Implementation of the Directives concerning contracts for the supply of digital content and contracts for the sale of goods

11 August 2022 | Knowledge, News

On 29 June 2022, the draft new legislation was submitted to the Sejm with a view to implement Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and services, and Directive 2019/771 on certain aspects concerning contracts for the sale of goods. It is likely that the changes will enter into force nearly one year after the deadlines set in the Directives, since the new legislation should have been implemented into the Polish legal regime by 1 July 2021 and should have applied from 1 January 2022.

On 6 July 2022, the draft was referred to the first reading, but the related legislative work may take several more weeks or even months. The envisaged changes are expected to enter into force within 14 days of the implementing act being published.

Possible deterioration in the status of consumers

The draft provides for a number of changes to the current legislation. The Directives are based – with some exceptions – on the principle of maximum harmonisation. This means that national provisions may not be stricter or more lenient than those provided for in the implemented legislation. The drafters anticipate that some of the envisaged changes may result in an actual worsening of the status of consumers in their relations with companies.

Major changes

The draft provides for the exclusion of warranty (pl. rękojmia) and guarantee (pl. gwarancja) provisions in relations with consumers from the Civil Code and their transfer to the Consumer Rights Act.

It further provides for a number of changes to the hitherto binding provisions on the liability of traders towards consumers for defects of sold goods.

In adapting the Polish provisions to the wording of the Directives, the detailed conditions that goods must meet in order not to be deemed incompatible with the contract have been defined. The term “defective” is to be replaced by the phrase “not in conformity with the contract”, which is a return to the terminology used in consumer legislation several years ago.

The new legislation defines the temporal limits of traders’ liability under warranty and the scope of the shift of the burden of proof, also clarifying from which point in time traders are liable for the lack of conformity of its goods with the contract, which lack of conformity existed at the time of supply and became apparent within two years of supply.

The draft provides for significant changes to the regulations concerning consumer rights under warranty, as well as traders’ obligations related to those rights. In particular, this relates to the hierarchy of remedies available to consumers, who will have the right to first demand the restoration of the conformity of goods with the contract by repair or replacement, and only later – if the repair or replacement prove, for example, uneconomic – will they be able to exercise further rights, i.e. demand a price reduction or withdraw from the contract.

New regulations for consumers of digital services

The Consumer Rights Act is also to include new provisions on the rules and procedures for the exercise of the rights of consumers who are a party to a digital content or digital service contract. The draft provides, inter alia, for introducing a number of definitions of terms related to digital services (such as: goods with digital elements, digital environment, integration, compatibility, functionality, i.e. the ability of digital content, a digital service or goods to perform their functions having regard to their purpose, and interoperability), as well as the definition of the digital service itself.

The most significant provisions to be introduced into the Consumer Rights Act under the draft lay down:

  • The manner in which the obligation to provide digital content or digital services is to be fulfilled, and consumer rights in the event of non-performance,
  • Criteria for the conformity of digital content or digital services and the extent of traders’ liability for non-conformity,
  • The time limit within which the non-conformity of digital content or digital services gives rise to traders’ liability: according to the draft, traders will be liable for the non-conformity with the contract of digital content or digital services, delivered either in one go or in parts, when such non-conformity existed at the time of supply and became apparent within two years of supply. The new legislation introduces a presumption that the lack of conformity existed at the time of supply of digital content or digital services if such lack of conformity became apparent for up to one year following the supply of digital content or digital services, and
  • Rules for modifying digital content or digital services at the time of supply.

Mandatory guarantee elements 

The draft further provides for the introduction of a list of mandatory elements that must be included by traders in their guarantee statements, including a clear statement that, in the event of non-conformity of sold items with the contract, the buyer is legally entitled to remedies from and at the expense of the seller, and that these remedies are not affected by the guarantee. The statement must also include the name and address of the guarantor, the procedure to be followed to use the guarantee and a list of items to which the guarantee applies and the guarantee terms.

Actions to be taken by traders

The new legislation implies changes to the rules of sale of goods, digital content and services. The content of the guarantees provided and the procedures relating to the handling and exercise of consumer claims will need to be reviewed and will likely be amended.

Any questions? Contact the author

Agnieszka Choromańska-Malicka

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