Agnieszka Trzaska-Śmieszek
Magdalena OsmędaLegislative work on the draft act amending the Act on Pursuing Claims in Group Proceedings and certain other acts (RCL, UC 139) – aimed at implementing into the Polish legal system the solutions provided for in 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”) – is progressing steadily. At the end of August, a new version of the draft was published on the website of the Government Legislative Centre, referred to as the draft of 17 August 2023. The draft of 17 August 2023 does not differ significantly from the previously released version of 5 July 2023, which we discussed in earlier posts; our comments on the 05.07.2023 draft remain valid. The main novelty introduced in the August draft is the inclusion of a definition of the “collective interests of consumers”.
According to the proposed Article 1(2d) of the UDRPG1: “Collective interests of consumers shall mean the interest of all consumers, which, in the case of proceedings concerning claims related to the use of practices infringing collective interests of consumers, includes the interests of a group of consumers”.
The explanatory memorandum to the draft states that: “This provision implements the concept of ‘collective interests of consumers’ as referred to in Article 3(3) of Directive 2020/1828. The draft adopts the term ‘general interests of consumers’ to express this concept from the Directive. This results from the need to distinguish this term from the concept of ‘collective interests of consumers’ used in the context of the Act on Competition and Consumer Protection (UOKIK). In the Polish legal system, the term ‘collective interests of consumers’ is already well established and is used in the UOKIK Act. The UOKIK Act itself does not define the term ‘collective interest of consumers,’ but Article 24(3) specifies that it does not mean the sum of individual consumer interests (contrary to Directive 2020/1828). An infringement of collective consumer interests, therefore, means a risk of harm to the interests of a certain group or all consumers as a result of a business practice. Protection of collective consumer interests occurs when the entrepreneur’s conduct is widespread in the sense that it may affect any consumer who is or could potentially become a contracting party to the entrepreneur, understood as a collective. The infringement has a general character. Importantly, however, the concept of ‘collective interests of consumers’ in the context of the UOKIK act does not include the sum of individual consumer interests”.
The concept of the general interests of consumers does not appear in our legislation. The Act on Competition and Consumer Protection (Us.OKIK)2 uses the category of collective interests of consumers, defining it in negative terms in Article 24(3) of the Act, which states: “The collective interest of consumers is not the sum of individual interests of consumers”.
Directive 2020/1828, on the other hand, uses the term “collective interests of consumers”, defined as: “‘collective interests of consumers’ means the general interest of consumers and, in particular for redress measures, the interests of a group of consumers”.
Is the introduction of such a new conceptual category (the notion of “general interests of consumers”), therefore, truly necessary?
In the explanatory memorandum to the draft act, it was indicated that the term “collective interests of consumers” in Directive 2020/1828 has a different meaning from the term “collective interests of consumers” in the Act on Competition and Consumer Protection. Hence, the introduction of the new term “general interests of consumers”, which encompasses both collective and individual consumer interests.
Moreover, the draft provides, in the proposed Article 1a of the Act on Pursuing Claims in Group Proceedings (UDRPG), a definition of a practice infringing the general interests of consumers (“A practice infringing the general interests of consumers shall mean an act or omission of a trader that is contrary to the provisions implementing acts of European Union law and the provisions of European Union regulations referred to in Annex I to 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”).
It seems that the new conceptual category is intended to distinguish matters falling within the “jurisdiction” of the President of the Office of Competition and Consumer Protection (UOKIK) and to clearly emphasize that the new regulations also cover claims concerning individual interests, which are excluded from the jurisdiction of the President of UOKIK under Article 24(3) of the Act on Competition and Consumer Protection.
A class action for cessation of practices infringing the general interests of consumers and claims related to their application is intended to supplement the system of consumer rights protection – but in the case of proceedings initiated by the competition and consumer protection authority, the draft gives “priority” to the administrative proceedings conducted by the President of UOKIK.
The President of UOKIK will be able to participate in pending class proceedings concerning cessation of practices infringing the general interests of consumers – in such a case, the provisions on the public prosecutor shall apply accordingly (see proposed Article 4a of the UDRPG). Moreover, the draft stipulates that class proceedings will be suspended in the event of a “conflict” with proceedings conducted by the President of UOKIK (see proposed Article 10c of the UDRPG).
1 the Act of 17 December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws of 2020, item 446; hereinafter: “UDRPG”)
2 the Act of February 16, 2007, on Competition and Consumer Protection (Journal of Laws of 2021, item 275; hereinafter: the “Act on Competition and Consumer Protection” or “Us.OKIK”)
