Case law

  • Case Details
    • National ID: RWR-32/2004
    • Member State: Poland
    • Common Name:Local Consumer Representative vs.Międzynarodowy Fundusz Rozwoju Regionalnego Sp
    • Decision type: Other
    • Decision date: 13/09/2004
    • Court: Prezes Urzędu Ochrony Konkurencji i Konsumentów (Others)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Injunctions Directive, Article 1, 2. Injunctions Directive, Annex I
  • Headnote
    1. The conduct of the Fund which in fact organised an ‘Argentinian’ loan system but advertised its activity in the press and on the Internet as offering ordinary loans, particularly targeting people of limited means (‘the average Kowalski’), was held to constitute a practice infringing collective interests of consumers (in breach of Article 23a of the Act on the Protection of Competition and Consumers of 15 December 2000).
    2. The practice was classified as misleading advertising, which was in breach of Article 16.1 and 16.2 of the Act on Combating Unfair Competition of 16 April 1993 (Dziennik Ustaw (Journal of Laws) No 47, poz. 211, with later amendments). Article 23a para 2 of the Act on the Protection of Competition and Consumers of 15 December 2000 mentions misleading advertising as an example of a practice infringing collective interests of consumers
  • Facts
    The Fund organised a self-financing group of people the members of which were expecting to receive loans (an ‘Argentinian’ loan system). The members were required to pay specified instalments over a period of time and were promised loans, but it was not certain when exactly (if ever) they would be receiving the money. However, when advertising its services, the Fund presented itself as being able to offer ordinary loans: “we finance your dreams – do you need cash? – building a house, buying a flat, changing a car?”, “for a house, a car or payment of existing debts – simple and quick procedures, guaranteed equal instalments”, “we created our offer especially for an ‘average Kowalski’ – a person with an income below the national average”. The Fund targeted people of modest means, those who might have been turned down by ordinary banks.
  • Legal issue
    Following Article 23a of the Act on the Protection of Competition and Consumers the Head of the Office for the Protection of Competition and Consumers held that certain conditions must be met in order for practices to be classified as infringing collective interests of consumers. First of all, the practices must be illegal. The condition was met in this case – according to the Head of the Office for the Protection of Competition and Consumers the Fund breached Article 16.1 and 16.2 of the Act on Combating Unfair Competition by misleading consumers in advertising its activity. Until the time when the contract was to be signed, the consumers were not informed of the fact that the Fund organised a self-financing consortium, or that the money was to be collected from its members. Further, the practice must infringe collective interests of consumers. Article 23a para 2 mentions that using misleading advertising may constitute practice infringing collective interests of consumers. The Head of the Office for the Protection of Competition and Consumers held that in this situation such collective interests were indeed infringed. The advertisements were placed in the local press and on the Internet – available for every potential consumer. This implies that the advertisements were directed at an unspecified group of consumers whose interests were thus infringed (in interpreting the ‘collective interests’ in this manner, the Head of the Office for the Protection of Competition and Consumers referred to the judgement of the Court for the Protection of Competition and Consumers of 23 June 2004 (analysed).
    Comment – the decision did mention the fact that provisions prohibiting the establishment of such self-financing groups were in force in Poland (they were not quoted or referred to in any other way). Still, the Head of the Office for the Protection of Competition and Consumers stressed the importance of this decision for the prevention of any future involvement of consumers with the Fund. The Fund was obliged to place advertisements correctly describing its activity in the local press. The decision was to be executed immediately (the Head of the Office for the Protection of Competition and Consumers has the power to make such decisions if an important interest of consumers is at stake – Article 100e of the Act on the Protection of Competition and Consumers).
  • Decision

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