A new reality dawns for Polish e-commerce in 2023

The new year has brought a range of significant changes for Polish e-commerce, related businesses and consumers. New regulations implementing the directives came into force on 1 January 2023. 

The new regulations will significantly affect the existing activities of many entrepreneurs; in particular, if they are operating in the e-commerce industry. However, marketing agencies, marketers or ordinary consumers should also familiarise themselves with the changes. 

Work on the much-anticipated implementation of these directives accelerated in Poland in late 2022, and included the Directive 2019/2161 on the better enforcement and modernisation of Union consumer protection rules, or the Omnibus Directive; the Directive 2019/771 on aspects of contracts for the sale of goods, or the Sale of Goods Directive; and the Directive 2019/770 on aspects of contracts for the supply of digital content and digital services, or the Digital Content Directive. 

These regulations are largely dictated by the desire to secure the interests of consumers in connection with the development of modern technologies and digitalisation of the economy, which translates into the possibility of reaching a wide range of customers and offering them new, increasingly complex services or products. 

Omnibus Directive

The Omnibus Directive introduces a range of information obligations for businesses regarding promotions and price reductions, authenticity of consumer reviews, ranking of a product within the search results, trader status, and personalisation based on automated decision-making. It also covers the functionality and interoperability of digital elements, digital content and digital services. 

The Omnibus Directive prohibits placing goods that are marketed as identical but have significantly different composition or characteristics. It also prohibits the resale to consumers of tickets to cultural and sports events that acquired by using automated means to circumvent any limit imposed on the number of tickets that a person can buy or any other rules applicable to the purchase of tickets; for example, by using bots.

Two more directives

The Sale of Goods Directive and the Digital Content Directive introduce a range of other reforms. These include the amendments to the statutory warranty and guarantee for consumers, as well as the notion of goods with digital elements will be introduced, as will the regulation of a new category of contracts for the supply of digital content and digital services. The new rules will also regulate contracts paid for with personal data.

Entrepreneur obligations

The entry into force of the provisions implementing these directives involves a number of obligations for entrepreneurs, which must be met in a timely manner in order not to incur a financial penalty. Due to poorly formulated regulations, owners of e-commerce shops may lose up to 10% of last year's revenue. At the same time, the deadline for their implementation in organisations is relatively short, considering that there needs to be adjustments not only to internal documents but also sales processes, including marketing processes, and methods of communication with clients need to be modified accordingly. This is particularly important from the perspective of developing the brand image. Currently, there are a number of widely discussed cases of online shops' websites where false promotions were revealed in which the discounted price was in fact higher than the regular one.

UOKiK action

Moreover, the Office of Competition and Consumer Protection (UOKiK) is monitoring what is currently happening on the internet in a more intensive manner, and what has started to take action against fake reviews on the internet. The UOKiK has already fined two companies for trading fake reviews and ratings. The president of UOKiK stated: "The publication of fake reviews on the Internet is a particularly reprehensible phenomenon. In this way, consumers are misled and their purchasing decisions are affected. It's also not fair to the competition - honest entrepreneurs do not buy ratings, which may result in, for example, poorer positioning in search engines."

UOKiK also examined popular websites in respect of shortcomings related to tagging advertising content. UOKiK has made allegations against two companies, which may result in a fine of up to 10% of turnover, and is also investigating two other entities. The regulator also analysed the practices of one of the most popular e-commerce platforms in Poland from the point of view of both competition and consumer protection. The first of the issued decisions concerned the abuse of a dominant position and the second one was related to the use of abusive clauses in contracts with consumers.

Osborne Clarke comment

Moreover, the European Commission is intensively working in this area. Currently, the Commission consults on whether the existing horizontal consumer law instruments remain adequate for ensuring a high level of consumer protection in the digital environment. 

The EU's "fitness check" of consumer law on digital fairness will examine the adequacy of its existing rules in dealing with consumer protection issues such as: consumers' vulnerability to the use of dark patterns, personalisation practices, and influencer marketing. Other areas of focus will include contract cancellation possibilities (in some jurisdictions, there is cancellation button, which significantly facilitates this process for the consumer), subscription service contracts, marketing of virtual items – for example, so-called "skins" in video games, and the addictive use of digital products.

There is a high probability that national competition and consumer protection authorities will continue to investigate the activities of online entrepreneurs, so no one can continue without adjusting to the upcoming changes.