Dear Sirs,


We would like to share the July issue of the newsletter by WBW Weremczuk Bobeł & Partners' law firm.
First, we recommend the article about changes to the consumer law which will lead to granting new rights to consumers who make purchases online. In another text, we analyze plans to reform the procedure of reviewing the lawfulness of terms included in standard contracts, which takes place before the competition and consumer protection court.
In addition to that, we discuss the decision which the Supreme Court issued a few weeks ago on the validity of a juridical act which has been made by the person who is not authorized but is disclosed in the register of entrepreneurs as an entity authorized to act on behalf of the company.
In another article, we present the Supreme Court’s resolution on the reimbursement of the costs of accommodation which is to be provided to professional drivers working in international transport.
We hope you enjoy reading our newsletter.


The Team

Consumer Rights Act gives new rights to consumers who make purchases online.

In December 2014, a new act on consumer rights will enter into force, giving numerous rights to consumers and imposing additional obligations on entrepreneurs. What is especially worth noting is that the act will affect e-commerce and that, in many cases, online shops will have to amend their current terms and conditions.

First of all, the act will impose on entrepreneurs the obligation to provide customers with much more information than is currently required. The entrepreneur will be required to inform the customer, among others, on the company's mailing address as well as its register number, email address, phone number at which the seller can be contacted, the total price or remuneration for the performance including taxes or, if the nature of the object of the performance makes it impossible to calculate such a price or remuneration in advance, the manner in which the price or remuneration will be calculated as well as shipping, delivery and mailing service charges and any other costs.

The entrepreneur will have to provide all the information required under the Act using a simple language, in a manner which is easy to understand and corresponds to the means of distance communication used. As a result, terms and conditions of many online shops will have to be amended.

In addition to that, the entrepreneur who sells products or offers services online will have to ensure that the customer who places an order online expressly confirms that they are aware of the requirement to make a payment which follows from placing an order. If it is necessary to press a button to place an order, the button will have to be marked in a clear manner which is easy to understand, e.g. with words “order with a requirement to pay.” Those regulations are to prevent the situations in which money is obtained from the customer under false pretenses because information about required payments is included in long terms and conditions which the customer does not always read. When the new regulations enter into force, the customer will not have to pay any additional fees or charges if they have not been properly informed about such fees or charges prior to placing an order.

If the entrepreneur offers the consumer to conclude a contract over the phone, the consumer's declaration to enter into the contract will be effective if, upon receiving a confirmation from the entrepreneur, such a declaration is recorded in writing or in another permanent manner.

One of more significant changes will be related to the right to withdraw from a contract. If the purchase is made online, the consumer will have the right to withdraw from the contract without giving any reasons within 14 days from the receipt of the goods ordered (currently it is 10 days). The customer who is not informed about their right to return the goods will be automatically granted the right to withdraw from the sales contract within as many as 12 months.

If the customer withdraws from the contract, the entrepreneur will have to give them a refund including not only the price of the goods but also the sum received to cover the costs of delivering the goods.

The regulations introducing the obligation to inform the customer about their right to withdraw from the contract without any consequences (legal or material) will make it necessary for many online shops to draw up new terms and conditions. At the same time, those laws will be aimed at providing better protection for buyers who purchase goods in the traditional manner as well as to those who shop online.

Agnieszka Stawicka, legal counsel trainee


Validity of a juridical act made by the person who is not authorized but is disclosed in the register.

On 12th February 2014, the Supreme Court (case file number IV CSK 361/13) rendered a judgment in which it decided that a juridical act made by a limited liability company represented by a dismissed member of the management board who, at the time of making the act, was still disclosed in the register of entrepreneurs, is not subject to the sanction of absolute nullity.
The judgment in question was rendered in the case in which the claimant demanded that the enforcement order in the form of a notarial deed cease to be enforceable as the member of the management board of the claimant company subjected the claimant company to execution for the benefit of the defendant company even though the day before making the juridical act that member was dismissed from the management board. However, on the day when the juridical act was made, the member was still disclosed in the National Court Register as a member of the management board.
The action was dismissed by the court of first instance after re-examination. The Court of Appeal dismissed the claimant's appeal, stating that the resolution on dismissing the member of the management board of the claimant company has been effective in internal relations from the moment when it was passed and its effectiveness is not dependent on notifying the dismissed member of the content of the resolution. Nevertheless, third persons who act in good faith are protected by the principle of substantive disclosure of the register (Article 14 of the National Court Register Act) and the principle of presumption that the data entered into the register is true (Article 17.1 of the National Court Register Act).
The Supreme Court took the same view as the Court of Appeal, stating that the aim of Articles 14 and 17 of the National Court Register Act is to protect persons who take actions in reliance on the veracity of entries and announcements of entries and that it is not possible to effectively challenge the effectiveness of a juridical act made by the person who is still disclosed in the register as an authorized representative of the legal person but is already de iure unauthorized to act on behalf of that legal person having been dismissed from the position of a member of the company governing body. This means that a juridical act is not invalid if it is made by the person who, at the moment of making such an act on behalf of the legal person, was no longer a member of that legal person's governing body but was still disclosed in the register as authorized to represent the legal person. Validity of juridical acts is regulated not only by the rules which follow from Articles 38 and 39 of the Polish Civil Code but also by the system of presumptions which is adopted in the provisions of the National Court Register Act. Those provisions supersede the provisions of the Civil Code as they are more specific, which should be taken into consideration while noting that Article 14 of the National Court Register Act differs from the Civil Code in its definition of legal effects of a failure to make a required entry in the register. The opposite of such a failure is, as in the case in question, presence of an entry which no longer corresponds to the actual legal status. Because the juridical act challenged by the claimant was made in the circumstances defined in Article 14 of the National Court Register Act, that act is legally binding in the claimant's relations with third parties.
The interpretation of Articles 14 and 17 of the National Court Register Act, which determines effects of juridical acts made with reference to the contents of entries disclosed in the register of entrepreneurs, protects the interests of entities participating in transactions because the entity who acts in reliance on the contents of those entries cannot be in a situation which is less beneficial than a situation which it would be in if the actual legal status corresponded to the legal status disclosed in the register.


Katarzyna Brzoziewska, attorney trainee

 

Supreme Court protects the rights of professional drivers.

On 12th June 2014, the Supreme Court in the panel of seven judges passed a resolution settling case no. II PZP 1/14. This resolution is important for all entrepreneurs who employ professional drivers performing tasks related to long-distance transport of goods. The Supreme Court passed the resolution in relation to the legal issue which it received for review and which had been previously settled in various ways by courts of lower instance, namely the question of whether or not providing a sleeping space in the driver's cab for the professional driver while they travel in the course of work in international road transport can be classified as providing the driver with a free-of-charge accommodation within the meaning of Section 9.4 of the Ordinance of the Minister of Labor and Social Policy of 19th December 2002 on the amount and rules of calculation of payments due to an employee of a state or self-government unit financed with the state budget in connection with business travel abroad (which is no longer in force as it was amended by the Ordinance of the Minister of Labor and Social Policy of 29th January 2013 on payments due to an employee of a state or self-government unit financed with the state budget in connection with business travel abroad, of which regulations included in Section 16.4 are essentially the same with regard to the issue in question as the ones included in the earlier ordinance) in connection with Article 77.5 of the Labor Code and Article 21a of the Act of 16th April 2004 on the working time of drivers.

The Supreme Court stated that, taking into consideration the progress of civilization, it cannot be said that, in the 21st century, the employee who is provided with a sleeping space in the driver's cab of a commercial vehicle can be regarded as provided with a legitimate night-time rest. The Court also came to the conclusion that, having regard to the rates which are defined in the annex to the aforementioned ordinance as the maximum rates at which employers are to reimburse costs of accommodation in particular countries, the legislator must mean accommodation in a hotel or a motel or at least in a section of a vehicle which is separated and designated through its construction to be a place of night-time rest. In addition to that, the Court pointed out that the employer derives an additional benefit from the fact the employed driver spends the night in the driver's cab of the car because the transported goods are more secure.

According to the Supreme Court, the employer's statutory duty is to cover the costs of the employee's travel, especially when the travel leads to a long-term separation from the center of the employee's personal life. The Court stated that it is indisputable that in the event that the employee spends the night in the driver's cab of the car, even when the cab is adapted by the employer to be a place of night-time rest, the employer is still obliged to reimburse the costs of accommodation. Even though the employee cannot provide a receipt for the nights spent in the driver's cab, they remain entitled (under Section 16.2 of the aforementioned ordinance) to the flat rate of 25% of the maximum amounts which are to be reimbursed for accommodation in a particular country, as set in the list included in the annex to the ordinance.

It is possible that the said resolution of the Supreme Court will be applied also to national transport because the rules of reimbursing the costs of accommodation are analogous in national and international transport.

Rafał Sałata, Paralegal


New procedure of performing a judicial review of the lawfulness of contractual terms.

At the beginning of June, an outline draft of the amendment to the Code of Civil Proceedings and other acts was submitted for inter-ministerial and public consultations by the Ministry of Justice. The principal aim of the amendment is a fundamental reform of the proceedings before the Competition and Consumer Protection Court (hereinafter referred to as CCPC) in relation to the so-called abstract judicial review of contractual terms. Such a review involves proceedings of which purpose is to check if a particular contractual term used by the entrepreneur in their standard contracts is compliant with the law.

The reform proposed by the Ministry of Justice is very far-reaching. First of all, the very procedure is supposed to be changed because contentious proceedings are to be replaced by non-contentious proceedings, which have a less adversarial nature (as parties’ input and significance in such proceedings is smaller) and are characterized by a bigger role played by the court, which takes more initiative in non-contentious proceedings than in contentious proceedings. The reform is supposed to help courts perform judicial reviews in a faster and more efficient manner.

The consequence of the above is another proposed reform which is to limit the number of entities who have the capacity to bring an action related to this category of cases. An ordinary citizen will be no longer able to bring an action related to the abstract judicial review of contractual terms. The legislator will enumerate all the entities who will have such a capacity and they will include, among others, the President of the Office of Competition and Consumer Protection, the Polish Financial Supervision, the President of the Office of Electronic Communications, the President of the Energy Regulatory Office, the Insurance Ombudsman, the Commissioner for Patients' Rights, poviat consumer ombudsmen and qualified consumers' associations which are entered into the register kept by the President of the Office of Competition and Consumer Protection only if they have been operating for at least 2 years and have at least 100 members. This reform is supposed to make proceedings related to this category of cases more efficient and professional.

The next proposed reform is the introduction of a new requirement, under which the CCPC will have to provide, ex officio, grounds for all decisions issued in relation to judicial reviews of contractual terms. This reform is supposed to ensure transparency and help entrepreneurs reduce their economic costs as they will always know why a particular contractual term has or has not been classified as prohibited. Having such a knowledge, every professional entrepreneur will be able to draw up their standard contracts in such a way so that they would be less likely to include prohibited terms.

In addition to that, every final decision in a case related to the judicial review of contractual terms will become effective in a wider range of situations. In practice, it means that the decision in such a case will be effective between the entrepreneur and all the consumers with whom the entrepreneur has concluded contracts based on the standard contract which includes a given contractual term. The decision will be also effective toward all the entities who are entitled to bring an action for the control of contractual terms. This reform is supposed to limit the opportunity to bring subsequent actions related to the same contractual term.

As a result of the above, the register of prohibited clauses will change its function. Because every decision issued by the CCPC will be effective in a wider range of situations, the register kept by the President of the Office of Competition and Consumer Protection will serve only as a source of information. In addition to that, there are plans to redesign the register in order to make it more accessible so that it would become easier to find information there. Finally, the CCPC website is to become a place for publishing all final decisions issued by CCPC, including decisions to dismiss actions related to the abstract judicial review of contractual terms as well as grounds for those decisions.

 Rafał Sałata, Paralegal

 

 

This Newsletter is for general informational purposes only. It is not intended and shall not be treated as professional advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.
   

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