Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (g)

It may constitute an unfair commercial practice to limit the liability of a trader in case services are not provided as promised, when such limitations are set out in the terms and conditions of the trader contrary to provisions of applicable law?

The defendant is a major provider of long-distance train services on the territory of Poland.

The object of the proceedings was the limitation of the defendant's liability to compensate customers in an event of a reduction in train services included in the general terms and conditions applicable to services provided by the defendant. The limitation in question concerned various types of multiple fare tickets, holders of which were deprived of an opportunity to seek compensation in case of reduction in train services (meaning cancellation of certain rides or routes in the period of validity of such a multiple fare ticket).

Additionally, the defendant failed to sufficiently inform its customers about their right to complain upon receipt of a call for payment, which was also contrary to Art. 6 section 1 of the regulation of the Minister of Transport and Construction dated 24 February 2006 concerning the condition of parcels and complaints proceedings (Journal of Laws, no. 38, item 266). The referenced provision states that complaints proceedings should be conducted without delay and within 30 days from the receipt of the complaint by the operator. The general terms and conditions used by the defendant provided for a 30 day period for resolving complaints, but allowed for the proceedings to be extended to 3 months.

 

The President of the Office for Competition and Consumer Protection held that a 'reduction in train service', although not defined in the general terms and conditions, in practice meant a cancellation of a regular train service. A limitation of liability in such an event was contrary to Art. 62 section 2 of the Carriage Law dated 15 November 1984 (uniform text, Journal of Laws No. 50, item 601 as amended subsequently). Inserting such a limitation into the general terms and conditions could have an effect of misleading consumers with regards to the exact scope of their entitlements under the statute.

The President of the Office of Competition and Consumer Protection contested that, as the exact scope of liability was not specified in the Carriage Law, ordinary liability for a failure to exercise due care applied, in accordance with Art. 472 of the Polish Civil Code. In the President's opinion, the practice could expose a large number of consumers holding multiple fare tickets to financial losses, as it deprived them of the possibility to receive compensation for losses arising from the limitation of train services.

With regards to the second issue, the President of the Office of Competition and Consumer Protection stated that it was unlawful for the defendant to extend the period for the complaints proceedings, as this was contrary to the regulation of the Minister of Transport and Construction dated 24 February 2006 concerning the condition of parcels and complaints proceedings (Journal of Laws, no. 38, item 266) which provided for a maximum time of 30 days for a complaints proceedings. The President of the Office of Competition and Consumer Protection differentiated between "complaints" proceedings to which the above-mentioned regulation of the Minister of Transport and Construction applies and the "grievance" proceedings which are referred to in the EC Regulation no. 1371/2007 on rail passenger's rights and obligations which actually allows for the "grievance" proceedings to be longer than 30 day. Therefore, compliance with the Minister's regulation was still required under national law.

 

Is it an unfair commercial practice to limit the liability of a trader in case services are not provided as promised, when such limitations are set out in the terms and conditions of the trader contrary to provisions of applicable law?

URL: http://decyzje.uokik.gov.pl/dec_prez.nsf/0/AB13CD8C97F255B6C1257A9A0037C0CB?OpenDocument

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The commercial practice was found to be unfair.

With regards to the former practice, the President ordered the defendant to compensate affected customers within 2 months from the receipt of the decision becoming final.

The President confirmed that the defendant had already stopped using the latter of the contested practices.