New Powers of The Office Of Competition and Consumer Protection Authority of Poland

EU Regulation 2017/2394 of the European Parliament and of the EU Council regulation of December 12, 2017, on cooperation between national authorities responsible for the enforcement of consumer protection (and repealing Regulation (EC) No 2006/2004), obliged the Member States to modify their internal laws. The primary goal of the EU’s regulation mentioned above is to adapt regulations to the rapid development of technology in consumption environment. A proposal for the Amendment of the Act on Competition and Consumer Protection was introduced on September 23, 2020, to adapt Polish provisions to the EU laws. The amendment was not a civic project, but an initiative of the President of UOKiK. UOKiK is the Office of Competition and Consumer Protection in Poland. The Office is responsible for shaping antitrust policy and consumer protection. The legislative process of the amendment is currently pending and is expected to be finalized within 2022.

The purpose of the proposed amendment is to increase the effectiveness of the enforcement of the EU competition rules within the Polish internal market and to protect the consumers transacting online. Violations in e-shops might occur such as lack of proper marking of the prices or promotions, lack of details regarding cancellation rights, failure to provide necessary measures for identification of the website owner, incorrect privacy policy or cookies, and others. The justification papers of the proposed bill explicitly state that changes are needed and that the law must keep pace with reality.

The most controversial regulations in this amendment proposal are those which provide new competencies to the President of UOKiK. Several individuals have already criticized the draft, while others agreed that giving these new powers to the President of UOKiK is a necessary measure to keep consumers protected. These new powers are summarized below.

Cooperation with the Internal Security Agency or the Foreign Intelligence Agency of Poland and purchases under a false pretense

Under the proposed amendment, the President of UOKiK (under Art. 105ib) will be able (through the representatives appointed) to purchase items or services previously introducing himself as another person or entity. Currently, the legislation only allows the right to take the steps to purchase without finalizing the transaction. To realize such a mimic purchase under false presence, the President of UOKiK will make a request to the head of the Internal Security Agency or to the Foreign Intelligence Agency and ask for drafting or receiving documents needed to use as a false identity.

The purpose of this purchase through false pretense, is to test the purchasing path and check if there are any violations. While acting like a consumer and investigating, the representative will be able to record using video and audio equipment without informing the seller or the intermediating platform. If proven that the customer is treated contrary to the provisions of the law, the President of UOKiK will institute proceedings against the entrepreneur.

Cooperation with the police and enforcing the right to search

According to the draft, (Art. 105ib), the UOKiK’s inspector will be able to turn to the police if the transaction is about to involve a risk to his health or life. In addition, (under Art. 105n) the official, might request help from the police in the case of enforcing the right to search and enter a private property in the course of ongoing proceedings.

Cooperation with the Ministry of Finance and the National Revenue Administration

Subject to the regulations of the proposed amendment, the President of UOKiK will also be able to track the cash flow and flow of data in cooperation with the Ministry of Finance and the National Revenue Administration.

Creation of a registry for deleted domains

Subject to the proposal, the decision by UOKiK to remove an internet domain subject to the investigation and resulting violations, will result in the entry of such a domain in the Deleted Domains Register (art. 32b.1). The President of UOKiK with his final and immediate decision, will cause the internet service providers to be required to block access to such domain within 48 hours following the entry into this registry (Art. 32c). The Deleted Domains Register will be public and kept electronically, meaning that all the concerned individuals will be able to have direct access (Art. 32b. 2,3).

Other powers

The President, in the cases provided for in the law (Art. 49a), will be able to impose the following immediately, without the need to institute any proceedings:

• restrict access to the web interface; block website without any procedures beforehand (the entrepreneur will be unable to operate the website until a ruling is issued),
• order to remove or add content to the website (statements, warnings etc.),
• order to re-register the domain with another entity.

The entrepreneur against whom such measures are imposed will be able to convey its objections to the President of UOKiK within a specified period (not be less than fourteen days) from the receipt of the application.

If adopted, these changes proposed with the amendment into the previous regulation will come into force after fourteen (14) days starting from the date of the announcement of the law in the Official Journal of the Republic of Poland, except for the ones related to the Deleted Domains Register, which will come into effect after three (3) months following the publication.

The proposed amendment is being criticized widely. On October 8, 2020, in an official letter to the President of UOKiK, the spokesperson of Small and Medium-Sized Enterprises Association Mr Adam Abramowicz had criticized the draft by stating that it may pose a significant threat to economic freedom as well as to the interests of trustworthy entrepreneurs. He noted that the possibility of issuing a decision ordering the inclusion of the indicated warning, removal of content from a website or of a domain should depend on a Court order subject to due process rather than the discretion of the President of UOKiK. Moreover, he stressed that these measures should be considered as last resort, used only when other and less intrusive measures are not capable of bringing the infringement to an end. In addition to criticism based on such excessive powers and lack of due process, it is again widely noted that the effectiveness of such measures that may be implied towards companies that are non-resident in Poland shall be improved, otherwise causing inequality between foreign and Poland-based entrepreneurs.