Agnieszka Trzaska-Śmieszek
Magdalena OsmędaOn 25 December 2023, one year passed since the deadline for the Member States to implement Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (hereinafter: “Directive 2020/1828”).
Poland remains among the few countries that have not yet implemented Directive 2020/1828 – although work on the text of the implementing act has been ongoing for over a year (the first draft of the act dates back to 6 December 2022). In previous posts, we discussed both the draft from 6 December 2022 and the drafts that followed – the draft from 5 July 2023 and the draft from 17 August 2023.
At present, the draft act implementing the directive has not been submitted to the Sejm. In November, another version of the draft Act amending the Act on Pursuing Claims in Group Proceedings and certain other acts was published on the website of the Government Legislation Centre – i.e., the draft dated 14 November 2023 (hereinafter: “Draft of 14.11.2023”). The Draft of 14.11.2023 was prepared following work in the Committee for European Affairs and differs only slightly from the previous draft from August this year. Therefore, our previous posts regarding the assumptions of the proposed legal regulations generally remain valid, subject to the changes indicated below. A comparison of the draft texts can be found here.
The Draft of 14.11.2023 clarifies that acts or omissions constituting a practice infringing the collective interests of consumers are acts/omissions – “which infringe or may infringe the collective interests of consumers” (see amended Article 1(4) and Article 1a of the UDRPG).
Another change concerns the consequences of the court determining that the funding of the qualified entity affects the proper protection of consumers’ interests in the ongoing group proceeding. The Draft of 14.11.2023 provides that the court, under the sanction of rejecting the claim, shall call on the qualified entity to take appropriate measures within the time limit set by the court, including in particular to refuse, return, or modify such funding, to ensure that the funding complies with the conditions laid down in Article 46h(5) of the Act of 16 February 2007 on Competition and Consumer Protection and ensures proper protection of consumers’ interests in the ongoing proceeding (see amended Article 10aa(4) of the UDRPG). In the previous version of the draft, the provision referred directly to rejection of the claim. Such a far-reaching sanction is not required by Article 10(3) of Directive 2020/1828; hence, the drafter has softened the consequences of non-compliant funding, allowing the qualified entity to “remedy” the situation and prevent rejection of the claim.
Next, it was clarified that a complaint against a court decision regarding a motion for the disclosure of evidence or for the annulment or amendment of a final decision ordering the disclosure of evidence, as well as against a decision imposing a fine, shall be lodged with the court of second instance (see Article 16(3), Article 16i(3) and (5), Article 16j(3), and Article 23b(2) of the UDRPG).
As regards the regulations concerning fines, a novelty is the introduction of an additional sanction for failure to comply with a final decision ordering the disclosure or delivery of evidence. In addition to a fine of up to PLN 50,000, the court will be able to impose on the party a fine of up to PLN 10,000 for each day of delay in complying with the final decision (see newly added paragraph 4 to Article 16i of the UDRPG). The drafter also introduced the possibility of imposing a coercive fine on the party to compel the trader to comply with a final judgment issued in a case concerning the cessation of practices infringing the collective interests of consumers – in the amount of up to PLN 50,000 for each day of delay in complying with the final judgment. This fine may be imposed independently of the fine of up to PLN 5,000,000, which the court may impose in the event of delay in the execution of the final judgment.
The last amendment to the proposed provisions of the UDRPG concerns the new Article 23a of the UDRPG, in which the drafter indicated the rulings that may be issued in the event of the upholding of an action for cessation of practices infringing the collective interests of consumers. In the operative part of the judgment, the court will 1) recognize the practice of the trader as infringing the collective interests of consumers and order the trader to cease its use and set a deadline by which the trader is to cease using this practice, or 2) recognize the practice of the trader as infringing the collective interests of consumers and indicate the deadline for ceasing the use of this practice by the trader. Additionally, in the operative part of the judgment, the court may impose on the trader the obligation to make a single or repeated statement, in an appropriate form and with appropriate content, regarding the use by the trader of practices infringing the collective interests of consumers (within a specified deadline).
As before, the Draft of 14.11.2023 provides that the Act shall enter into force 14 days after the date of its promulgation.
In summary, it may be hoped that the work on the draft act implementing Directive 2020/1828 is nearing completion and that the draft act will soon be submitted to the Sejm, and the upcoming new year will also bring a new type of collective action as a result of the implementation of Directive 2020/1828. The amendments in the Draft of 14.11.2023, in turn, indicate that the drafter is moving in the direction of further strengthening consumer protection. The new provisions providing a basis for imposing an additional (high) fine should be considered as an additional financial risk that entrepreneurs will have to face if they become involved in collective proceedings concerning the cessation of practices infringing the collective interests of consumers.
