Entrepreneur – consumer? Commentary on important changes in the consumer protection law

With all that is going on with successive stages of freeing the economy from the constraints imposed due to the coronavirus pandemic, the upcoming small revolution on consumer law may happen unnoticed. It is worth recalling that under the Act of 31 July 2019 amending certain acts in order to reduce the regulatory constraints [Dz. U. [Journal of Laws] of 2019, item 1495, of 2020, item 568. 875], starting from 1 June 2020, new regulations were to come into force, granting some entrepreneurs some of the rights that were previously available only to consumers. Although due to recent events, the date of entry into force has been postponed to 1 January 2021, it is worth looking at them carefully and preparing for them today.

From next year, nearly 3 million entrepreneurs operating one-person businesses will receive consumer protection in relations with other entrepreneurs – including in particular in three basic areas:

1. Application of the provisions on prohibited clauses in model contracts;
2. Liability under the warranty for defects in the sold item;
3. The right to withdraw from an agreement entered into remotely or off-premises within 14 days.

It should be noted that this amendment does not, however, directly impose the application of the rules governing certain consumer rights to sole traders. Such a solution met with strong opposition from the circles dealing with consumer protection, including the Office of Competition and Consumer Protection, which pointed to possible problems with interpretation and abuses in the application of the new regulations. Ultimately, the legislator decided on a separate category of entities – one could say: a kind of consumer-entrepreneur hybrid, which will be granted certain privileges and additional legal protection.

Thus, the legislative solution applied in the amendment comes down to a general appeal that [certain provisions] apply to a natural person entering into a contract directly related to his or her business activity, when it results from the content of that contract that it does not have a professional character for that person, resulting in particular from the object of his or her business activity, made available on the basis of the provisions on Central Register and Information on Business.

Thus, at first glance, a fundamental difference emerges from the current definition of a consumer, regulated in Article 22¹ of the Civil Code, according to which a consumer is a natural person who performs a legal action with an entrepreneur which is not directly related to his or her business or professional activity. According to this definition, a natural person, even if he or she is an entrepreneur, acquires the status of a consumer, as long as the contract (legal action) entered into is not directly related to his or her business or profession.

For the new group of entities, an important criterion excluding the possibility to take advantage of consumer protection will therefore only be the professional nature of the activity undertaken, i.e. the degree of its connection with the professional profile of our business. However, the legislator has not decided to define the specific premises based on which the nature of a given activity should be qualified as professional. In this respect, it was only decided to refer to the business profile information made available in CEIDG. However, as we know, the classification codes are most often described in a very general way, and therefore it is difficult to believe that the adopted solution will significantly protect us from interpretation problems or possibilities of abusing the law. Ultimately, the burden, as it often happens, will be shifted on to law enforcement bodies, and above all – the courts.

The upcoming changes can certainly be considered revolutionary. On the one hand, the burden of responsibility associated with the status of a professional member of the business community is removed from small entrepreneurs. It was rightly recognised that the unification of requirements imposed on economic operators, which has been applied so far, was, from an axiological point of view, a somewhat excessive and often inadequate solution, and in specific cases even detrimental to the smallest entrepreneurs. Only the criterion of the division of entrepreneurs, depending only on the form of business activity, may raise objections, as it will not always be reliable (it would be much more reliable here to adopt a criterion relating to economic indicators, e.g. by covering a whole group of micro-entrepreneurs).

On the other hand, the new situation will surely require appropriate adaptation by other entrepreneurs. For example, the broadly understood e-commerce industry will have to adapt its rules and regulations, and the need to develop appropriate model contract will be particularly important for businesses operating mainly on B2B basis. It is worth taking care to clarify the relevant interpretative issues in the amended regulations at this stage, which will certainly help to avoid subsequent costly litigation in this field.

Mariusz Maksis, attorney-at-law