Shopping in the EU
Parties to the contract
Consumer law applies whenever a sales contract is concluded between a consumer and a trader.
A consumer is a natural person who performs an act in law not directly connected with his/her economic or professional activity. For instance, if you buy a printer on behalf of your employer and the printer turns out defective, you cannot complain on the basis of your consumer rights. In the case of consumer sales, the other party to the transaction is a natural or legal person selling goods in the framework of his/her trade activity or enterprise.
Thus, the purpose of consumer law is to protect and empower consumers in relations with professionals. It should be noted that when goods are purchased from a private person, consumer law (namely guarantee, warranty, the right to withdraw from a contract) does not apply.
Despite constant development and the possibilities offered by technology, shopping in stationary shops remains the most popular way of concluding sales contracts. Before contract conclusion, traders must inform customers, inter alia, about the following (unless these are known from the context):
- trader identification data,
- the basic characteristics of the good or service,
- the total price of the good or service including all taxes; as well as all additional costs for transportation, delivery or postal services.
The seller is liable for lack of conformity of the good with the contract within two years from the date of contract conclusion. In addition a good may be accompanied by a guarantee document, but this is a voluntary declaration of the guarantor.
NOTE: In the case of a purchase in the business premises, there are no regulations on the consumer’s right to withdraw from the contract. This means that there is no legal obligation of a trader to accept returned goods without any reason. If the seller offers this possibility, it is only good will and takes place on the terms set out by the seller.
In the case of distance shopping or an off-premises contract, the consumer is subject to special protection resulting from the nature of the form of contract conclusion.
The conclusion of distance contracts is characterised by:
- using only means of distance communication until conclusion of the agreement inclusive,
- negotiations and conclusion of the contract take place without the simultaneous presence of both parties (seller and consumer).
Continuous developments in technology do not allow to draw up an exhaustive list of means of distance communication. Examples of the most common forms of contract conclusion are:
- mail order,
Unless the parties have agreed on another date, the trader supplies goods without undue delay, but not later than 30 days after the contract conclusion. When the trader fails to keep a date, the consumer calls on the trader to deliver the order in an additional period, applicable to the circumstances (e.g. 14 days). After ineffective expiration of the additional period, the consumer may withdraw from the contract.
- Making purchases by mail order or on the Internet stands for a conclusion of a binding legal contract.
- The consumer is not required to fulfil an obligation which he/she did not order – goods not ordered by the consumer are sent at the risk of the trader.
- In the case of a phone call, the consumer must be informed of the commercial purpose of the conversation.
- The consumer must be aware that an order placed using means of electronic communication entails the payment obligation. A confirmation of a placed order must be easily and clearly marked with the words “order with an obligation to pay” or an equivalent phrase.
An off-premises contract means any contract between the trader and the consumer:
- concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader (for instance at the consumer’s home, during a presentation at a hotel);
- concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader (for example beckoning a consumer from the street for a presentation in the business premises);
- concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer.
Business premises means:
- place of business being a real estate or a part of real estate where the trader carries out his activity on a permanent basis;
- any movable retail premises where the trader carries out his activity on a usual or permanent basis.
Therefore, business premises are both a standard shop and a stand in a market, fair, sale or a marked bazaar.
NOTE: The provisions do not apply in the case of off-premises contracts if the payment obligation does not exceed PLN 50.
Standard shopping Traders must inform customers, in a clear and comprehensible way, inter alia about the following (unless these are known from the context):
- the main features of the obligation,
- trader identification data,
- the total price or remuneration along with taxes and fees for delivery, postal services and any other costs,
- the manner and date of provision,
- the complaint handling procedure,
- trader’s liability for the quality of the obligation provided for in the law,
- the term of the contract or if the contract is concluded for an indefinite period of time or is to be automatically extended, the manner and reasons for termination of the contract.
NOTE: The foregoing obligations do not apply to minor everyday life contracts executed immediately after their conclusion.
Off-premises or distance shopping
Both in the case of distance contracts and off-premises contracts, the trader must inform the consumer prior to the conclusion of a contract inter alia about the following:
- trader identification data,
- the basic characteristics of the good or service,
- the total price or remuneration along with taxes and fees for delivery, postal services and any other additional costs,
- methods of payment, delivery or provision,
- the complaint procedure,
- in the case of the right to withdraw from the contract, the terms, dates and procedure of withdrawal,
- the cost of returning the goods in case of withdrawal
- the time limit within which the offer or price remain binding
After contract conclusion, the consumer must receive the confirmation of contract conclusion and the above information on a durable medium (e.g. on paper or by e-mail). The confirmation should be provided within a reasonable time, but not later than at the time of the delivery of the goods or before the performance of the service begins.
NOTE: In the case of off-premises or distance contracts, it is the trader that must provide evidence for fulfilment of information obligations.
Withdrawal from the contract
The consumer has the right to withdraw from an off-premises or a distance contract within 14 days without without giving any reason (the same time limit applies in the entire EU, Norway and Iceland). The withdrawal from the contract does not depend on consent of the trader – it is a unilateral declaration of will. The right to withdraw from the contract does not apply to purchases made in brick and mortar stores.
How to withdraw from the contract?
- In the case of service contracts the time limit of 14 days starts running on the day of contract conclusion, while in the case of sales contracts – on the day on which the consumer received the goods. If the consumer was not informed on the right of withdrawal, the time limit is extended to 12 months.
- In order to withdraw from the contract, the consumer must notify the trader about it observing the 14-day time limit. The notification should be made in writing and its copy should be kept for evidentiary purposes.
- The consumer should send back the goods not later than 14 days after having informed the trader about his decision to withdraw from the contract. The consumer bears only the direct cost of returning the goods, if he/she has been duly informed about it.
- An online shop cannot make the withdrawal of the consumer from a distance contract dependent on return of goods in the original packaging, which was not the object of sale, but served only to protect the goods. However, it is advisable to return the goods in the original packaging, if possible.
- The trader has an obligation to immediately, not later than 14 days after having been information about the consumer’s withdrawal from the contract, reimburse all payments received from the consumer, including the cost of goods delivery. The trader may withhold the reimbursement until he has received the goods back, or until he has received evidence that the goods were sent.
- If at the explicit request of the consumer, the service provision begins immediately, then in the case of withdrawal the consumer must pay for the service provided by the time of withdrawal.
- The consumer is liable only for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods.
Exceptions from the right of withdrawal:
- purchase of goods which are liable to deteriorate or expire rapidly (e.g. food)
- purchase of goods made to the consumer’s specifications or clearly personalised (e.g. custom made furniture, custom tailored suits, engraved jewellery)
- purchase of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery (e.g. medicinal products, wet wipes)
- purchase of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery
- purchase of accommodation (other than for residential purpose), transport of goods, car rental services, catering or services related to leisure activities, entertainment, sport or cultural events, if the contract provides for a specific date or period of performance.
NOTE:The Act on consumer rights does not apply to contract related to passenger transport, travel service contracts or timeshare contracts.
When filing a complaint about the goods, consumers may choose the legal basis of their claims, namely warranty or guarantee.
Every seller is liable based on warranty for physical defects (non-conformity with the contract) or legal defects of the sold consumer goods.
If a defect is found within 2 years from the moment of the goods provision (except for real property, where the liability period is 5 years).
Goods are in conformity with the contract if they:
- comply with the description given by the seller
- comply with the sample or with the model presented to the consumer
- are fit for any particular purpose of the consumer, which he made known to the seller
- possess the qualities normal in goods of the same type
- possess the qualities which the consumer can reasonably expect
- comply with public statements made by the seller, the producer or their representatives (e.g. in advertising or on labelling).
The seller is not liable for the lack of conformity of goods with the contract, if the consumer was aware of the lack of conformity upon contract conclusion, or if the lack of conformity has its origin in rials supplied by the consumer.
Pursuant to the EU regulations, Member States may provide that, in order to benefit from his rights, the consumer must inform the seller of the lack of conmateformity within a period of two months from the date on which he detected such lack of conformity. In the Polish law, the time limit was extended to one year.
In addition, unless the EU Member States decided otherwise, any lack of conformity which becomes apparent within six months of delivery is presumed to have existed at the time of delivery. The Polish legislator went further and extended the said period to one year.
The Polish law specifies the maximum period, i.e. 14 days for the trader to reply to the received consumer complaint. If the consumer requires replacement or repair, or price reduction, and does not receive a reply within the time limit, his claims are considered justified.
What can the consumer require under warranty?
The consumer may require:
- repair or replacement of the goods
- appropriate price reduction or withdrawal from the contract
If the buyer first requires appropriate price reduction or withdrawal from the contract, the trader may not accept such claim. In such case, the seller must, immediately and without significant inconvenience to the buyer, replace the defective goods to the good free from defect, or remove the defect.
Any repair or replacement of the goods should be completed within a reasonable time and is free of charge.
Remember that the consumer may withdraw from the contract only if the lack of conformity of the goods with the contract is significant. If the defect which became apparent is not significant, the consumer has the right to use other possible solutions.
Guarantee is, apart from warranty, one of the basis for filing a complaint. It is a voluntary statement about the quality of goods made by the trader, i.e. guarantor. A guarantor may be a producer, importer, distributor or seller.
A guarantee document should, as a minimum, specify:
- name and address of the guarantor
- territorial scope
- guarantee duration
- other basic data required to pursue claims under guarantee
The rules governing the complaints made under guarantee depend on the guarantee document provisions. In accordance with Polish law, if the guarantee declaration does not provide for a date, the trader shall perform his/her obligations immediately, but not later than within 14 days.
If the guarantee does not provide for another date, the guarantee period is 2 years from the date when the guarantee was issued to the buyer.
If it is impossible to execute a guarantee claim, the consumer still has the right to complain under warranty.
NOTE: The terms “European guarantee” and “international guarantee” are not legal terms. It is a common name for a guarantee document whose scope is defined as Europe/European Union or by specifying any countries of the world, respectively. Therefore, before making a purchase you need to check the territorial scope of guarantee.
Time limits and legal basis
- 14 days to withdraw from the contract starting from the day of contract conclusion in the case of service contracts, and from the day on which the consumer received the goods in the case of sales contracts
- 14 day to return the goods to the trader in the case of withdrawal from the contract
- 30 days for delivery of goods to the consumer, unless the parties agreed otherwise
- 2 years of the seller’s liability for the lack of goods with the contract
- 14 days for the trader’s reply to the received consumer complaint – if the Polish law applies
- 14 days for performing the guarantor’s obligations, unless the guarantee card provides otherwise, if the Polish law applies
The above time limits are effective only within the European Union. In the case of online shopping from a trader registered outside the EU, consumer rights may be different.
- Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights
- Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees
The Directives are reflected in the domestic legislation:
- Act of 23 April 1964 – Civil Code
- Act of 30 May 2014 on Consumer Rights