The Office of Competition and Consumer Protection in 2010 imposed a fine on a telecommunication operator. The company had to pay almost PLN 9.3m. The Office questioned the distance selling model in which a consumer had to sign a contract in the presence of a courier.
According to the UOKiK, clients had no conditions or time to read the agreement carefully in such a situation. The undertaking did not allow leaving the contract with the client to enable them to review its contents carefully. This could have prevented them from making a rational decision regarding long-term commitments.
UOKiK concluded the company applied an aggressive commercial practice. In its opinion, the company used its advantage and exerted an unacceptable influence on consumers. As a result, during a short visit of a courier, consumers might sign a contract, which they would not have done if they had time to read the documents. However, according to the regulations, the consumer must have a chance to review the contract template before signing it.
The regional and appeal courts did not agree with UOKiK’s assessment. They concluded that while ordering a courier, the consumer had already chosen the product, and that earlier they could find the contract on the company’s website or ask a consultant to read it on the phone.
The Supreme Court (Ref. No. III SK 45/16), while considering the cassation appeal of UOKiK, had doubts as to how the provisions of the Unfair Business-to-Consumer Commercial Practices Directive should be interpreted in this case. It provides a definition of aggressive commercial practices. According to it, they may take place when, for example, due to undue influence, the average consumer has limited freedom of choice, which may result in him making a wrong decision. In turn, an undue influence means using the advantage against the consumer to exert a pressure on them.
The Supreme Court asked the Court of Justice of the EU to clarify whether the distance selling model, in which the customer must make a final decision in the presence of a courier, without a possibility to review the contract freely, can be considered an aggressive commercial practice.
