Decision of the Court of Appeals in Szczecin 1st Civil Division of 28th August 2012
I ACz 399/12

1. One can consider a consumer as being a subject of legal relation only in correlation with an entrepreneur. A natural person, in order to become a consumer, should establish legal relations with an entity conducting business activity. In the case of the notion of a consumer, we are not dealing with the personal features of a natural person but the analysis of the obligational relationship, from which the claim is being pursued. In other words, whether a person is a consumer or not, is decided on the basis of whom they enter into relations with and what the nature of the relations is.
2. The operations of the municipality within the framework of executing one of its own tasks may constitute a business activity, it has to, however, meet the criteria of such a type of activity, which entails an organized and constant nature, is subject to the rules of the rationality of management, and constitutes a form of participation in economic transactions. It is not necessary for the activities of the municipality to generate indicated income.
3. It is obvious that on account of performing its own task, the local government is under obligation to satisfy residential needs of the self-government housing cooperative (vide Article 4 of the Act on the protection of tenant’s rights) regardless of the profitability, rationality of the undertaking. The small decision making freedom motivated by the need to provide apartments to low-income persons therefore excludes the normative premise of the rationality of management being a part of the notion of entrepreneur.
4. The form of the protection of tenants is not without meaning for the assessment as to whether the tenancy of communal premises is of an economic nature. The role of the Municipality (Commune) comes down to implementing the non-economic task of the public utility facility. Such a sphere of needs, which the free market – due to the unprofitability of the undertaking, fully omits. This is not business activity which is in essence characterized by the freedom of activity and the flexible approach to demand in order to ensure the profitability of the undertaking.