Dear Readers,
 
We wish to present you the June issue of the WBW Weremczuk Bobel & Partners newsletter.
This month we focus on consumer matters: we discuss an amendment introducing increased protection of consumer rights and a bill on resolution of disputes between consumers and entrepreneurs.
We also inform on the planned changes of the EU regulations which aim at introducing the possibility to use official documents (e.g. vital statistic documents) issued in one EU member state in another member state, without the need to translate and authenticate it.   
 
We wish you a pleasant reading!
WBW Team
 

The European Parliament approved the simplified procedure of accepting official documents abroad

The European Parliament approved the simplified procedure of accepting official documents abroad.
On 9 June 2016, the new EU regulations were approved by the European Parliament. The Regulation no. 2016/679 of the European Parliament and the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data is supposed to lower the costs and formalities of filing such official documents as vital statistic certificates (birth certificates, marriage certificates) in another EU country than the one in which they have been issued. Furthermore, it will no longer be required to translate such documents as new multilingual forms will be introduced.
The new regulation may make life easier for over 14 million EU citizens who live in an EU country other than their place of origin.
Also the regulations regarding the requirement to obtain the so-called apostille, i.e. a stamp which is currently required to resolve certain administrative matters and which confirms the authenticity of such official documents as birth, marriage or death certificates issued in a foreign country. Under the new regulation, it will no longer be necessary to obtain this stamp in order to use an official document issued in another EU member state. This is because documents issued in one member state will be deemed authentic in another member state without a stamp confirming their authenticity.
The regulation also abolishes the obligation to provide, each time, a certified copy and a sworn translation of such official documents.  It will be possible to attach to such documents - as a translation aid - multilingual standard forms available in all official languages of the EU in order to avoid the necessity to translate such documents into a foreign language. Standard multilingual forms will replace translations attached to birth or death certificates, certificates confirming that one is alive, marriage and life partnership certificates, place of residence confirmation or confirmation of clear criminal record.  
The new rules will apply only to certain official documents aimed at confirming birth, confirming that one is alive, death certificates, confirmation of name and surname, marriage documents (including the certificate of no impediment to marriage and confirmation of marital status), divorce, separation or annulment, registration of a life partnership including the certificate of no impediment to conclude such a partnership and the status connected with registering such a partnership), dissolution of a life partnership, separation of partners, annulment of a partnership, origin of a child, adoption, confirmation of place of residence or place o stay, citizenship or confirmation of clear criminal record.  
The regulation also provides for an introduction of an information exchange system on the internal market within the scope of official documents (IMI) which is aimed at facilitating the verification of authenticity of official documents and preventing potential violations regarding such documents. 
The EU member states have two and a half years to implement the necessary solutions in order to make the regulation applicable. The new regulation is to fully come into effect in 2019.

Marta Szurek
lawyer

 

The government adopted the bill regarding disputes between a consumer and an entrepreneur

On 31 May 2016, the government adopted a bill on out-of-court resolution of consumer disputes presented to the President of the Office of Competition and Consumer Protection. The work on the project started in 2014. The bill needed to be drafted owing to the obligation to implement the ADR directive and a regulation on on-line resolution of consumer disputes (the so-called ODR regulation). The On-line Dispute Resolution website is to make it possible for consumers to file a complaint with regard to any on-line purchase made within the territory of the EU in just a few minutes, from the comfort of their chair. The website will facilitate automatic flow of documents between the parties as well as between the parties and a proper institution appointed for amicable consumer dispute resolution and approved by both parties. This may be mediation bodies or arbitration courts at private or state organisations such as the Office of Electronic Communications or its equivalents in other member states. A dispute will be resolved by this institution on the basis of the documents provided by the parties via the website.
According to the bill, the new act aims at making it possible for consumers to file applications for amicable dispute resolution with entrepreneurs to entities which ensure independent, impartial, transparent, efficient and fast methods of alternative dispute resolution (ADR entities). The access to cheap and efficient methods of consumer dispute resolution will also be beneficial to entrepreneurs who, this way, will gain a tool to avoid long and costly court proceedings on disputes with consumers. The ADR Directive provides for creating in all member states a unified system of out-of-court dispute resolution, which will cover any disputes between consumers and entrepreneurs in the EU market, arising from sale agreements or service agreements, also those concluded via the internet or cross-boarder agreements. 
Under the new regulation, the proceeding is supposed to be free of charge for consumers. ADR entities may provide for certain fees in their regulations, however, the amount of such fees may not impede the access to such a proceeding. Furthermore, it may turn out to be necessary to cover payments which arise during the examination of the dispute (e.g. the costs of appointing an expert). The bill also determines the obligations of entrepreneurs, with a particular focus on information obligation towards consumers. According to the new act, an entity authorised to conduct a consumer dispute resolution proceeding is an ADR entity entered into the register of authorised entities. An ADR entity may be any entity which is successfully entered into the register of entities authorised to out-of-court consumer dispute resolution and notified with the European Commission. It will be a publicly available register maintained by the President of the Office of Competition and Consumer Protection.
 
Marta Szurek
lawyer
 
 

The new regulations on consumer protection

On 17 April 2016, the amendment to the act on competition and consumer protection came into effect (Dz.U.2015.1634). The amendment was widely debated in entrepreneurship and consumer organisations. The changes it introduces aim at improving the position of consumers on the market. The amendment introduces several new notions and gives the President of  the Office of Competition and Consumer Protection new powers in the area of controlling abusive clauses and other matters which are vital from the point of view of the consumer.
The most important change introduced by the amendment is the possibility to inform in the media (radio and television) about potential threats to consumers in the form of pubic warning. If the Office of Competition and Consumer Protection, in the course of a proceeding on practices violating collective consumer interest, reasonably suspects that practices of an entrepreneur which violate collective consumer interest may cause significant damage, loss or have detrimental effect on a wide circle of consumers, the information in this respect can be published. Another novelty is the right of the President of OCCP to express opinions on pending legal proceedings before common courts which refer to competition and consumer protection, if such is to the benefit of public interest. The President of OCCP will not be under an obligation to express an opinion which is convergent with consumer interest in a given case but only to provide the court with an expert opinion in the area of competition and consumer protection. Such opinions will not be binding to the court, however, they may turn out to be very useful in the process of issuing judicial decisions.
Furthermore,  the existing register of abusive clauses will be substituted with a database created on the basis of administrative decisions made by the President of OCCP. The current register will be kept for 10 years following the date on which the amendment comes into effect but, from now on, it is an administrative decision of a given authority that will be decisive as to whether a given clause is an abusive clause or not, whereas in issuing such kind of decision it will be possible to determine the manner in which the effects of a continuing violation of a ban to use such abusive clauses should be redressed. This is an open list and it remains at the discretion of the President of OCCP . Therefore, the model of controlling specimen contracts will be similar to the currently binding procedures of controlling whether entrepreneurs obey the ban to use practices which limit competition or practices which violate the common interest of consumers.
Another very important change is that the President of OCCP will have the right to issue interim decisions in the course of a pending procedure regarding practices which violate the common interest of consumers. Such a decision obliges a given entrepreneurs to stop practices which may cause serious threat to the common interest of consumers which is difficult to eradicate. An interim decision is supposed to prevent threats of violation of consumers’ interest. An interim decision is issued for a specified period of time (with an option to extend it), however no longer than the date of issuing the final decision ending the proceeding in a given matter. Furthermore, it should be underlined that in an interim decision the entrepreneur is not burdened with any fine or penalty. It will be possible to appeal against such a decision to the Court of Competition and Consumer Protection but, as a rule, such an appeal will not be of suspensive character, i.e. it will not prevent the enforceability of such a decision.
Apart form the above-mentioned instruments and procedures reserved for the President of OCCP and the Office itself, the amendment also introduces two new institutions:
 
·         The ban on misselling (unfair sale), especially in the sales of financial services. It means that it is forbidden to offer and sell financial products in a manner which is questionable from the legal and ethical point of view. It will be forbidden to offer a consumer the purchase of financial services which are not suited to their needs, based on the information available to the entrepreneurs regarding the characteristics of a given consumer, or offering the purchase of such services in a manner which is inadequate to their character (e.g. an insurance agent who, intentionally or unintentionally, misleads the consumer as to the mechanism of a product on offer, its functions or use).
 
·         The institution of “mystery shopper”. It means that an employee of the Office - an inspector upon the consent of the Court of Competition and Consumer Protection issued at the request of the President of OCCP, visits a given institution undergoing an inspection and plays the role of a typical customer searching for a given product or service. The inspector asks a representative of the inspected entity various question about a given product or service in order to obtain full and reliable information on them. The material from the inspection is further analysed by the Office. It is assessed whether the consumer received all the vital information on the product and whether unfair sale took place, i.e. an attempt to talk the consumer into buying a product different that he in fact needed and searched for. 
The amendment will definitely influence the consumer market and increase the standards of consumer protection, especially in such sectors as finance, banking and insurance, where products are widely available and, at the same time, complicated and not necessary clear to an average consumer. We also need to bear in mind that the amendment will considerably reinforce the position of the Office of Competition and Consumer Protection and its President.
 
Rafał Sałata
lawyer
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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