Case law

  • Case Details
    • National ID: XVII AmA 134/14
    • Member State: Poland
    • Common Name:link
    • Decision type: Other
    • Decision date: 27/10/2014
    • Court: District Court in Warsaw - Court for the Protection of Competition and Consumers
    • Subject:
    • Plaintiff: (…) S.A. in W
    • Defendant: President of the Office of Competition and Consumer Protection
    • Keywords: distance contracting, Distance Selling Directive, product characteristics, right of withdrawal
  • Directive Articles
    Distance Selling Directive, Article 6, 1.
  • Headnote
    (1) The consumer’s statutory right to withdraw from a distance contract within 10 days expires only when services have been actually provided to the consumer.
    (2) A trader cannot refuse to recognize consumer’s right to withdraw from the contract in the situation where the consumer returns the product (device) in a physical condition that is not exactly the same as when received, if changes in the physical condition of the device have been caused by ordinary handling of the device.
  • Facts
    The Plaintiff, a company providing telecommunication services, concluded contracts with new consumers on the following basis: consumers were engaged on Plaintiff’s website and upon their request, contracts and other documentation were delivered to their premises by courier. When a contract was concluded, the Plaintiff claimed that the consumer had a right to withdraw from the agreement within 10 days, unless the consumer agreed to receive Plaintiff’s services before the lapse of the above-mentioned 10 days' period. Furthermore, the Plaintiff tried to limit possibilities for consumers to withdraw from the contract by, for example, informing them that the delivered devices had to be returned in a physical condition that is exactly the same as when received.
    The President of the Office of Competition and Consumer Protection declared above-mentioned practices and certain other unlawful and, consequently, as infringing collective interests of consumers.
  • Legal issue
    (1) The court stated that consumer’s right to withdraw from the contract in question within 10 days expires only when services have been actually provided to a consumer. Therefore, a mere statement of the consumer by which he agrees for the services to be provided before the lapse of that period does not preclude exercise of the right to withdraw until the services have been actually provided. The court also stated that informing consumers that their right to withdraw will expire as a result of such statement misleads the customer and thus constitutes an unfair commercial practice.
    (2) The court agreed with the opinion of the President of the Office of Competition and Consumer Protection that changes to the physical condition of a device such as, the removal of protection foil from the telephone or untangling charger’s cable are actions that are taken within ordinary handling of the device and therefore cannot preclude exercise of the customer’s right to withdraw from the contract. The court also stated that informing consumers that their right to withdraw will expire following each change in the physical condition of the device misleads the customer and thus constitutes an unfair commercial practice.
  • Decision

    (1) Does the consumer’s statutory right to withdraw from a distance contract within 10 days expire following consumer’s consent to receive services before the lapse of this period?
    (2) Can a trader refuse to recognize consumer’s right to withdraw from the contract in the situation where the consumer returns the product in a physical condition being not exactly the same as when the product was received?

    URL: http://orzeczenia.ms.gov.pl/details/$N/154505000005127_XVII_AmA_000134_2014_Uz_2014-10-27_002

    Full text: Full text

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  • Result
    The District Court in Warsaw - Court for the Protection of Competition and Consumers upheld the decision in part.