n January 2023, the UOKiK (the Polish Office of Competition and Consumer Protection) inspected 40 entrepreneurs from the e-commerce industry to check whether they had complied with the new regulations on communicating price reductions resulting from the Omnibus Directive . The UOKiK identified numerous irregularities such as failing to display the lowest price of a good/service 30 days before the price reduction, and displaying prices in a misleading way.
On 8 May, the UOKiK published information about the price reduction – explanations of the President of UOKiK (“UOKiK’s Explanations“) on how to interpret and apply new provisions on price reductions in both online and offline sales and in advertisements.
Surprisingly, the UOKiK’s Explanations differ not only from the European Commission Notice Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products (“EC guidelines”), but also from the justification to the Polish implementing act[1] (“Justification”) itself.
The UOKiK’s Explanations on notifying price reductions (only in Polish) are available for download here.
Below, we point out a few examples in which the UOKiK takes a particularly rigorous approach; we then compare these with the earlier guidelines presented in the Justification and EC guidelines.
Responsibility of intermediaries (marketplaces)
- UOKiK’s Explanations: If the marketplace offers sellers the ability to announce discounts, it is the responsibility of the marketplace to “ensure” that sellers adequately display the lowest price 30 days before the price reduction.
- Earlier guidelines: The Justification explicitly states that the obligation to inform consumers about the lowest price in the last 30 days before the price reduction does not apply to intermediaries. The same results from point 1.2 of the EC guidelines.
Loyalty programme discounts subject to new obligations
- UOKiK’s Explanations: New rules on price reduction announcements apply to discounts within loyalty programmes announced individually to programme participants (e.g. by e-mail), if such discounts apply to specific products.
- Earlier guidelines: The Justification indicates that this obligation does not apply to loyalty programmes, including specific individual discounts under a loyalty programme. It also follows from point 2.3 of the EC guidelines that the obligation to inform consumers about the lowest price in the case of an offer for members of a loyalty programme applies only to a situation where the offer is communicated externally (or where the majority of customers are members of the programme).
Bundle promotions not fully exempted from the new obligations
- UOKiK’s Explanations: The new rules on price reduction announcements also apply to bundle promotions if the seller provides information about a reduction in the price of a specific product.
- Earlier guidelines: The Justification indicates that bundle promotions (tied and conditional offers) are exempt from this obligation, as they are subject to the provisions of the Polish Act on Counteracting Unfair Market Practices[2]. Also, the EC guidelines indicate that bundle promotions do not fall within the scope of Art. 6a of the Price Indication Directive[3].
Number of prices displayed next to the product
- Explanations: The number of prices displayed in a marketing communication should not exceed three prices for a given product. The UOKiK indicates that, where more than three prices are presented in a marketing communication, there is a risk of consumers being misled.
- Earlier guidelines: There is no information at all on this subject in the Polish regulations, the Justification or the EC guidelines.
The Explanations are yet another manifestation of the UOKiK’s rigorous approach towards implementing the Omnibus Directive. Isn’t that approach too strict, especially in light of the guidelines already published by the EC? The UOKiK de facto imposes additional obligations on sellers that cannot be found in either the Justification to the Polish implementing act and its relevant provisions or the provisions of the amended Price Indication Directive and the EC guidelines.
Light in the tunnel?
It is worth noting one pleasant surprise in the UOKiK’s Explanations. In situations where, for technical reasons, the place where information about the price reduction is displayed cannot contain the full wording required by UOKiK (i.e., “lowest price from 30 days before the discount”), it is conditionally acceptable to use the shortened wording “lowest price”. Nevertheless, the entrepreneur is still obliged to provide the consumer with easy access to the full required wording (e.g. in the toolbox).
What should business expect next?
The UOKiK has already announced further checks in the second half of this year on whether traders are presenting price reductions in accordance with the UOKiK’s explanations, and clarified that this time inspections will take the form of formal proceedings, which may result in the imposition of fines.
For further information, please contact:
Monika Hughes, Bird & Bird
monika.hughes@twobirds.com
[1] Act of 1 December 2022 amending the Consumer Rights Act and Certain Other Acts (Journal of Laws 2022 item 2581) which introduced changes in the Act of 9 May 2014 on the Indication of Prices of Goods and Services (Journal of Laws 2014 item 915)
[2] Act of 23 August 2007. on Counteracting Unfair Market Practices (Journal of Laws 2017. item 2070.)
[3] Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (OJ L 80, 18.3.1998, p. 27–31)
