Case law

  • Case Details
    • National ID: VI ACa 1323/09
    • Member State: Poland
    • Common Name:Plaintiff A. S.A. v. President of the Office of Competition and Consumer Protection
    • Decision type: Other
    • Decision date: 02/06/2010
    • Court: Sąd Apelacyjny (Appellate court, Warszawie)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Injunctions Directive, Article 2, 1. Injunctions Directive, Article 2, 2.
  • Headnote
    Violating of the collective consumer interests means damage of the interests of consumers - members of the group (defined class of persons), separated from the general public through a common criterion, which is the practice used by the entrepreneur, which includes acting and omitting, and may rely on breach of consumer interests or threat them.
  • Facts
    The plaintiff A. S.A. performed a periodical sale of collection-books titled “Polish Art Collection - Masterpieces of the National Culture". The sale was conducted from December 2004 to April 2007. The collection-books were distributed by press distributors on subscriptions (of 28 or 52 books). The information on subscription was delivered to consumers by TV advertising campaign, and was published on the second page of each collection-books and the plaintiff’s Website.
    The collection was divided to specific thematic sections. Each collection-book contained different pages from different sections. According to plaintiff information the complete collection should contain of 112 books. In the last book of a number 112 the consumer were informed about increasing of the number of collection-books to 132 fascicles. The material delivered in 132 books was still incomplete.
    The President of the Office of Competition and Consumer Protection (further: OCCP) issued a decision declaring acting undertaken by A. S.A. infringing the collective consumer interests, according to Art. 24.2 point 2 and 3 Act of 16 February 2007 on competition and consumer protection (Dz.U. 2007.50.331 with amend; further: CCP) and Art. 9.1 point 2 Act of 2 March 2000 on the protection of certain consumer rights and liability for an unsafe product Dz.U. 2000.22.271 with amend). The President decided that the A S.A. acted with intend to mislead consumer by an improper information by means of distance communication and avoid to deliver to consumer, prior to the conclusion of a contract, information on the essential characteristics of consumer goods. The A. S.A. violated a consumer right to fair, truthful and complete information, and thus fulfills the conditions of illegality referred in Art. 24.2 point 2 CCP.
    A.S.A. requested cancelation of the decision. The Plaintiff indicated that the collection has had an open character and each fascicle was sold separately. Hence, consumers may decide if they want to attach it to the collection or not.
    By judgment of 22 July 2009 Court of First Instance dismissed a request. According to the District Court the plaintiff acted with the intent to mislead consumers, and by varying number of collecting-books tried to induce consumers to purchase additional numbers of collection to complete missing pages.

    The plaintiff lodged an appeal. The Court of Appeal considered appeal reasoning partially justified.
    The Court of Appeal overruled the appeal.
  • Legal issue
    The Court of Appeal did not share reasoning of the appeal. The Court emphasised that the content of advertisements placed on the second page of each magazine and on the website contained explicit information showing that the collection had a close character. Moreover, the sales contract obliged a consumer to buying of the collection, which consisted of 112 collection-books. But the materials released in 112 magazines did not create a complete collection.
    The market mechanism used by the plaintiff has led to a situation where the consumer did not realize how much additional collecting-books are required to complete the whole collection. The plaintiff actions violated art 24.2 point 2 CCP. The District Court properly interpreted the meaning of collective consumer interests by referring to the definition of the Directive 98/27/EC of the European Parliament and the Council of 19 May 1998 on injunctions for the protection of consumer interests.
    The practice infringing collective consumer interests is an acting of an entrepreneur occurring in conditions indicating the repeatability of undertaken acts in relation to individual consumers in the group to which the acts of entrepreneur are addressed and in such a way that the potential victim of such acts can be any consumer who is client or potential client of this entrepreneur.
    The plaintiff violated rights of an unlimited group of consumers – his potential clients. The dimension of the violation was consumer's right to participate in a transparent and undisturbed market conditions and consumer material rights raised from additional costs of collection.
  • Decision

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