From 1 June 2020 the regulations on prohibited contractual provisions (abusive clauses), so far applicable only to consumers, will in certain situations also apply to sole traders. This change will generate many practical problems.
Art. 3855 of the Polish Civil Code, added by last year’s Act Amending Certain Acts to Limit Regulatory Burdens, enters into force on 1 June 2020. It provides: “The regulations concerning consumers set forth in Art. 3851–3853 [concerning prohibited contractual provisions] shall apply to a natural person concluding a contract directly connected with his economic activity if it follows from the contract that it does not have a professional character for that person, in particular arising out of the subject of the economic activity performed by that person published on the basis of the regulations governing the Central Registration and Information on Business [CEIDG].”
The new Civil Code Art. 3855 concerns only prohibited contractual provisions (abusive clauses). The regulations on abusive clauses will be applied from 1 June 2020 to sole traders (single-person business operators) meeting the conditions of this provision (as discussed in more detail below). Art. 3853 contains a catalogue of 23 examples of abusive clauses, while the register of prohibited clauses maintained by the president of the Office of Competition and Consumer Protection (UOKiK) currently includes nearly 8,000 specific clauses found by the Court of Competition and Consumer Protection (SOKiK) to be abusive. In addition, UOKiK has issued hundreds of decisions identifying various types of prohibited contractual provisions. The aim of this amendment is to eliminate such provisions from contracts applied in dealings with sole traders.
In this respect, the amendment raises at least four main issues or doubts.
How to determine which clauses are abusive?
If a clause previously included in a contract with consumers has been held with legal finality by UOKiK, SOKiK or the common court to be abusive, should it also be deemed to be abusive with respect to sole traders?
There are many indications that the decisions will head in this direction. It would be an apt solution in a great proportion of instances. Nonetheless, every case should be examined individually. In some situations, clauses held to be abusive in dealings with consumers might prove to be permissible in dealings with a consumer/individual business operator. This is because under Civil Code Art. 3851, an abusive clause is one that frames the consumer’s rights and obligations “in a manner contrary to fair practice, grossly infringing the consumer’s interests.” It should be recognised that the standard defining what is a fair practice and what actions infringe the interests of the other party should be higher in relation to a consumer than in relation to a sole trader. It may be expected that a standard for the “average consumer/business operator” will be developed in the rulings and the literature, comparable to the current standard for the “average consumer.”
Will fees for consumer/business operators have to be cut?
Some businesses charge lower fees to consumers than they do to business customers. After 1 June 2020, will they have to lower their fees for consumer/business operators to bring them into line with fees for “ordinary” consumers?
Unfortunately there is no simple answer to this question. Generally it may be said that as a rule there is no such obligation (just as now there is no obligation to charge the same fees to new and current consumers). But there are exceptions.
First, it depends on the type of fee. Under Civil Code Art. 3851, the regulations on abusive clauses do not apply to “provisions specifying the principal consideration from the parties, including the price or remuneration, if they are worded unambiguously.” Thus the issue of abusiveness can arise only if the provisions on the principal fee (price/remuneration) are ambiguous, and in situations where the fee does not constitute the principal consideration (i.e. an incidental fee).
Second, it will depend on the sector. For example, in the banking sector, UOKiK has forced banks to lower their fees for consumers for technical and administrative acts (such as issuing certificates, concluding annexes, or issuing demands for payment). It is not clear whether such fees should also be reduced for consumer/business operators after 1 June 2020.
Third, contractual provisions setting the amount of fees are sometimes supplemented by various additional clauses concerning for example the possibility of unilateral change in fees or the rules according to which the fee is set. Such additional clauses affecting the amount or method of payment of the price or fees may be regarded after 1 June 2020 as prohibited clauses in contracts with sole traders.
The impact of the amendment on the fees applied after 1 June 2020 to sole traders has yet another essential aspect, namely that attempts to unify undertakings’ activities in this respect, particularly via industry associations, may be regarded by UOKiK, the European Commission and the courts as a form of price-fixing conspiracy.
How to evaluate new contractual provisions not previously analysed in the rulings on abusive clauses?
This particularly involves clauses squeezed into current contract forms to avoid coverage by the code amendment of contracts concluded before 1 June 2020, but then amended after that date.
The new Art. 3855 enters into force on 1 June 2020 and applies to contracts concluded on or after that date. But the act does not answer the question of when a new contract is being concluded or only an amendment to an existing contract. (This applies to services; this issue will not arise in the case of a sale of tangible items.) The answer to this question will depend on the existing contractual provisions and the nature of the services. Generally, it should be accepted that if the changes to the contract are important enough to constitute essentially a novation of the contract, then the amended code provision will apply to the “new” contract. The following types of changes are particularly deserving of attention:
- A change or modification in the subject of the consideration provided under the contract (e.g. making an additional telephone number available, or increasing the amount of a loan)
- Extension or renewal of the term of the contract
- Change to the essential provisions of the contract
- Joining the contract by a new party.
When is a contract professional in nature for the consumer/business operator?
Under Civil Code Art. 3855, a sole trader will be covered by the civil-law protection against abusive clauses like a consumer on condition that:
- It appears from the contract that is not of a professional nature for the customer (as determined in particular based on the business operator’s entry in CEIDG)
- The contract containing the clause is directly connected with the trader’s economic activity.
The second condition is the simplest: if the contract is not directly connected with the customer’s economic activity, the customer will be treated like an “ordinary” consumer in every respect.
The contract should be interpreted in the spirit of Civil Code Art. 65. What counts therefore is the mutual intent of the parties, rather than the literal wording of the contract. This would make it risky to frame the contract so that the strict wording states that the dealings with the customer are of a professional nature for the customer, when in reality are not.
For example, if a dentist buys a dental chair, the purchase is obviously connected to his professional practice, as he is a specialist in that field. But if the same dentist buys an office chair, the purchase would not be connected with his professional practice, as he is not a furniture specialist.
This raises an obvious problem: how should the seller, for example of an ordinary armchair, verify whether the buyer is a specialist (e.g. an interior decorator)? Formally, this can be checked “in particular” based on the customer’s CEIDG entry. Applying this provision literally would mean that the armchair seller should verify whether the buyer’s CEIDG entry contains certain types of activity that would show that the armchair is a professional purchase for that customer—or even try to check other circumstances beyond the CEIDG entry.
The key question for the seller of ordinary armchairs thus boils down to whether it is worth checking hundreds of transactions by sole traders against their CEIDG entries and other circumstances, in order to avoid applying consumer provisions to some of them. Or, should the same, more consumer-friendly, provisions be applied in contracts with all individuals, regardless of whether they operate a business, or a specific type of business?
Using the example above, the second option obviously seems more convenient. It allows the seller to avoid the hassle of verifying each transaction, at the cost of abandoning the ability to treat some customers somewhat more advantageously than would be required by the regulations.
The situation looks entirely different for a supplier of dental chairs. It can assume in advance that any sole trader buying a dental chair is doing so in connection with the buyer’s professional practice. It is an item that in practice is purchased only for professional purposes.
An important question is what concrete difference there is between the rights of a consumer and the rights of a business customer, and what this difference is worth to the seller or service provider. Is it worth awarding customers conducting professional transactions the privileged status of a consumer, in order to facilitate the sales process (abandoning the need to verify customers’ CEIDG entries and possibly other circumstances)? The answer will depend on the specifics of the industry. In the case of sales of everyday items this approach clearly seems reasonable, but in the case of, for example, financial services, the answer is much more complicated.
Dr Antoni Bolecki, attorney-at-law, Competition practice, Wardyński & Partners