POLAND Law and Practice Contributed by: Szymon Gogulski, Marek Oleksyn and Damian Ludwiniak, Sołtysiński Kawecki & Szlęzak
Some of the civil claims (remedies) under the UMPL can also be brought by the Ombudsman, the Finan - cial Ombudsman, the county (municipal) consumer ombudsman or a national or regional organisation whose statutory objective is to protect the interests of consumers. The President of the Office of Competition and Consumer Protection The President of the Office of Competition and Con - sumer Protection (OCCP) is competent to examine those advertising practices that may be qualified as infringing the collective interests of consumers in the meaning of the Law of 16 February 2007 on Compe - tition and Consumer Protection. If a breach is con - firmed during the proceedings, the President of the OCCP may impose: • a penalty on a business of up to 10% of the turno - ver generated in the financial year preceding the year of imposing the penalty; or • a fine of up to PLN2 million on a managerial person if, in the exercise of their function at the time of the established infringement, that person intentionally allowed the business to infringe the prohibition of practices infringing the collective interests of con - sumers, through their action or omission. 1.3 Liability for Deceptive Advertising Meaning of Deceptive Advertising Deceptive advertising is prohibited under the general, cross-sectoral laws governing advertising (the UCL and the UMPL) and under those governing specific market sectors. While the UCL does not provide a separate defini - tion of deceptive/misleading advertising, its appli - cation by the courts complies with the definition set out in Directive 2006/114/EC of 12 December 2006 concerning misleading and comparative advertising. Under this Directive, “misleading advertising” means any advertising that in any way deceives or is likely to deceive the persons to whom it is addressed or to whom it reaches, including through its presenta - tion, and which, by reason of its deceptive nature, is likely to affect their economic behaviour, or which, for those reasons, injures or is likely to injure a competi - tor. Similarly, under the UMPL (transposing Directive
2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market), a mar - ket practice is considered misleading if it in any way causes or is likely to cause the average consumer to take a contractual decision that they would not have taken otherwise. If advertising is held to be deceptive (misleading) by the court, the court can apply various remedies requested by claimants, including: • cessation of the unfair advertising practice; • removal of its effects; • making a statement in the press; • monetary remedies (redress of damage and/or recovery of unduly obtained benefits); or • the destruction of advertising materials. Importantly, not only are advertisers subject to these remedies under the UCL, but they also apply to adver - tising agencies or other businesses that created an advertisement. In turn, if deceptive advertising can be qualified as a practice infringing the collective interests of consum - ers in the meaning of the Law of 16 February 2007 on Competition and Consumer Protection, the President of the OCCP may impose: • a penalty on a business of up to 10% of the turno - ver generated in the financial year preceding the year of imposing the penalty; or • a fine of up to PLN2 million on a managerial person if, in the exercise of their function at the time of the established infringement, that person intentionally allowed the business to infringe the prohibition of practices infringing the collective interests of con - sumers, through their action or omission. 1.4 What Is Advertising? Market Sector Laws Different definitions of “advertising” apply based on the market sector and its applicable laws. For exam - ple, under the Broadcasting Law of 29 December 1992, an “advertisement” is a commercial message originating from a public or private entity in connec - tion with its business or professional activity, intended to promote the sale or paid use of goods or servic -
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