Implementation of the Digital Content and Services Directive and the Sales of Goods Directive in Poland
Poland faces the implementation of two EU pro-consumer directives essential for the e-commerce sector:
Directive (EU) 2019/770 of the European Parliament and of the Council of May 20, 2019, on certain aspects concerning contracts for the supply of digital content and digital services (the Digital Content and Services Directive or the DCSD);
Directive (EU) 2019/771 of the European Parliament and of the Council of May 20, 2019, on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC and repealing Directive 1999/44/EC (the Sales of Goods Directive or the SGD).
On June 29, 2022, the government draft act amending the act on consumer rights and certain other acts was submitted to the Polish Parliament (the Draft Act).
Subject to certain exceptions set forth in directives, member states shall not adopt or maintain regulations that differ from those adopted in the directives (the maximum harmonization).
The Draft Act revises the act on consumer rights general provisions by adding missing definitions, clarifying the scope of regulation or delineating between the scope of application of SGD and DCSD.
The two directives are intended to complement each other. The Draft Act also proposes a similar division by splitting new provisions regarding the supply of digital content or digital services and the sale of goods (including those with digital elements).
Consumer Warranty and Guarantee
The trader will be liable for the lack of conformity of the goods if the consumer was not expressly informed that a specific attribute of the goods deviates from the contract’s requirements and expressly and separately did not accept the lack of a specific attribute of the goods.
Additionally, the trader will be liable for any lack of conformity of the goods resulting from incorrect installation of the goods under certain circumstances.
Time Scope of Liability
New provisions regulate trader’s liability for lack of conformity of the goods that existed at the time of delivery and that is discovered within two years of that time, unless the expiry date of the goods determined (e.g. by the trader) is longer.
For goods with digital elements, the trader’s liability concerning the non-conformity occurred when, according to the agreement, they were to be provided. This time shall not be less than two years from delivering the goods with digital elements.
If the goods do not conform to the contract, the consumer may demand their repair or replacement. The trader may make the replacement when the consumer requests repair, or the trader may repair when the consumer requests replacement if it is impossible or would require excessive costs for the trader to bring the goods into conformity with the contract in the manner chosen by the consumer.
Additionally, the consumer may make a statement to either reduce the price or withdraw from the agreement if certain conditions are met.
The new regulations also address issues such as the cost of exercising consumer rights (scope, deadlines and method of reimbursement) and limiting the right of withdrawal.
Rights and Obligations of Parties to Contracts for the Supply of Digital Content or Digital Services
The Manner of Performance of the Obligation to Provide Digital Content or Services
Article 43h addresses the performance of the obligation to provide digital content or services and the consumer’s rights in case of non-performance.
The trader shall provide the consumer with the digital content or service immediately after the conclusion of the contract unless otherwise agreed by the parties. The new regulations specify when delivery can be considered to have been made.
The consumer may withdraw from the contract without calling for the digital content or service supply only if certain circumstances apply (e.g., if the trader has stated, or it is clear from the circumstances, that they will not supply the digital content or service).
New articles 43i-43m deal with the compliance of the digital content or digital service with the agreement and the trader’s liability in the absence thereof. Article 42i imposes an obligation of subjective and objective conformity with the contract.
The trader will be required to inform the consumer of updates, including security features, necessary to make the digital content or digital service with the contract and provide them to the consumer for a specified time. The user’s failure to install the update for reasons outside of the trader’s control may be grounds for excluding it’s liability.
Additionally, the trader shall not be liable where the consumer, at the latest at the time of the conclusion of the contract, has been clearly informed that a specific characteristic of the digital content or service departs from the requirements for conformity with the contract and has explicitly and separately accepted this lack.
Time Scope of Liability
Article 43j (1) and (3) set out the time limits on the trader’s liability for the non-conformity of digital content or service when supplied on a one-off, partial or continuous basis, as well as the circumstances indicating when the trader’s presumption of liability may be rebutted (Article 43j (5)). For example, the trader’s liability for the digital content or digital service supplied on a one-off basis or in parts applies to two years from delivery.
According to Article 43k, the consumer will have the right to bring the digital content or service into conformity with the contract. The trader may refuse to do so only if it is impossible or would require excessive cost.
Article 43l(1) specifies when a consumer is entitled to make a statement on price reduction or rescission of the contract, e.g., if the lack of conformity continues despite of trader’s actions or it is clear from the trader’s statements or the circumstances that the trader will not bring the digital content or digital service into conformity with the contract within a reasonable time or without excessive inconvenience to the consumer. In certain situations, it is justified for the consumer to have the right to an immediate price reduction or to withdraw from the contract.
The new regulations specify also how to determine the reduced price and when the consumer may not withdraw from the contract.
Content Created by the Consumer
New article 43m creates a duty for the trader not to use content the content other than personal data created or supplied by the consumer after the consumer has withdrawn from the contract except for specific situations.
A trader shall make available to the consumer, at the consumer’s request, the content mentioned above except the range specified in the Draft Act (e.g., when content is only useful in connection with the digital content or digital service that constituted the subject matter of the contract).
Change to Digital Content or a Digital Service
A trader may change to digital content or a digital service, which is not necessary to conform with the agreement, only if the agreement provides and only for valid reasons indicated in the contract. However, the trader may not make a change to digital content or a digital service provided on a one-off basis.
If the change significantly and adversely affects the consumer’s access to, or use of, the digital content or digital service, this affects the obligations of the trader (information obligations) and the rights of the consumer (termination of the contract).
Exclusion of the Application of the Act to Digital Content and Services
The provisions regarding digital content or digital services will not always be applicable to the entire agreement (the contracts involving the provision of various services) and shall not apply to certain type of services mentioned in the Draft Act (e.g., electronic communications services).
What Are the Risks of Non-compliance With Forthcoming Changes?
The most global risk is the need to incur additional costs related to contracts with consumers that have not addressed all the necessary issues and for which the trader has not obtained the relevant statements.
A trader who fails to adapt their standard templates and other contractual documentation regarding the sale to the new regulations and leaves the existing warranty and guarantee entitlements in place could be considered as misleading for the consumer. This situation may cause risk of a claim for damages and cancellation of the contract and return of the price paid, as well as risk of a fine of up to 10% of the entrepreneur’s prior year’s revenue by the President of the Office of Competition and Consumer Protection.