Omnibus Directive: the practical implementation of the legislation in Poland
Published on 10th Oct 2023
What actions has the competition and consumer protections authority taken and what new obligations are on the horizon?
The president of the Office for the Protection of Competition and Consumers (OCCP) has advised entrepreneurs to comply with the rules of the Omnibus Directive that were implemented in Poland on 1 January 2023. For more than 10 months now, the OCCP has been reviewing whether and how entrepreneurs have adapted to the requirements of the directive.
Actions to date have included a provider of medical services and products charged with presenting reviews recommending services and products, without proper verification of their authenticity, in a manner misleading to consumers.
A provider of business cards in an online map service was also fined PLN 40,000.00 for using false reviews.
These actions relate to the entrepreneurs' obligation to demonstrate whether and how the published reviews have been verified as coming from actual consumers who have purchased and used the product or service.
Entrepreneur or private individual?
The OCCP brought charges against three international entrepreneurs for insufficiently clearly indicating whether a consumer is contracting with an entrepreneur or a private individual on their platforms, and also placed 19 other entities under scrutiny, including: the largest Polish online marketplace, a leading Polish bookstore chain and one of the largest social media platforms.
This action relates to the obligation to inform the consumer whether the seller is an entrepreneur or another consumer.
Correct price communicated?
The OCCP conducted a scrutiny of the activities of around 40 entrepreneurs regarding the correct communication of the product price to consumers at the time of the discount.
Four international entrepreneurs faced charges connected to improper informing consumers of the lowest price from the last 30 days before the price reduction.
These actions related to the obligation to communicate the lowest price of the last 30 days before the price reduction, in the event of a price reduction of products or services offered to consumers.
New obligations on the horizon
The OCCP's intensive activity to date does not exhaust the list of new obligations imposed on entrepreneurs. It is likely that it will now focus on:
- An obligation to include a contact telephone number for the entrepreneur in the terms and conditions of the online shop.
- A ban on the resale to consumers of tickets that have been purchased using software that circumvents the technical limits imposed by the original distributor, so-called bots.
- An obligation to update the entrepreneur's liability provisions to comply with the directive.
- An obligation to adequately inform about the absence of a consumer right of withdrawal when offering digital products delivered online and products with digital content and to confirm that the customer has accepted the loss of this right.
- An obligation to inform the consumer that their personal data constitutes a means of payment in exchange for a specific benefit (for example, signing up to a newsletter in exchange for a discount).
- An obligation to disclose paid advertising, if used (for example, for product positioning).
- The obligation to inform the consumer of the sale of dual-quality products when two products with different qualities are offered as one.
The president of OCCP may impose a fine of up to 10% of the company's annual turnover if an official scrutiny reveals inadequate implementation of the above obligations.
Osborne Clarke services
As part of our services, we offer you an internal audit of the application of the provisions of the Omnibus directive. We also develop procedures and opinions and provide training on the application of the provisions of European consumer protection law, including the Omnibus directive. Feel free to get in touch!