DCD and SGD implementation – impact and requirements

DRAFT ACT AMENDING THE ACT ON CONSUMER RIGHTS AND CERTAIN OTHER ACTS (DRAFT OF 29/06/2022)

By implementing the SGD, it is planned to introduce the new chapter 5a of the Act on Consumer Rights – Consumer warranties and guarantees. Importantly, the provisions of this chapter will apply not only to a contract with a consumer, but also to a natural person who enters into a contract directly related to their business activity, if it is clear from the content of such contract that it is not of a professional nature for that person, in particular the professional nature does not arise from the subject matter of their business activity made available on the basis of the provisions of the Central Registration and Information on Business of the Republic of Poland. First of all, the regulation primarily provides for the exclusion of the application of the Civil Code’s warranty provisions on sales to consumers and certain natural persons running sole proprietorship (for whom the contract is not of a professional nature) and introduction of a separate regulatory regime in this matter referring to the concept of non-compliance of goods with the contract. The provisions define the rules of liability of the entrepreneur for non-conformity of goods with the contract. The entrepreneur will be liable for any non-conformity of the goods with the contract at the time of their delivery provided that such non-conformity is ascertained within two years of the delivery. In the case of used goods, the parties may reduce the above-mentioned time period, by no more than one year. It is presumed that the non-conformity of the goods with the contract, discovered before the expiry of the aforementioned two-year period, have existed at the time of their delivery, unless the contrary is proved or this presumption may not be justified due to the specificity of the goods or the concept of non-conformity of the goods with the contract. As regards goods with digital elements, the entrepreneur will be liable for non-conformity of the digital content or digital services supplied on an ongoing basis with the contract if such non-conformity has occurred or has become apparent at the time when, according to the contract, the goods were to be supplied. The above-mentioned time period may not be less than two years after the delivery of the digital goods. The non-conformity with the contract will be presumed to have occurred within the said time period if it was ascertained at that time. The draft provides for the exclusion of the liability of the entrepreneur due to non-conformity to the extent specified in the regulations when the consumer has been explicitly informed about it and expressly and separately accepted the lack of a specific characteristic of the contract at the time of its execution.

While implementing the SGD provisions, the warranty rights of the consumer and obligations of the entrepreneur related thereto were defined. The consumer will first have the right to request that the goods be repaired or replaced free of charge. Only after that, the consumer will be able to make a statement of price reduction or withdrawal from the contract. In exceptional circumstances, e.g. when the non-conformity of the goods with the contract is so significant that it justifies an immediate price reduction or withdrawal from the contract, the consumer will be able to exercise this right immediately. The consumer may not withdraw from the contract if the non-conformity of the goods with the contract is insignificant. The non-conformity of the goods with the contract is presumed to be material.

The legislation also introduces new guarantee arrangements, i.e.:

• the warranty of durability may not provide for terms of repair or replacement less favorable to the consumer than those set forth in the Act on Consumer Rights;
• any deviation from the terms of the warranty stated in the advertisement to the detriment of the consumer will be ineffective, unless the warranty statement made in the advertisement prior to the conclusion of the contract has been corrected, maintaining the conditions and form in which such advertisement was made or similar.

The planned purpose of implementing the DCD is to introduce the new chapter 5b into the Act on Consumer Rights – Contracts for the supply of digital content and digital services. Furthermore, the provisions of this chapter will apply not only to a contract with a consumer, but also to a natural person who enters into a contract directly related to their business activity, if it is clear from the content of such contract that it is not of a professional nature for that person, in particular the professional nature does not arise from the subject matter of their business activity made available on the basis of the provisions of the Central Registration and Information on Business of the Republic of Poland. They regulate the rights and obligations of the parties to contracts for the supply of digital content or digital services by specifying, in particular:

• manner and timing of the obligation of the entrepreneur to provide the digital content or digital services;
• the consumer’s right to withdraw from the contract if the entrepreneur fails to supply the digital content or service immediately or within an additional period of time expressly agreed by the parties;
• rights of the consumer when the digital content or digital services are not in conformity with the contractual provisions;
• additional information obligations of the entrepreneur with respect to updates to the digital content or digital services and the obligation of the consumer to install the updates provided by the entrepreneur under penalty of lack liability of the entrepreneur for non-compliance due to failure of installation of such updates;
• exclusion of the liability of the entrepreneur due to non-conformity to the extent specified in the regulations when the consumer has been explicitly informed about it and expressly and separately accepted the lack of a specific characteristic of the contract at the time of its execution;
• rules on the liability of the entrepreneur when the digital content or digital services do not conform to the contract – in the case of digital content or digital services supplied on a one-off basis or in parts, the entrepreneur is liable for any non-conformity which existed at the time of supply and became apparent within 2 years of such supply. Any non-conformity discovered before one year after the supply will be presumed to have existed at the time of delivery. On the other hand, in the case of the digital content or digital services supplied on a continuing basis, the entrepreneur is liable for any non-conformity which occurs or becomes apparent at the time when, under the contract, the digital content or digital services were to be supplied. The non-conformity will be presumed to have occurred within the said time period if it was ascertained at that time;
• the consumer’s rights to require that digital content or digital services be in conformity with the contract. Subsequently, the consumer will be able to make a statement of price reduction or withdrawal from the contract. In exceptional circumstances, e.g. when the non-conformity of the digital content or digital services with the contract is so significant that it justifies an immediate price reduction or withdrawal from the contract, the consumer will be able to exercise this right immediately. The consumer may not withdraw from the contract if the digital content or digital services are provided in exchange for the payment of a price and the non-conformity with the contract is immaterial. The non-conformity is presumed to be material;
• the principles of introducing changes to the digital content or digital services,
• the limitation period for certain claims of consumers and certain JDGs (for which the contract is not of a professional nature) arising from the warranty provisions – prejudging that the general provisions governing limitation (Article 118 of the Civil Code) apply to these claims.