violation of collective consumer interests and imposed on the company a penalty of over 5,3 million PLN.

Vinted is a service that has gained huge popularity in Eastern and Central Europe over the last few years in conjunction with rising awareness of conscious fashion.

Users of Vinted can buy and sell items only with the use of a virtual wallet “vinted-wallet”. Payments through vinted wallet are maintained by an external entity – Ayden. According to Polish domestic law regulations, Ayden, in the process of transferring money from any “vinted-wallet” to a personal bank account, was entitled to demand from a user of Vinted an additional personal information, such as the number of personal ID or passport in order to verify their identity. Before 16 May 2022 neither the terms of use nor any other sources of information about Vinted provided by VINTED UAB mentioned such possibility.

Second practice recognized by the Polish Office of Competition and Consumer Protection as a violation of collective consumer interests was the fact that Vinted automatically qualified all of its users to a paid program of Buyers Protection without giving them clear information that this is not necessary in order to take advantage of the platform.

Both practices mentioned above qualify as unfair on the grounds of Polish legal system. According art. 6 par. 1 and par. 3 point 1 in relation to art. 4 par. 2 of the Act of August 23 2007 on Combating Unfair Commercial Practices (Journal of Laws No. 171 of 2007, item 1206); that states what follows “Article 4 (…) 2. In particular, a commercial practice shall be regarded as unfair whenever it is misleading or aggressive and whenever a code of conduct is used that is contrary to law, if such activities meet the conditions set forth in section 1 above. (…) Article 6 1. A commercial practice shall be regarded as a misleading omission whenever it lacks material information that the average consumer needs to take a transactional decision and as such it either causes or may cause the average consumer to take a transactional decision that he/she would have not otherwise taken (…). 3. In particular, a misleading omission may consist in: 1) a failure to disclose product-related information or to communicate it in a clear, explicit and timely fashion;”

Decisions issued by the President of the Polish Office for the Protection of Competition and Consumers were based on  art. 27 par. 1, 2 in relation to art. 24 par. 1 and art. 26 par. 1 in relation to art. 24 par. 1 of the Act of February 16 2007 on Competition and Consumer Protection of ( Journal of Laws No. 50 of 2007, item 331), that states as follows “Article 24. 1. Practices infringing collective consumer interests shall be prohibited. (…) Article 26. 1. The President of the Office shall issue a decision pronouncing a practice an infringement of collective consumer interests and ordering that the same be discontinued, if the President of the Office identifies a breach of the prohibition specified in Article 24. (…) Article 27. 1. A decision referred to in Article 26 shall not be issued if the undertaking concerned has ceased the practice referred to in Article 24. 2. In the case described in paragraph 1, the President of the Office shall issue a decision pronouncing a practice an infringement of collective interests of consumers, and finding the practice to have been discontinued.”

According to European Union legislation any service provider specializing in B2C e-commerce transactions that offers to Polish customers a website in Polish language or payment in PLN (directs its activities to Poland) may be supervised by the Polish authorities according to domestic legislation. “A contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional: (…) by any means, directs such activities to that country or to several countries including that country, and the contract falls within the scope of such activities.”

[REGULATION (EC) No 593/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 June 2008 on the law applicable to contractual obligations (Rome I)].

            An area that is most prone to being controlled by the Polish Office of Competition and Consumer Protection on the basis of Polish domestic law and cause imposition of huge fines on foreign entrepreneurs are the terms of use. Practically, the problem comes down to whether the terms of use provided by a foreign company providing e-commerce services in B2C relations consider all of the obligatory regulations on the basis of Polish domestic law and if they do not contain clauses that on the basis of Polish law are considered abusive. Additionally, what foreign entrepreneurs need to be aware of are the terms of marketing actions an example of which is sending newsletters via email. According to art. 10 point 1 the Act of 18 July 2002 on Electronic Provision of Services (Journal of Laws of 2020, item 344) it is forbidden to send commercial information to a designated recipient who acts as an individual person without their consent.

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