Traditionally, a mystery shopper is used for business audits and customer satisfaction surveys. Since 2016, the president of the Office of Competition and Consumer Protection has also been entitled to use this legal instrument. But in each case the authority must obtain prior approval of the Court of Competition and Consumer Protection.
A controlled purchase is a legal instrument enabling an analysis of the sales process for goods and services in consumer dealings (B2C). But thanks to the authorisation contained in Art. 105ia of the Competition and Consumer Protection Act, representatives of the Office of Competition and Consumer Protection (UOKiK) may carry out inspections using this institution to obtain possible evidence of practices infringing the collective interests of consumers.
The course of inspection activities may be recorded using audio or video equipment. During the activity, the business operator is not aware that an inspection is being conducted or that the person interested in buying the goods or services is actually a UOKiK employee. Thus, this operation is meant to capture the actual, typical process followed by the business when concluding contracts with consumers. It is worth remembering that for infringement of the collective interests of consumers, a business can be fined up to 10% of its annual turnover.
Often, violations of collective interests of consumers occur during commercial demonstrations, in which elderly people are most often targeted. Hence, UOKiK employees take part in such events to see for themselves how products are presented and consumer contracts are concluded outside of business premises.
UOKiK conducted its first inspection using a mystery shopper in 2018. The purpose of the intervention was to determine the true nature of meetings with consumers described as “medical examinations.” The intervention revealed that behind the invitations there were de facto commercial demonstrations where quasi-medical products were offered to consumers.
Due to incessant consumer complaints over prohibited manipulations during commercial demonstrations, UOKiK has taken further actions using this institution. A 2019 intervention uncovered a number of irregularities such as unwanted telemarketing, concealing the commercial purpose of product demonstrations, misleading consumers on the state of their health, applying unacceptable pressure, and restricting the right to withdraw from the contract.
Using the institution of the mystery shopper, UOKiK proved that consumer rights were violated in controlled commercial demonstrations, including by misleading consumers as to promotional prices. According to UOKiK, the information on the alleged promotion was only supposed to encourage consumers to make a purchase decision during the presentation. A fine of over PLN 2.7 million was imposed on the undertaking (decision no. RPZ-4/2019) for infringement of the collective interests of consumers.
The number of mystery shopper inspections may increase following implementation of the Consumer Protection Cooperation (CPC) Regulation ((EU) 2017/2394). Under provisions currently in force, an UOKiK employee playing the role of a mystery shopper can only “obtain information that may constitute evidence of practices violating the collective interests of consumers,” but cannot enter a sales contract as such. The CPC Regulation will give UOKiK the ability to purchase certain goods or services. As stated by the president of UOKiK, “This will allow us to better verify whether a consumer has been misled or a business is applying practices infringing the collective interests of consumers.” However, we will have to wait to see the effects of the new regulations.
In the context of commercial demonstrations, the ongoing legislative work related to implementation of the Enforcement and Modernisation Directive ((EU) 2019/2161) also deserves special attention. The proposed regulations provide for strengthening of consumer protection in relation to unfair practices taking place during such demonstrations, among other things. In particular, the new solutions would ban conclusion of financial services contracts during such demonstrations, or accepting payment before the end of the withdrawal period with regards to certain contracts concluded outside of business premises.
Agnieszka Jelska, attorney-at-law, Bartosz Piętka, Competition & Consumer Protection practice, Wardyński & Partners