Consumer Sales Law in Poland: Changing the Law, Changing Attitudes

ABSTRACT. The purpose of this paper is to show what the future implementationof the Consumer Sales Directive by Poland may involve. The analysis focuses onthe substantive legal and other changes necessary to give full effect to the Directive.Polish guarantees law is compared with the Directive in order to identify similaritiesand divergences and highlight areas in need of reform. A brief account of the extra-legal factors affecting the position of consumers in post-Communist countriessupplements the legal analysis in order to show what sort of reforms are necessary.It will be demonstrated that the black letter laws do not need as much change ascertain other issues, such as political, economic, and social factors, and, most of all,the idiosyncrasies of the legal profession. Finally, the role of the European Communitiesin the process of harmonisation of post-Socialist laws with the European Union stan-dards is briefly analysed. Although the analysis of guarantee laws is focused on Poland,the reader is encouraged to see the wider picture of post-Communist countries ofCentral and Eastern Europe, and the specificity of the position of consumers there.

The Consumer Sales Directive1 was adopted in 1999 in order toapproximate the national laws of the Member States of the EuropeanUnion on certain aspects of consumer sales and guarantees.2 It aimsto provide a “uniform minimum set of

fair rules governing the saleof consumer goods.”3 The Directive was adopted following a com-parative analysis of national laws of the Member States,4 whichconcluded that these laws were “somewhat disparate.”5 The post-Communist states,6 including Poland, need to implement the Directiveby virtue of the Association Agreements7 signed with the EuropeanUnion. Adoption of the acquis communautaire is the pre-condition forthese countries to be entitled to accede to the Union. Article 68 ofthe Association Agreement between the Republic of Poland and theEuropean Union requires that Polish law be approximated to Europeanstandards, while Article 69 lists the areas of special emphasis, whichinclude consumer protection. The laws on consumer guarantees areconsidered, from the point of view both of the European Union andPolish lawmakers and courts, to be of great importance in protectingconsumer interests.8

Journal of Consumer Policy

25: 403–437, 2002. 2002 Kluwer Academic Publishers. Printed in the Netherlands.

Magdalena Sengayen

Consumer Sales Law in Poland: Changing the Law, Changing Attitudes

LEGAL GUARANTEES AND COMMERCIAL GUARANTEES IN POLAND

AND THE NEED FOR IMPLEMENTATION OF THE CONSUMER SALES

DIRECTIVE

Polish Legislation on Guarantees

The Polish rules on legal and commercial guarantees (referred to,respectively, as “conformity with the contract” and “guarantees” in theDirective) are enshrined in Divisions 2 and 3, Title 11 Book 3(Obligations) of the Civil Code of 1964,9 although amendments tothe Code have changed their scope subsequently. A very significantamendment took place in 1990,10 when the civil law provisionsinspired by the Socialist doctrine were repealed (such as certain restric-tions on freedom of contract, or the exclusion of commercial contractsbetween state owned companies from the regulation of the Civil Codeand the jurisdiction of civil courts). Another crucial amendment tookplace in 1996,11 when legal and commercial guarantees themselves,as well as their inter-relationship, were reformed. The provisions ofthe Civil Code are supplemented by other measures, the most impor-tant being the Regulation of the Polish Council of Ministers of 1995on the conditions of making and performing contracts of sale ofmovable goods with consumers.12

A legal guarantee derives from legal provisions. A commercialguarantee, although contractual, remains under some statutory control.However, the legal status of the Polish guarantee laws was verypeculiar during the period of Communist domination and even forsome time afterwards. A commercial guarantee, normally a typicalfeature of mass markets used by businesses in order to attract morecustomers for their products, used to be perceived in a centrallyplanned economy as the main tool of consumer protection (Letowska,1999, p. 297). The law in Poland even went so far as introducing“obligatory” commercial guarantees. These were supreme over thelegal guarantee, with the effect that only after the commercial guar-antee had expired could the consumer use the legal guarantee.13

However, after the demise of Communism the Civil Code wasamended on 28 July 1990,14 and the provisions on obligatory com-mercial guarantees were repealed. There is now no obligation to offera commercial guarantee, and the guarantors are now free to deter-mine the conditions of guarantees offered to the buyers of theirproducts. At present, the Civil Code provisions on commercial guar-

404 Magdalena Sengayen

antees are merely interpretative tools, which may be used by the courtsin case the contents of the guarantee are not precise or clear on acertain issue.15 However, until the amendment of the Civil Code on23 August 1996 the buyer was not able to choose freely whether toclaim under the legal or the commercial guarantee. He was simplybound by the commercial guarantee, if there was one. After the amend-ment, Article 579 of the Code gives the buyer the right to choosebetween the commercial and legal guarantee, based on which is mostsuitable to his needs.

Both the legal and the commercial guarantee in Poland are typi-cally based on the concept of strict, “absolute” liability in contract(Letowska, 1999, p. 296), independent of any action or omission ofthe responsible party (the seller in the case of legal guarantees, orthe person who issued a commercial guarantee).16 What are the featuresof such liability? The liability is dependent upon the existence of a“defect”17 in the product. Although the Civil Code in Articles 556and 577 uses the same notion of “physical defect” as a source ofliability for both types of guarantees,18 legal opinion is divided intothose who still accept a uniform interpretation of the concept, andthose who do not. According to Manowska (1997, p. 33), “defect”ought to be interpreted in the same manner in both types of guaran-tees. Her opinion follows the view expressed in the Guidelines ofthe Polish Supreme Court of 1988 on the interpretation of law andjudicial practice concerning legal and commercial guarantee.Letowska (1999, p. 296), on the other hand, supporting the opinionsof Zulawska (1997, p. 79) and Brzozowski (1998, p. 80), claims thatthe Guidelines are outdated in this respect. With the historical andeconomic changes, which took place in Poland after the demise ofCommunism, and the changing role of commercial guarantees backinto the instruments of capitalist markets, “defect” should not betreated as a uniform concept in the case of both types of guarantees.

Letowska’s view reflects the fact that at present businesses inPoland are not under an obligation to provide any particular qualitystandard in the commercial guarantees offered by them. However, itseems that she goes too far in distinguishing the two concepts of a“defect.” She argues that while Article 556 para. 1 of the Civil Codeexplains “defective products” in the legal guarantee regime as notsuitable either for a normal purpose, or for a particular purpose (eitherexpress or implied), and even as products the commercial value ofwhich is lower than expected;19 commercial guarantee ought to provide

Consumer Sales Law in Poland 405

only that the product be suitable for a normal use (1999, p. 296).Although Letowska’s understanding of “defects” in case of legal andcommercial guarantees may be more adequate in the contemporaryPolish reality than the approach of the Guidelines, the guarantor mayalso provide for different terms in his guarantee, either more or lessadvantageous for the buyers. Her view of the quality standard ofcommercial guarantees ought to be treated as describing a typical com-mercial guarantee rather than every commercial guarantee.

A very distinctive feature of the Polish guarantee regime during theCommunist period was that the most common form of commercialtrade (that is trade between two state-owned commercial parties) wasnot subjected to the regulation of the Civil Code and the jurisdictionof civil courts, but to a form of arbitration (arbitrazh). There wereseparate rules on guarantees in these transactions, and the Civil Codehad no direct influence upon them. Hence, although guarantees are notspecific to consumer transactions, those transactions were merely theonly ones dealt with by the courts.20 Consumer needs dominated thecase law in the field. However, after the demise of Communism theCivil Code was amended on 28 July 1990,21 and all sales are nowregulated by Book 3 Title 11 (“Sale”) of the Civil Code. At themoment, therefore, Polish sales law is based upon common regula-tion of consumer and commercial sales (albeit with certain provisionsproviding special protection standard for consumers). The futureimplementation of the Consumer Sales Directive by Poland is likelyto cause more divergences between the regulation of consumer andcommercial sales in the Civil Code.

The Addressees of the Guarantee Rules: The Concept of“Consumers” Established by the Directive and in Poland

The notion “consumers” was introduced into the Polish Civil Code(CC) in 1990. Although there was still no definition provided, the non-professional character of the consumers’ activities has been consideredby the courts as the criterion distinguishing them from other actorsoperating in the market.22

Although, in common with the European Union and its MemberStates, there remains the lack of a universally accepted definition ofconsumers in Poland, specific legislation defined this as required.Under Article 384 para. 3 of the Civil Code, as amended by the Actof 2 March 2000 on the protection of certain rights of consumers


and liability for damage caused by dangerous products,23 and theAct on the protection of competition and consumers of 15 December2000,24 consumers are all those who “make a contract with a profes-sional (business person) for a purpose not directly related to businessactivity” (translated by the author). The Regulation of the PolishCouncil of Ministers on the conditions of making and performingcontracts of sale of movable goods with consumers of 30 May 1995describes consumers as those who acquire a product for the purposesnot related to business activity (para. 3.2).

How is “consumer” defined in the Directive? Does it require anychange in the Polish rules? Article 2 (a) defines a consumer as “anynatural person who, in the contracts covered by this Directive, is actingfor the purposes which are not related to his trade, business or pro-fession.” First of all, one must consider the possible difference between“business activity” and “trade, business or profession.” FollowingLetowska (1999, p. 38), it can be said that the two notions aresynonymous because trade, business or profession performed by aperson are forms of his business activity. It seems unlikely that thePolish law will need to be changed in this respect. However, the firstproposal of the Consumer Sales Directive defined the consumers asthose acting for the purposes not directly related to their trade,business, or profession (Article 2 (a)).25 In the final version of theDirective the “direct relationship” has been replaced by a mere “rela-tionship.” There seems to be a crucial difference between dealingfor purposes “not related” and purposes “not directly related” tobusiness. A company director buying a computer could for examplebe treated differently on the basis of these two definitions. It seemsthat the omission of the word “directly” means that even a remote con-nection with business would be able to prevent such a companydirector from being treated as a consumer (Twigg-Flesner & Bradgate,2000, p. 6).

The Polish Civil Code is the primary source of law on guaran-tees, and the Regulation of the Council of Ministers has not beendesigned to replace, but to supplement and further develop theprovisions of the Civil Code. Hence, the definition provided by theCivil Code prevails.26 It seems that, although the provision of theCivil Code gives the consumer-standard protection to a potentiallywider category of persons, the minimum nature of the Directive allowsa more beneficial regulation in the interest of consumers (Article8 (2)).27


Because of the different nature of legal and commercial guarantees,the following analysis will be divided into two parts. First legalguarantees in Poland and the rules introduced by the Directive areexamined; and the analysis of Polish and European commercialguarantee rules follows.

LEGAL GUARANTEES

Persons Liable in Legal Guarantees

The person liable to the consumer in legal guarantees is the sellerof the product. The Polish Civil Code and the Consumer SalesDirective are identical in this respect (Article 556 of the Civil Code,Article 3 of the Directive). Polish law, similarly to German law, doesnot impose direct liability on the manufacturer.28 However, Recital23 to the Directive envisages the possibility of further harmonisa-tion of consumer sales laws through the introduction of the directliability of the manufacturer for defects for which he is responsible.It may therefore be necessary for Poland to introduce a provision tothis effect into the Civil Code in the future. It may be a good ideato consider doing this as part of the reform of the guarantee ruleswith a view to implementation of the Consumer Sales Directive.

However, the Directive does restrict the seller’s liability in caseswhere the lack of conformity results from a public statement con-cerning the qualities of the product. Although such a statement mayof course be made by the seller himself (in which case he will bebound by it, unless he can show that he has corrected the statementat the time the contract was made, or that the consumer’s decisionto buy was not influenced by it) it may also have come from themanufacturer or his representative (in particular in advertising or onlabelling). The conformity standard owed by the seller will be influ-enced by such statements (Article 2(2d)) if the seller shows that hewas not aware, and “could not reasonably have been aware” of thestatement, or, again, that the consumer’s decision to buy the productwas not influenced by it, or that at the time the contract was madethe statement had been corrected (Article 2(4)). The seller will notbe liable in such circumstances, but the Directive does not addressthe question whether the maker of the statement (i.e., the produceror his representative) will become liable instead, at least in cases where


the statement has not been corrected and the consumer has beeninfluenced. Is such an option beneficial for consumers?

According to Letowska (1999, p. 306) the Directive unnecessarilydelays the procedure of remedying the defect in the contract betweenthe seller and the consumer. It seems that the possibility of the sellerescaping liability in certain cases unnecessarily delays the point intime when the consumer is able to obtain remedy. Therefore, Article2(4) can be less beneficial for consumers than the Polish Civil Code,where the seller cannot escape liability in the way prescribed by theDirective,29 and the Polish Civil Code will be able to remain unchangedas a result of the minimum character of the Directive.

When will a seller be liable for a breach of the legal guarantee?The Directive and the Polish Civil Code establish two concepts whichat first sight seem to differ from one another.

The “Non-Conformity With the Contract” in the Directive and“Defect” in Polish Law – Identical or Different Concepts?

The Directive requires the goods to be “in conformity with the contractof sale” (Article 2). Twigg-Flesner and Bradgate (2000, p. 10) pointout that the 1993 Green Paper defined the obligation of the seller asone to deliver the goods satisfying the “legitimate expectations” of theconsumers. They contend that the latter concept was more “consumerfriendly,” putting emphasis on what the consumers could expect. Whileit must be acknowledged that such a focus on the consumers mightbe beneficial to them, it does not need to be, as it is not the notionitself, but its further description (see the four criteria mentionedbelow), which reflects the true meaning of the concept. Further, Recital8 of the Directive indicates that the list of the four criteria ofconformity is not exhaustive. Twigg-Flesner and Bradgate (2000,p. 11) admit that even if the goods do meet the four specified criteria,they still could be said not to be in “conformity with the contract.”Such an approach, if applied in practice, may give rise to a wide inter-pretation of the notion “non-conformity,” according to the changingreality and new risks and dangers faced by the consumers. It is yetto be seen how the concept of conformity with the contract will beused in practice, and whether it is “consumer unfriendly” or not.

Is the Polish concept of “defect” “consumer friendly”? Does itdiffer much from the concept introduced by the Directive? Does itneed to be changed? Let us now concentrate on comparing the Polish


standards with the standards introduced by the Directive. The latterintroduces a presumption of conformity with the contract if the goods:

(a) comply with the description given by the seller and possess the qualities of thegoods which the seller has held out to the consumer as a sample or model;

(b) are fit for any particular purpose for which the consumer requires them andwhich he made known to the seller at the time of conclusion of the contract andwhich the seller has accepted;

(c) are fit for the purposes for which the goods of the same type are normally used;(d) show the quality and performance which are normal in goods of the same type

and which the consumer can reasonably expect, given the nature of the goodsand taking into account any public statements on the specific characteristics ofthe goods made about them by the seller, the producer or his representative, par-ticularly in advertising or on labelling (Article 2(2)).

Article 556 para. 1 of the Polish Civil Code stipulates:

The seller is liable to the buyer if the sold product has a defect decreasing its valueor utility, taking into account the purpose established in the contract, implied fromthe circumstances, or from the normal use of the product; if the product does not possessqualities of the existence of which the seller assured the buyer, or if the product wassold in an incomplete state (legal guarantee) (translated by the author).

It is clear that the Polish legal guarantee puts emphasis upon theconcept of “defect,” while the Directive emphasises non-conformitywith the contract. Are the two concepts truly different? It was alreadyexplained that the Polish legal guarantee ensures that the productcomplies with the intended purpose (utility) and ensures its commercialvalue (Article 556 para. 1). The Directive introduces the requirementof fitness (for a normal or particular purpose), as well as of qualityand performance of the goods. Although the Directive does notexpressly mention commercial value, one may presume that particularquality and performance levels ensure a certain commercial value. Itis not clear whether the Polish Civil Code ensures a higher or a lowerstandard of quality of goods. The matter may be clearer once it isestablished how the intended use and value, or fitness, quality, andperformance are to be measured. The analysis below focuses on thefour criteria established by the Directive, and compares them withthe requirements of the Polish Civil Code and case law.

Goods complying with the description given by the seller and pos-sessing the qualities of the goods which the seller has held out tothe consumer as a sample or model. The Directive purports to ensurehere that the expectations of the consumers caused by the sellers’description or sample of the product are satisfied. By virtue of Article


556 para. 1 of the Civil Code the goods are defective if they do notpossess the qualities of the existence of which the seller assured thebuyer. The Supreme Court held in 1973 that a written assurance bythe seller that an engine of a motor vehicle is of a certain qualitygave rise to his liability under a legal guarantee if the engine didnot comply with the assurance.30 The Court held in 1990 that theseller’s assurance of a year of production of a car, while in fact thecar was produced earlier, rendered him liable under a legal guarantee.31

It also confirmed that the expectation of quality on the part of theconsumer could have been caused by the seller showing him a sampleof the product.32

Goods fit for any particular purpose for which the consumer requiresthem and which he made known to the seller at the time of conclu-sion of the contract and which the seller has accepted. The purposeof this provision is to ensure fitness of the product for a particularpurpose known and accepted by the seller. Article 556 para. 1 of theCivil Code ensures that the utility and value of the goods complywith the purpose set by the contract. The Court of Appeal of Krakowin the judgement of 24 July 199233 confirmed that if, while makinga contract, the seller knows about the purpose for which the goodsare bought, and he can reasonably be deemed aware of the buyer’sreliance on his knowledge and expertise, the assurance and advicegiven to the buyer at the time of making the contract would be inter-preted as an implied assurance of the quality of the goods, and renderthe seller liable under a legal guarantee if the product is not of thequality assured by him.

Goods fit for the purposes for which the goods of the same type arenormally used. This provision of the Directive ensures that any impliedand obvious expectations of the consumers regarding the goods areprotected. Under the Polish Civil Code, apart from the terms ofcontract and the assurances of the seller, the intended value andutility of the goods may also be implied from the circumstances inwhich the contract was made, as well as the general purpose for whichthe goods of this type can be used (Article 556 para. 1 of the CivilCode). The Polish Supreme Court held that a false registration booksupplied with a car causes the impossibility of using the car accordingto its normal purpose, as it is not possible to register such a vehicle.34

The Court of Appeal of Lodz held that a car with a false serial number


is defective, for the car cannot be put to its normal purpose, whichis driving it, and in the future also reselling it, without any restric-tions.35 Even if the product in question can be properly used for thedesired purpose, but does not meet what could be called an “aesthetic”standard (Letowska, 1999, p. 308), it will be treated as defective forthe purposes of legal guarantee (for example a piece of garmentbearing a stain).

Goods showing the quality and performance which are normal ingoods of the same type and which the consumer can reasonably expect,given the nature of the goods and taking into account any public state-ments on the specific characteristics of the goods made about themby the seller, the producer or his representative, particularly in adver-tising or on labelling. There does not seem to be a provision in theCivil Code which would match the first part of this requirement estab-lished by the Directive. More focus on the “reasonable expectations”of the consumers by the Civil Code is necessary to give full effectto the standards envisaged by the Directive. It is, however, gener-ally accepted that “defect” can originate in the goods not complyingwith the information about them, which the seller or the manufac-turer placed on the packaging, or in an advertising folder or a leaflet(Letowska, 1999).

By virtue of the Polish Civil Code, the product can be treated asdefective if it does not contain all the required parts, or is not equippedwith the relevant information or instructions (Article 556 para. 1).Skapski (1976, p. 123) also argues that a defective or missing pack-aging is sufficient to establish a “defect,” as long as it was supposedto protect the product from being damaged.

Although Polish law uses the notion of “defect” and the Directive“non-conformity,” in practice the Polish guarantee is not much morenarrow in scope than the guarantee established by the Directive.According to Letowska, “defect” in the case law of Polish courtshas become more and more related to the parties’ contractual inten-tions, and on the other hand the broad concept of “conformity” is mademore precise by the four criteria introduced by the Directive. Apartfrom a few issues in need of an express amendment, Letowska (1999,p. 304) suggests that it should be sufficient for the Polish courts toexercise their interpreting powers more widely in the direction set


by the Directive, for Polish law to comply with this act in terms of“conformity” of the goods with the contract of sale (1999, p. 304).36

The Time of Defect/Non-Conformity

By virtue of Article 559 of the Polish Civil Code the seller is not liableunder a legal guarantee for defects which arose in the goods afterthe risk passed on to the buyer, unless the defect was a result of acause already existing in the goods before this time. According tothe principle res perit domino, the risk usually passes together withthe property in goods. Article 155 of the Civil Code regulates thepassing of property. Unless the parties’ intention or a legal provi-sion introduces a different effect, in the case of sale of specific goodsproperty passes when the contract is made, while in case of genericor future goods property passes together with possession.

The Directive, on the other hand, does not expressly stipulate atwhat time the conformity with the contract should be assessed. Twigg-Flesner and Bradgate (2000, p. 12) have suggested that, becauseArticle 2 of the Directive imposes on the seller the obligation to deliverthe goods being in conformity with the contract, it may be presumedthat if the goods are in conformity with the contract at the time ofdelivery, the seller will not be liable.

Are the two regulations different? Delivery is not defined in theDirective and may mean delivering the goods to the consumers them-selves, or passing the goods to a carrier. Article 155 of the CivilCode is clear that, usually, only when the buyer obtains possessionof the generic goods can the risk pass on to him, but on the otherhand it seems the buyer does not need to be in possession of thespecific goods for this to happen. If one follows the view of Twigg-Flesner and Bradgate that according to the Directive the crucial timefor establishing “conformity” is the time of delivery, Polish regulationconcerning generic goods satisfies it, and goes even further by ensuringthat the delivery reaches the consumer himself. In terms of specificgoods, the delivery time is not essential in Polish law. Although itseems that an amendment of the Civil Code is necessary to give fulleffect to the Directive in this respect, the practical importance ofsuch a differential regulation in Poland may be very insignificant fromthe point of view of the consumers, as most consumer durables areconsidered to be generic goods. The most common transactions of


consumer sales are those regarding goods such as cars, refrigerators,other electrical goods, computer hardware, etc. How does one classifythose? In English law, for example, such goods would be classed asspecific goods (Twigg-Flesner & Bradgate, 2000, p. 12), but thesituation in Poland is different. First of all, the Polish Supreme Courtheld that whether the goods are generic or specific, depends on thewill of the parties.37 Further, Letowska (1999, p. 313) points out thatfor the purposes of guarantees the notion “specific goods” ought tobe interpreted with special emphasis on the lack of possibilities ofreplacing these goods. Hence, in Poland, Twigg-Flesner and Bradgate’sexample of a CD bought in a music store would not be treated as asale of a specific product. It would be accepted that, because the CDcan be exchanged for another, similar one, it is a generic product.Goods such as refrigerators or cars, although equipped with serialnumbers, are for the purposes of Polish guarantee laws generic goods.38

The Polish Civil Code has not solved the problem of the distrib-ution of burden of proof as to the time of the “defect,” as well as tothe source of the defect. Should it be the consumer who proves theexistence of “defect” or “non-conformity” at the time established bylaw? It was suggested in Poland by Buczkowski (1972, p. 1291) thatthe burden of proof of the non-existence of defect at the time ofdelivery should rather rest on the seller, and that the general pre-sumption of the defect existing at the time of the buyer takingpossession of the product ought to be introduced. Jagielska and Wagner(1997, p. 75) contend that any such general presumption would notserve its purpose well. Each case, in their opinion, needs to be con-sidered on its merits, and the presumption, if there would be any,should be based on the facts of the case. The Directive introduces apresumption of lack of conformity existing at the time of delivery ifthe lack of conformity becomes apparent “within six months ofdelivery” unless “this presumption is incompatible with the natureof the goods or the nature of the lack of conformity” (Article 5(3)).Such a presumption is a great advantage for consumers, and thefact that the Polish Civil Code does not contain any regulation tosuch effect renders it incompatible with the Directive and in need ofreform.


The Buyer’s Awareness of the “Defect” or “Non-Conformity”

The concept of guarantees rests on the premise of the buyers’ trustin obtaining good value for the price paid. In other words, the oblig-ations of the parties need to be of equal value (Letowska, 1999,p. 310). Hence, if the buyer is aware of the existence of a “defect”in the product, it is presumed that, having paid the price, he must haveconsidered it to be a fair one. The Polish Civil Code in Article 557para. 1 stipulates that the seller shall not be liable according to therules on legal guarantee if the buyer knew of the defect. Which momentis decisive in assessing the buyer’s awareness? It depends upon thetype of goods that are the subject of the contract. The division of goodsinto generic and specific plays an important role here. In the case ofsale of specific goods the time of determining the buyer’s awarenessis the time of making the contract, and in the case of sale of genericgoods, it is the time when the seller parts with the goods. By virtueof Article 2(3) of the Directive “(t)here shall be deemed not to be alack of conformity (. . .) if, at the time the contract was concluded,the consumer was aware, or could not reasonably be unaware of, thelack of conformity.” Is the regulation of the Directive less advanta-geous for the consumers than the Polish Civil Code, as it may seemat first sight? Although the Directive impliedly requires consumersto be cautious when buying products, according to Letowska alsothe Polish legal guarantee will not apply if the buyer “should haveknown, or noticed” the defect easily (Letowska, 1999, p. 310).39 Itseems that the Civil Code will not need change in order to complywith the Directive, but on the question of how cautious the consumerought to be, both acts need to be clearer.

The Remedies of the Consumer and Obligations of the Seller inLegal Guarantees: The Polish Civil Code and the Directive

Article 3 of the Directive describes the remedies available to theconsumer in case the bought product is not “in conformity with thecontract.” It must be noted that, from the point of view of the con-sumers, as far as remedies are concerned the final version of theDirective is much less beneficial than the original draft Directive(cf., Twigg Flesner & Bradgate, 2000, p. 18).40 There are four possibleremedies: repair of the goods, their replacement, price reduction, andrescission of the contract (Article 3(2)). The draft provided consumers


with a choice of a remedy most suitable for them; however, the finalDirective does not give them that option.

The Polish Civil Code (Article 560) gives similar remedies to thebuyer as the Directive. Those remedies have been developed andexplained in further detail in the Regulation of the Council of Ministerson the conditions of making and performing the contracts for saleof movable goods with consumers of 30.05.1995.

Neither the Directive, nor the Civil Code gives the consumers anentirely free choice of a suitable remedy. Let us now consider whenthose remedies are available.

Repair and Replacement of Goods

The availability of repair and replacement is regulated by Article3(3) of the Directive. Unless those remedies are impossible or dis-proportionate, provided the seller completed them in a reasonable timeand without significant inconvenience to the consumer, the lattercannot use other remedies. According to Article 560 of the Polish CivilCode, if the seller replaces or repairs the product without delay, theremedy of rescission cannot be used.41 There is no provision in theCivil Code which would be relevant to the requirement of the repairand replacement not involving a significant inconvenience to theconsumer. It seems that an amendment is necessary. A very impor-tant feature of the Polish law on legal guarantees is the rule that, unlessthe contract between the parties stipulates otherwise, specific goodscannot be replaced (Article 561 para 2), and generic goods cannotbe repaired (Article 561 para 1). In the case of a sale of specific goods,and only when the seller is also the producer, the buyer can requestrepair, giving the seller an appropriate period of time, after whichhe can rescind the contract if the repair has not been done.42 However,if the repair would be too costly, the seller can refuse to comply withthe buyer’s request. In the case of a sale of generic goods, the buyermay demand the delivery of replacement goods. However, if thegeneric goods are simply lacking some component part, information,or instruction, the buyer may have to approve remedying the defectby the supply of the missing items (Letowska, 1999, p. 313).


Are the Provisions of Polish Law on Repair and ReplacementDifferent From Those of the Directive?

The notions used to restrict the availability of repair and replace-ment in the Directive are: “impossibility” and “disproportionateness.”The notions used in Poland are “generic goods,” “specific goods,” and“cost to the seller.” The determination of the scope of these termsand how they may affect the consumer rights has a great signifi-cance for both the consumers and the sellers. If they are interpretedtoo strictly, it could put too much of a burden on the sellers to repairor replace products, and if interpreted too widely, although theconsumer could still use the rescission or reduction of price remedies,this may not suit someone who wants to keep the product and use itto its full capacity.

Let us first consider the “impossibility” of repair or replacementin the Directive. Because of lack of a definition, one can only presumewhat this may mean for the purpose of a consumer sales contract.According to Twigg-Flesner and Bradgate (2000, pp. 19–20) there canbe two types of impossibility: practical and legal. They give anexample of a product made to the consumer’s order from materialsprovided by him (practically irreplaceable product – it cannot beexchanged. It can also be practically impossible to repair a productwhen it is not defective, but simply does not comply with the seller’sassurance (for example supplying a red chair instead of a green one– Twigg-Flesner & Bradgate, 2000, p. 20). Legal impossibility is wherethe domestic law can be of importance, specifying for instance thatin the cases of sale of specific goods replacement is impossible, orin the cases of generic goods repair is impossible. It seems that theDirectives leaves the matter for the national law to regulate, apartfrom Recital 16, which states that “the specific nature of second-hand goods makes it generally impossible to replace them; thereforethe consumer’s right of replacement is generally not available for thesegoods.”43

There are those who criticise such restrictions related to specificor generic goods. Twigg-Flesner and Bradgate (2000, p. 20) claim thatif the possibility of replacement does not exist for specific goods, “theavailability of the remedy will be drastically restricted.” Letowska,on the other hand, supports such a restriction (1999, p. 312). Accordingto her, accepting the possibility of repair of a generic product, orreplacement of a specific product, may be detrimental to the inter-


ests of the buyers, and consumers in particular. It can enable theseller effectively to prevent the buyer from rescinding the contract(Article 560 para. 1 analysed above) and looking for a more satis-factory arrangement elsewhere (note that in the case of minor defectsthe seller in Poland can attempt to repair or replace the product evenif he has made other attempts before).

As analysed above, in Poland the way the notions “specific goods”and “generic goods” are understood is different to that in Englishlaw as described by Twigg-Flesner and Bradgate (2000). Goods suchas refrigerators or cars, although equipped with specific serial numbers,are for the purposes of Polish guarantee laws generic goods (Letowska,1999, p. 313). If the English classification of such goods as specific(cf., Twigg-Flesner & Bradgate, 2000) were assumed, the impossibilityof their replacement would indeed be detrimental to consumer inter-ests. If, however, they are treated as generic goods, the impossibilityof replacement does not concern them. In the latter case it appears thatthe impossibility of repair is rather beneficial to consumers, as insteadof waiting for a defective washing machine or a TV set to be repaired,they can simply obtain a replacement product of the same specifica-tions. Unfortunately, in spite of strong academic opinion, and a clearregulation of the Civil Code, the fact that replacement and repair areremedies depending on the kind of goods that are the subject of thecontract is not always understood in Poland. Those making the crucialmistake are not only sellers or buyers, but even judges, especially thosein lower courts. For example the District Court of Katowice in thejudgement of 9.02.199844 overlooked this distinction. It seems thatin terms of impossibility of repair and replacement the Polish blackletter law complies with the requirements of the Directive. Once thelegal profession fully understands the difference in treatment of genericand specific goods by the guarantee rules, the consumers in Polandwill be able to obtain a suitable remedy when the quality of consumerdurables and other generic products they acquired is not satisfactory.

When is repair or replacement “disproportionate” for the purposesof the Directive? Article 3(3) stipulates that a remedy is dispropor-tionate if “it imposes costs on the seller which, in comparison withthe alternative remedy, are unreasonable, taking into account” factorssuch as the value of goods without the lack of conformity, thesignificance of the lack of conformity and “whether an alternativeremedy could be completed without significant inconvenience to theconsumer.” Although there is nothing of this kind prescribed by the


Polish Code, Article 561 para. 2 stipulates that the seller can refusethe repair if it is too costly. The same restriction, however, does notexist in the case of replacement. Considering that such restrictionsrather secure the interests of the sellers than the consumers, it seemsunlikely that an amendment of Polish law is necessary here.

Repair and replacement in the Directive must be completed withina reasonable time and without any significant inconvenience to theconsumer, “taking account of the nature of the goods and the purposefor which the consumer required the goods” (Article 3(3)). In thePolish Civil Code they need to be done “without delay” (Article560). Putting aside the possible differences between the “reasonabletime” and “no delay” requirements, the Directive regulates those issuesin more detail and it is possible that the Polish Civil Code will haveto be amended to give full effect to it.

Rescission of the Contract and Reduction of the Price

According to Article 3(5) of the Directive, these remedies are avail-able to the consumer if he is entitled to neither repair nor replacement,or if the seller has not completed the remedy within a reasonable time,or he has not completed it without significant inconvenience to theconsumer. Rescission is not available if the lack of conformity is minor(Article 3(6)). In the Polish Civil Code the rescission of the contractand the reduction of the price are generally considered as the mainremedies. Polish law in this respect seems to be more advantageousto the consumers wishing to “break free” from the unsatisfying con-tracts. Letowska (1999, p. 305) claims that literal implementation ofthe Directive here would be a “step back,” but she also points outthe possibility of the seller restricting the buyer’s right to rescindthe contract under Polish law if the goods are repaired or replacedwithout delay.45

After introducing amendments in certain areas where the Polishrules on remedies do not comply with the requirements of theConsumer Sales Directive, the Civil Code will not be less advancedin terms of protecting the interests of the consumers than theDirective.


Time Limits

There are serious divergences in the regulation of time limits forlegal guarantee rights of the Directive and the Polish Civil Code, whichneed to be remedied by Poland. First and foremost, by virtue of Article568 para. 1 of the CC those rights expire at the end of one year afterthe buyer took possession of the goods. The Directive requires thata consumer has at least two years from the delivery46 of the goodsto bring an action (Article 5(1)). The Directive also stipulates thatthe Member States may provide that “in order to benefit from hisrights, the consumer must inform the seller of the lack of confor-mity within the period of two months from the date on which hedetected such lack of conformity” (Article 5(2)). Polish law introducesa one-month period for that (Article 563 para. 1 CC), but both theone-month and one-year periods do not bind the consumer if the selleris guilty of fraud (Article 568 para. 2).

COMMERCIAL GUARANTEES IN POLISH LAW AND IN THE DIRECTIVE

Commercial guarantees are contractual and not based on statute. Thereare, however, certain conditions commercial guarantees must meet,once given. Let us now examine whether the Polish requirementscomply with those introduced by the Directive.

Commercial guarantees were strictly regulated during theCommunist period in Poland. Until 1990 a commercial guaranteewas obligatory. Its contents were also provided for by the Civil Code.Upon the amendment of the Code on 28 July 1990 these features ofcommercial guarantees were repealed. At the moment the existenceand contents of a commercial guarantee for a particular product aredependent upon the will of the guarantor (producer, importer, or seller).

The Directive introduces some requirements to be met by com-mercial guarantees; they have to be written in “plain intelligiblelanguage,” the “essential particulars” such as its duration and terri-torial scope as well as the name and address of the guarantor haveto be given, and they must include a statement that the legal rightsunder national law (“the legal guarantee”) are not affected by the guar-antee (Article 6(2)(3)).47 It is understood in Poland that the commercialguarantee ought to contain, written in clear language, the name andaddress of the guarantor, the address of the shop, the description of


the product, and addresses of service points (Karwowski, 1999,p. 8), but there is, as yet, no provision reflecting this in the Civil Code.Generally, the Civil Code does not contain any provisions on thecontent of the guarantee document. A change in Polish law in thisrespect is necessary. The remedies of Polish consumers are depen-dent upon the contents of the guarantee, but if the guarantee is notclear on a certain issue the Civil Code will apply. At present a typicalcommercial guarantee in Poland ensures that the goods covered byit are suitable for a normal use. Commercial or aesthetic values arenot usually covered by this guarantee.48 Also the division of goodsinto specific and generic, so important in the case of legal guaran-tees, has no relevance in the case of commercial guarantees. The defectmust have been present in the goods at the time of sale, otherwisethe guarantor usually will not be liable. The remedies, which can befreely chosen by the guarantor, are usually repair or replacement ofthe goods. The time limit for commercial guarantees can be set bythe guarantee itself, but if it is not done, Article 557 para. 2 of theCivil Code prescribes a one-year time limit.

There are no binding provisions in the Civil Code at present whichwould concern the contents of the guarantees, but there are certainother implied terms which cannot be derogated from. By virtue ofArticle 580, as amended in 199649 the buyer ought to deliver the defec-tive goods to the place specified in the guarantee document, or theplace from where the goods were first taken by the buyer, unless itcan be implied from the circumstances that the defect is to be remediedin the place where the goods were at the time it appeared. The costsof transport should be borne by the guarantor. The guarantor also mustperform all the obligations specified in the guarantee50 and deliverthe goods to the place mentioned above, and is liable for any lossor damage to the goods while they are in his possession. Accordingto Article 581, also amended in 1996, if the guarantor replacesthe goods, or performs crucial repairs, the term of the commercialguarantee starts running again from the time the replaced or repairedgoods are delivered. The same rules are to be applied in case only apart of a product is replaced or repaired, but only with reference tothis part. In other cases the guarantee period is simply suspended whilethe buyer is not able to use the goods because of the defect.


The Relationship Between Legal and Commercial Guarantees

It is not absolutely clear what the relationship between commercialand legal guarantees ought to be under the Directive (Article 8). Itseems, however, that the law in this respect has the purpose ofpreventing the situation where the consumer is a “slave” of a com-mercial guarantee, the terms of which are less advantageous to himthan the law on legal guarantees.51 Hence, the commercial guaranteeshould only improve the consumers’ position in comparison with thelegal guarantee (Letowska, 1999, p. 306). Unfortunately, the ConsumerSales Directive does not contain such an express stipulation. In Polandbefore 1990, commercial guarantees were mandatory, and a consumerwas forced to use this guarantee instead of the legal one.52 Only afterthe commercial guarantee had expired could he use his legal guaranteerights (the so-called “post-commercial legal guarantee”), albeit theperiod for doing so was only three months. As a result of the amend-ment of the Polish Civil Code in 1996 the legal guarantee rights canbe enforced by the consumers independently of the commercial guar-antee rights (Article 579 CC). However, there is still no provisionpreventing the commercial guarantee from offering less than a legalone. Changes are necessary in this respect, both at the European andthe Polish levels (Howells, 1994, pp. 5, 7, 12). Even if the Directiveis not amended as to this issue, its minimum character permits aregulation in the domestic law which is more advanced in terms ofconsumer protection. Hence, the Polish guarantee law reformers couldtake this into account and introduce the changes which would bebeneficial for consumers.

EXTRA-LEGAL FACTORS AFFECTING THE DEVELOPMENT AND

OPERATION OF GUARANTEE LAWS IN POLAND AND THE OBLIGATION

TO IMPLEMENT THE CONSUMER SALES DIRECTIVE

The nature, substantial content, and practical effect of the laws onguarantees are closely correlated with the historical, political, andeconomic reality of a particular jurisdiction, as well as what couldbe called its “legal culture” (Letowska, 1999, p. 296).53 It can beseen from the above analysis that Polish black letter law concerningconsumer sales is not much different from the one required by theDirective. Further, the given examples from the existing MemberStates show that they may be facing similar problems as regards


reforms in order to bring their laws in conformity with theDirective.

Still, it is submitted in this paper that the Polish and other post-Communist legislators face a much greater challenge. Central andEastern Europeans have come back after over forty years of theCommunist influence to building market economies and democraticstates. A strong will to transform the ill-functioning countries isbeing accompanied by a strong will to forget the past. As much assuch developments are welcome, both by the “West” and by the “East,”it is clear that the past cannot simply be erased. Even now, whenCommunism in the Central and Eastern Europe is “dead and buried”(Zweigert & Kotz, 1998, p. v), its spirit is very much alive and hauntsall aspects of life of the newly freed nations.54 Socialist market reality,government ideology and policy are the factors which have had themost significant impact upon the consumer protection measures.The attitudes of the legal profession, so important in the effectiveimplementation and operation of law, remain under a direct influ-ence of these elements extending far beyond the scope of black letterlaw, and cause additional difficulties in the efforts of the post-Communist countries to reform their laws.55

The tendency among lawyers and academics to treat laws as a resultof a coexistence of a set of political, historical, economic, and socialfactors56 is of primary importance in planning and conducting theharmonisation of laws of Central and Eastern Europe with the WesternEuropean laws. Under the auspices of the European Union the har-monisation is at the moment progressing steadily in order to enablethe former Communist states to become Member States of thiscomplex structure. Wide-ranging and multidisciplinary thinking isindispensable for the Central and Eastern European legal professionin adopting legal provisions similar to those in the European Union,and making them work. Furthermore, Western European politicians,lawyers, and academics need to assist their eastern neighbours in theimplementation efforts based on an understanding that their past andpresent legal systems are the result of different political and economicframeworks, but also that, in spite of all the differences, there aresimilarities, and that these need to be recognised and used to facili-tate the harmonisation.

Consumer protection is but one of the many areas in which changesin the post-Communist countries are needed. However, consumerprotection is not a notion which could be said to have been totally


absent from the Socialist vocabulary.57 Although the market, and hencethe law,58 were focused on the interests of the State, the interests ofthe consumers dealing with the State-owned undertakings were alsorecognised, and, at least in black letter law, protected.59 The qualityof goods was generally understood as one of the greatest challengesfaced by the consumers in socialist economies (Letowska 1999,p. 5). Laws protecting the consumers’ rights to buy products ofadequate quality were introduced in every Central and EasternEuropean country. Although they were at times quite similar to thoseof Western Europe, consumer protection was carried out in a dif-ferent manner than in the “West.” There are two underlining issuesexplaining such a situation. These are (a) the different economic andsocial position of citizens of the Western and the Central and EasternEurope, and (b) the differences in the philosophical approach to con-sumers. These divergences, although now diminishing, still remainrelevant. They will be the subject of analysis in the following partof this paper.

The Position of Consumers in Poland and Certain Other Post-Communist Countries Then and Now: Markets, Philosophy,and the Idiosyncrasies of the Legal Profession

Polish consumers have experienced changing political and economicconditions during recent years. Has their position improved in the newmarket economy? Ewa Letowska, a distinguished consumer protectionlawyer and the former Ombudswoman of the Republic of Poland,has in her Law of Consumer Contracts60 (1999) provided an excel-lent picture of the position of Polish consumers in the changing reality.Her brilliant arguments can be considered as relevant in a descrip-tion of the situation of consumers not only in Poland, but also inother former Communist countries, especially those of Central Europe.It seems from her analysis that the new economic and political orderintroduced in post-Communist countries is not as “consumer friendly”as one might assume. According to her, consumer protection in Polandhas been a “victim” of an axiological confusion. She explains thatthose responsible for protecting the consumers, and among them thelegal profession, have not been convinced that this group truly needsprotection (1999, pp. 2, 3). In the previous Communist period, the law-makers, lawyers and courts were reluctant to accept that the interestsof an individual consumer could be worth protecting against state-


owned companies. At the moment some of them seem to assume thatthe best protection of consumers can be ensured by the market itself(1999, pp. 3–8). How was it possible for such idiosyncrasies to evolve?The answer is that they were conditioned by the political and economiccontext the legal profession found itself in. Let us now consider thiscontext.

It is very difficult to conceive of a law which would be able toprotect the consumers’ right to receive products of the right qualityin a market where any product which appears is being bought withno hesitation and whatever its quality or aesthetic value. For the con-sumers themselves, quality was always the second most importantthing, after the mere possibility to acquire a product.

The typical situation in every Socialist legal system was thepresence of legislation which was either disregarded or merely impos-sible to apply in practice. The position of consumers was truly complexbecause of this phenomenon. The reality of the Socialist market madesome of the laws for consumer protection seem like empty declara-tions (Zabczynski, 1996). What could the consumer’s options be incase the acquired product was of poor quality? In the market whereproducts were scarce exchange was unlikely, and assuming that repairwas impossible in a particular case, the only option would have beento withdraw from the contract or demand a decrease in price. Whatwas the next step for the consumer whose needs were left unsatis-fied? In the market where the money chased the product61 all theconsumer wanted was to acquire products and services necessary tosatisfy basic needs. In practice the money back/termination of contractof sale solution was, although available, highly undesirable, and pricereduction did not provide the consumer with the product of reason-able quality.

As it can be seen from the above, the real problems for the con-sumers in terms of product quality lay mainly outside the frameworkof laws introduced for their protection. What were the sources of theseproblems? In order to give a more illuminating account, Polish realitywill be compared with that of two other Central European countries:Hungary and the Czech Republic.

The weight given to the issue of quality, as well as the existing solu-tions, were very closely related to the way the market operated in aparticular country, and this in turn reflected the political and histor-ical reality. In Hungary the policy of compromise led to what issometimes being called “Kadarism,” or even a “goulash Communism.”


According to Kosztolanyi (1999, p. 1), a very simple rule was thefollowing: Hungarians were able to enjoy many privileges, such asa variety of available food or consumer durables, as long as they didnot oppose the general Socialist policy. In the light of the market beingbetter equipped with consumer goods – although consumer policy wasnot something the government would openly admit to62 – consumerawareness and confidence in Hungary were probably higher than inmany other Central and Eastern European countries, including Polandor Czechoslovakia. The number of private companies was growing.Consumer durables such as TV sets or domestic electric applianceswere very expensive (only domestic brands were offered), but inHungary the banks were probably more eager to offer credit to con-sumers willing to buy them (Kosztolanyi, 1999, p. 1). Further, althoughthe waiting time for cars (again, virtually always domestic or otherCommunist countries’ production) and telephones was sometimeslonger than a consumer’s life,63 again the availability of a greatervariety of products and credits made it easier to acquire them. Withgreater supply, there was a greater chance of making a choice of athe product of better quality. The economic incentives for producersand sellers were stronger.

Unfortunately, the situation in Czechoslovakia and, particularly,in Poland, was much more complicated. Czechs, although trying toavoid direct confrontation with the Soviets, did not escape their inter-vention in 1968. After the intervention, the policy of “normalisation”was adopted and Czechoslovakia achieved some economic progress.Private economic activity, although not as dynamic as in Hungary,was growing in size and scope. The supply of products was notsatisfactory, but better than in Poland, where there were much morefrequent changes of Party leaders and less stability. After Stalin’sdeath, the liberal approach established by the new leader of the PolishUnited Workers’ Party (PZPR) Wladyslaw Gomulka very soonchanged into the application of strict Socialist principles. Hissuccessor, Edward Gierek, intending to improve the quality of lifein Poland, using foreign credits. After a short period of success andeconomic progress, Poland found itself in an even deeper crisis thanbefore, now burdened with debts. Following the increases of prices,strikes broke out in 1980. The establishment of Solidarity, the martiallaw, and the deep economic crisis followed.64 The position of con-sumers in such political and economic conditions was very insecure.


It is easy to imagine how ineffective any consumer protection lawscan be in such circumstances.

Although the Socialist state assumed the role of protecting thecitizens,65 it also imposed the general presumption that what was goodfor the state, was good for all (Letowska, 1999, pp. 2–4). Whathappened if the consumer was not satisfied with the quality of aproduct offered to him by a state-owned company? That was when thetrue, “façade” nature of consumer protection in the Socialist economybecame obvious (Zabczynski, 1998, p. 7). In a market where theState owned almost every company, each attempt to obtain justiceagainst such a company was from the start made very difficult, forit was understood as, at least to a certain extent, an action againstthe State. How did the legal profession react to such difficultconditions? According to Letowska, representatives of the legal pro-fession, being consumers themselves, disillusioned with the Socialistmarket reality and philosophy, got accustomed to being abused bythe professionals and the State, hence they considered that the otherconsumers should also be willing to accept such treatment withoutcomplaint (1999, p. 7). It is easy to imagine that in the light of thisthe consumer knowledge of remedies offered by law, and the confi-dence in this law, were very poor.

After the demise of Communism in 1989 and 1990, those diffi-cult conditions began to improve steadily. The flow of poor qualityforeign goods into Central Europe ended very quickly as a result ofcompetition from domestic producers. After a few years, the numberof private companies in Central Europe would be significant, andthe competition in the consumer markets would ensure the supplyof better quality products. Why, then, is the position of consumers stillunsatisfactory, as Letowska (1999) points out? Contrary to what onemight have expected, the attitude of the legal profession towards theconsumer rights did not dramatically shift towards respecting thoserights, even though there was no form of Socialist ideology stoppingthe progress. According to Letowska, Poland has commenced buildingcapitalism, but capitalism as it was when the country left it at thestart of the Second World War (this fact can, no doubt, be also foundin other newly freed nations of Central and Eastern Europe, althoughfor example Hungary was able to go through a transformation muchearlier than Poland). Letowska (1999, pp. 3–8) noticed that suddenly,with the introduction of a variety of products into the market and


free competition between enterprises, it was believed that the freemarket is capable of protecting the interests of all its actors, includingthe consumers.

In the Communist period the State was falsely understood ascapable of protecting the citizens’ interests and among the protec-tive activities those aimed at the consumers were distinguished.Because such thinking was completely ineffective and even detrimentalto the consumer interests, the legal profession was totally disillusionedwith the State intervention in the market. Lawyers welcomed the freemarket ideas as an infusion of healthy, fair competition, hoping thatit, on its own, would be capable of curing the ills of the post-Socialistmarkets and provide the consumers with an adequate level of pro-tection. The consumer protection laws are still, therefore, not usedto their full potential, neither by the lawyers nor by the consumersthemselves.66 Having gone from one false conviction to the other,what is needed now is some well-founded and informed approach toconsumer protection. The legal profession in the post-Communistcountries needs to understand that the capitalist markets are imperfect,and they very often fail to secure the interests of all the people.Consumers are, unfortunately, often the victims. Although with theconclusion of the Association Agreements with the European Union,the countries of Central and Eastern Europe have committed them-selves to the policies which the Union considers crucial, and amongthem consumer protection policy, to change the black letter law isone thing, and to change the attitudes built over many years is quiteanother.

The Role of the European Union in the Efforts of the Post-Communist Countries to Implement Its Consumer ProtectionLaws

Central and East Europeans need guidance in the effective imple-mentation of the consumer protection laws of the European Union.The guidance, ranging from expert assistance in adopting relevant legalprovisions to the proper explanation of the aims the laws are to serve(in the travaux preparatoires as well as in the preambles) is neededhere much more than in any existing Member States. The Unionitself needs to be consistent in its determination of the goals the lawsare to achieve. It can be seen from many European instruments forthe protection of consumers,67 and the presently analysed Consumer


Sales Directive is no exception, that this consistency has not alwaysbeen ascertained. Consumer protection is an example of a policy, inwhich ambitious plans of the Community institutions, such as theEuropean Commission and the European Parliament, are being dilutedduring their translation into legal provisions. The policy of consumerprotection was initially neglected by the founding fathers of theEuropean Communities, only to be picked up in the 1970s. In spiteof the commitment and enthusiasm of the Community institutions,seen in consumer protection programmes and action plans, onlya few significant acts were passed until the Treaty of Maastricht(1992), where consumer protection was finally given the status of aCommunity policy (Articles 3(t) and Article 153). At the momentthe process in developing a legal framework for consumer protec-tion is steady, but the consumer protection objectives have alwayscoexisted with the objectives of protecting the market and businesses.68

Another obstacle on the way to consistency are the very oftenconflicting interests of the Member States, which are not alwayswilling to give up their own national rules for the law of the EuropeanCommunity. Consumer protection law is a group of rules originatingin various other branches of law, such as contract or tort. These havedeeply national and traditional connotations. The atmosphere of com-promise, as can be seen from the Consumer Sales Directive itself, isnot always beneficial to the ultimate aim of protecting the Europeanconsumer effectively. It leads to adoption of the lowest commondenominator reforms, often very limited in scope. Such provisions,leaving large, often crucial areas to domestic regulation, create thefeeling of incompleteness and lack of determination on the part ofthe Community, a feeling that the post-Communist countries couldcertainly do without. Although it cannot be denied that in certain casesharmonisation is impossible or unnecessary, once the decision toharmonise has been made, it has to be followed through. Otherwiseone runs the risk of not achieving the primary aims of the harmoni-sation, or, what is even more dangerous, confusion and seriousmisunderstandings appear as to the state of law, which are then usedto the detriment of consumers by unscrupulous traders.

The Consumer Sales Directive was adopted after a long period ofdiscussions and consultations commenced by the publication of theGreen Paper on Guarantees for Consumer Goods and After-SalesServices. The discussions concentrated on the need for harmonisa-tion of law in the area of consumer sales and guarantees, as well as


on the scope and nature of the planned regulation. The post-Communist countries did not take part in the negotiation process. Still,they need to implement the Directive just like the existing MemberStates. In the light of the above observations, and the fact that thetext of the Directive seems sometimes to favour the spirit of freedomof contract instead of the consumer protection postulate,69 this taskmay not be an easy one to fulfil. It must be remembered that lawswhich seemingly are beneficial to consumers have been operating inPoland for some time now. Still, the consumers have not been ableto enjoy them in full, for the reasons given above. Following EwaLetowska (1999, p. 305), it can be said with certainty that, while inother, more developed jurisdictions, even the less beneficial lawswould in practice be used by lawyers and judges to establish a com-prehensive consumer protection regime, in Poland even the mostadvanced laws may not be used. The Polish legal profession has stillnot developed enough to be able to use the opportunities offered bylaw. This is the problem faced by many post-Socialist jurisdictions.It needs to be addressed and continuously fought if the post-Communist States are to be at least as “consumer friendly” as theirWestern counterparts.

Another problem with which the post-Communist countries mustcope is the decision as to how the Directive shall be implementedinto their legal systems. As it was shown during the analysis of thePolish sales laws, the black letter laws are not in need of a signifi-cant reforming effort. In Poland, according to the principle of unityof civil law, the reform will probably take place in the Civil Codeitself. The proposals are now discussed among the lawyers, politicians,and the consumer representatives.

CONCLUSIONS

Consumer protection . . . has a bearing on what is probably the most central issue ofEuropean economic integration for it brings into very sharp relief the dialectics of openborders, protectionism, and bona fide intervention of the Member State and/or theEuropean Community to protect legitimate societal values and goals even if at theexpense of interrupting a free flow of goods on which the idea of a common marketplace is postulated. To understand the problematics of consumer protection in thecommon market context is to understand the core issue of European market integra-tion (Bourgoignie & Trubek, 1987, as quoted by Weatherill, 1999, p. 693; italicisedwords added by Weatherill).


The Polish, just like any other post-Communist country, treat thefuture membership of the European Union as a motive for an overalltransformation of their political, economic, and social frameworks intodemocracy and the free market. Consumer protection laws consti-tute one of the backbones of the free market regulation. Theimplementation of the Consumer Sales Directive is a crucial step onthe way to the effective operation of consumer policy in Central andEastern Europe. However, as can be seen from the analysis of the evo-lution of the Polish rules on legal and commercial guarantees, probablythe law itself constitutes the least important feature in this reform.How successful the consumer laws will be depends upon whetherthe economic, political, and social conditions surrounding them arechanged into those seen in the Western Europe. Without this processthe law will not be able to operate successfully to the benefit of theconsumers and according to the intentions of the Union.

The most significant problem of the post-Communist states is theattitude of the legal profession towards the consumers. Their lack ofbelief in state intervention for the benefit of the citizens, and very oftenlack of knowledge of consumer protection rules, presents a seriouschallenge to the reformers of consumer policy. Such an attitude alsohas a bearing upon the consumer confidence and knowledge of law.In 1998 the consumer knowledge and confidence in law in Poland wasexamined (Ozimek, 1998). It appears that Polish consumers value theirsafety and health, as well as the quality of the goods offered to them,the most. Although the most popular, and best-known, rights are thoseof legal and commercial guarantees, still around 30% of the testedconsumers are not aware of their rights in this respect. The moststriking factor is, however, that over 57% of the consumers in Polandsay that the reason for the lack of consumer activity in terms of productquality and safety is a complete lack of confidence in the positiveoutcome of their case.

What does it take for the Polish legal profession to change theirattitudes? The argument put forward in this paper is that more con-sistency in the European Union’s consumer protection policy isneeded. Consumer protection always coexists with the free market andcompetition postulates. The atmosphere of compromise and lack ofclarity in the Union’s policy is something which needs to be consid-ered as an obstacle to the successful operation of consumer protectionlaws. The Union may use the fact that the post-Communist coun-tries need guidelines and determination as an opportunity to actually


acquire this determination to a higher level than at present. Duringthe process of discussions leading to the implementation of theConsumer Sales Directive in Poland and other post-Communist states,the European Union ought to provide significant help, most of allthrough expert advice and assistance in promotion campaigns, in orderto broaden the knowledge and understanding of consumer protectionrules in these countries.

NOTES

1 Directive 1999/44/EC of the European Parliament and of the Council of 15 May1999 on certain aspects of the sale of consumer goods and associated guarantees,Official Journal L 171, 07.07.1999, P. 0012–0016. Here called the “Consumer SalesDirective” or “the Directive.”2 Article 1 of the Directive.3 Recital 2 of the Directive, emphasis on “fair” added by the author.4 See the Green Paper on Guarantees for Consumer Goods and After-Sales Services(1993), COM (93) 509 final.5 Recital 3 of the Directive.6 The paper uses the notions “Communist” and “post-Communist” to describe theCentral and Eastern European states. The reader should not be misled by the term “post-Communist,” as none of these countries was ever a Communist entity (Communismassumes the abolition of the State). As David and Brierley (1985, p. 156) pointedout, Central and Eastern European countries were merely “on their way” toCommunism. Still, the fact that the Communist ideals were being implemented thereseems to have been a sufficient reason for many writers and politicians to refer to themas “Communist,” or, at the moment, “post-Communist” countries. With regard totheir legal system and the legal and economic doctrine, however, the notion “Socialist”is widely used in comparative law, and the article follows this tendency.7 The so-called “Europe Agreements” were signed with the “Visegrad Three” (Poland,Hungary, and Czechoslovakia) in December 1991 (Dinan, 1999, p. 189). For thedevelopment of relations between Central and Eastern European countries and theEuropean Union – the Copenhagen Criteria and the Agenda 2000 – see Dinan (1999,pp. 189–194) and Grabbe and Hughes (1998, pp. 29–89).8 The Guidelines of the Polish Supreme Court on the interpretation of law and judicialpractice concerning legal and commercial guarantees of 30.12.1988, III CZP 48/88,OSNCP 1989/3 poz. 36 – still relevant for certain aspects of guarantee rules – stressthe importance of guarantees for the consumers’ needs, as well as the developmentof the whole society (the Guidelines, very popular during the Communist domina-tion as an instrument of consolidating and explaining the law in various areas, arenot being issued any more). For the European Union’s approach, see the Preambleto the Consumer Sales Directive, in particular Recitals 4, 5, and 6.9 Legal guarantee – “rekojmia za wady” (guarantee for defects); commercial guar-antee – “gwarancja jakosci” (“warranty of quality”). Legal guarantee is regulated byArticles 556–576 and commercial guarantee by Articles 578–582 of the Civil Code.10 Act of 28 July 1990, Dz.U. No 55, poz. 321.11 Act of 23 August 1996, Dz.U. No 114, poz. 542.12 Dz.U. No 64, poz. 328. It now needs to be found in an easily accessible place in


every shop in Poland. The Regulation was issued on the basis of Article 384 of theCivil Code, which empowers the Council of Ministers to issue regulations concerningmaking and performing consumer contracts, as far as the protection of consumerinterests requires such regulations.13 Civil Code Book 3, Title 11, Division 3. The so-called “after-commercial legalguarantee” (rekojmia pogwarancyjna), only available for 3 months.14 Dz.U. No 55, Poz. 321.15 There are still, however, certain provisions which cannot be derogated from;these are Articles 580 and 581, examined further on in the paper.16 Note, however, that at present the person offering the commercial guarantee inPoland can set the boundaries of his liability in a different manner. 17 Legal guarantee: Article 556 para. 1; commercial guarantee: Article 577 para 1of the Civil Code. For a further explanation of the meaning of “defect,” see below. 18 “Physical defect” is defined only in Article 556 para 1. Provisions on commer-cial guarantee, although using the same notion, do not define it further.19 For the explanation of how these expectations can arise, see the analysis of legalguarantees further on.20 The number of private companies was very insignificant, and so was the numberof transactions between them. 21 Dz.U. No 55, Poz. 321.22 The analysis of the position of consumers (called at the time “buyers”) in theGuidelines of the Polish Supreme Court on the interpretation of law and the courtpractice as regards legal and commercial guarantees, 30.12.1988, III CZP 48/88,OSNCP 1989/3 poz. 36.23 Dz.U.No 22, Poz. 271.24 In Ochrona Konsumentow, 2000, Vol. 2, p. 239.25 COM 95 (520) final. Emphasis added by the author.26 Furthermore, the Regulation applies only to legal guarantees in contracts of saleof movable goods to consumers.27 See Arnokouros (2001, pp. 265–268) for an example of the Greek understandingof “consumers,” which is even broader than the regulation of the Polish Civil Code,and the conclusion that it may not constitute a problem at all.28 See Micklitz and Amtenbrink (1995, p. 123) for an explanation of the German rulesconcerning the manufacturers’ liability in guarantees.29 However, Article 557 para 1 of the Civil Code, analysed further in the later partof this paper, provides that the seller is not liable if the buyer knew of the defect atthe time of making the contract (specific goods) or at the time the seller partedwith the goods (generic and future goods). It may well be that this article, with regardto specific goods, aims at achieving similar results as the possibility of the sellercorrecting the public statement at the time of making the contract and not beingliable if the goods do not comply with the statement (Article 2(4) of the Directive).The buyer in Poland, knowing that the statement was incorrect, would not be able torender the seller liable (he knew of the non-compliance). In the case of generic or futuregoods the situation is different, because the moment of knowledge is not the makingof the contract, but the seller’s parting with the goods. It seems, however, that accordingto Article 557 para 1 of the Civil Code the buyer cannot render anyone else liablefor their non-compliance with the statement.30 SN (Polish Supreme Court), 22.11.1973, III CRN 255/73.31 20.07.1990, I CR 528/90, followed by the Court of Appeal of Katowice on08.12.1998, I ACa 473/98 OSA 1999/5, poz 20, p. 32.32 SN, 30.05.1995.33 I ACr 274/92.


34 SN, Civil Chamber, 28.11.1997, II CKN 459/97.35 The Court of Appeal of Lodz, 28.08.1996, I ACr 250/96.36 For instance, the Austrian amendment to the ABGB implementing the Directivealso does not explicitly mention “conformity with the contract,” see Jeloschek (2001,p. 169).37 SN, 18.12.1973, I CR 363/73.38 In terms of cars, the view has shifted from treating them as specific goods (judge-ment of the Polish Supreme Court of 23 March 1978, IV CR 55/78) to treating themas generic goods, Ochrona Konsumentow, 2000, Vol. 2, p. 36.39 This opinion runs contrary to the judgement of the Court of Appeal of Poznan,which held in 1994 that the seller has an obligation to make the buyer, who is not aprofessional, aware of all the defects in the goods, even if these defects could havebeen easily noticed by the buyer (26.01.1994, I Acr 640/94).40 See the Proposal for a European Parliament and Council Directive on the Saleof Goods and Associated Guarantees COM (95) 520 final, of 18 June 1996.41 Note that the possibility of requiring reduction in price remains.42 The Regulation of the Polish Council of Ministers of 30.05.1995 introduces in para20 the possibility of the seller making repairs even if he is not the producer, but operateswith the producer’s authorisation.43 A similar idea is accepted in Poland, where second-hand goods are generallyconsidered as specific, and cannot be replaced. For a criticism of such an approach,see Twigg-Flesner and Bradgate (2000, p. 20).44 I C 2415/97/3.45 Letowska is not the only person in Poland concerned about this, i.e., whetherthe literal implementation of the Consumer Sales Directive would not be restrictingthe rights consumers are given by Polish black letter law at the moment. In a con-versation with the author of this paper the President of the Polish Consumer FederationMalgorzata Niepokulczycka expressed similar concerns.46 As it was said above, the notion “delivery” has not been defined by the Directive;hence this provision may be the source of confusion.47 Polish former regulation added to these requirements also the minimum periodof guarantee and the maximum number of repairs before the goods can be replaced.48 See above for the different regulation of legal guarantees.49 Act of 23 August 1996, Dz.U. No 114, poz. 542.50 This provision can be compared to Article 6(1) of the Directive, which specifiesthat guarantees are to be legally binding “under the conditions laid down in the guar-antee statement,” but the Code still needs to be amended, as it does not contain therequirement of the guarantee complying with the “associated advertising.”51 See also the Unfair Contract Terms Directive 1993 and Article 6(2) of theConsumer Sales Directive, which stipulates that a commercial guarantee shall not affectthe “legal rights under applicable national legislation governing the sale of consumergoods.” 52 It must also be acknowledged that such commercial guarantees were not muchdifferent in scope than the legal guarantees.53 The latter concept, used by Letowska with reference to the “culture of the legalprofession,” is crucial when the practical effect of guarantee laws is considered. It isdeveloped later on in the paper.54 Although Zweigert and Kotz (1998, p. v) contend that “it will take a long timeto erase the traces of more than forty years of total subjection to political ideology,”they removed the chapters on Socialist law from the new edition of their compara-tive law book. De Cruz, on the other hand, still considers it worthwhile to devote achapter to this legal tradition (1999, pp. 183–212).


55 The legal profession is understood in this paper as, on the one hand, the lawmakers(the problems with regard to them may involve lack of consensus as to the need fora comprehensive regulation of the consumer protection issues and as to the substan-tive content of this regulation), and, on the other hand, the legal advisers and judges,whose task it is to advise the consumers and businesses and adjudicate in cases betweenthem (problems here may be related to the lack of sympathy of this group towardsthe consumers as the weakest actors in the market). 56 Cotterrell (1992) for instance points out that “everything in law’s institutionaland conceptual character needs to be understood in relation to social conditions thathave given rise to it” (p. 24). Others who expressed their conviction of the impor-tance of this multidisciplinary approach are, in the context of consumer protection,Harvey and Parry (1994) and, in the context of EU law, Craig and de Búrca (1998).57 A great deal has been written about consumers during the Communist period inthe Central and Eastern Europe’s history; some of these books and articles are men-tioned in this paper. On the position of Central and Eastern European consumers incomparison with the Western European ones, see the last part of the paper.58 According to David Trubek (a statement given in the context of consumer pro-tection law) “laws and markets are the same thing; that is, what we call a ‘market’is a set of behaviours and relations that are, in part, constituted by law” (Bourgoignie& Trubek, 1987, p. 6). 59 Even in the vast case law they were protected, although of course this was onlyas far as it was possible to protect consumers in the given economic and, especially,political circumstances.60 The title translated by the author. Original title: Prawo Umow Konsumenckich.61 Contrary to the market where the money is being chased by the products, thecapitalist market (Letowska, 1999, p. 5).62 The protection of an individual was accepted by the Communist ideology onlyas far as the interests of this individual did not run contrary to the interests of the wholesociety. Too much comfort and luxury was generally considered as signs of selfish-ness and against the socialist philosophy (personal comment by the author).63 This led to the Parliamentary debate as to whether applications for phones shouldbe inheritable (Kosztolanyi, 1999, p. 1).64 For a more detailed analysis of the history of Central Europe, see Lewis (1994).65 In Czechoslovakia, for instance, where according to Article IV of the Civil Code“satisfaction of the material and cultural needs of the citizens (was) the primary dutyof socialist organisations,” not only the state institutions, but also the state-owned enter-prises, were required to act in accordance with the needs of the citizens (Knappowa& Wilhelmsson, 1989, p. 44). 66 It seems, however, that especially Hungary is already more advanced in combat-ting this attitude and introducing a modern consumer protection approach followingthe examples of the European Union. Such a situation is partly caused by the factthat Hungary was much more consumer-conscious already during the Communistperiod. For Poland and the Czech Republic more time is needed.67 See the Product Liability Directive and the analysis of the Directive by Stapleton(1994).68 Here again, the Product Liability Directive can serve as an example.69 See the examination of the provisions of the Directive, and in particular the “con-formity with the contract” requirement, as well as the hierarchy of the remediesavailable to the consumer.


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THE AUTHOR

Magdalena Sengayen is a Visiting Lecturer in EU Law and Consumer Law and aresearch student at the University of Westminster, Law School, Regent Campus, 4Little Titchfield Street, London W1P 7FW, UK. Fax: +45 207 911 5821; e-mail:[email protected].

She is indebted to Mrs. Malgorzata Niepokulczycka, President of the PolishConsumer Federation, and Professor Miroslaw Nesterowicz from the University ofNicolas Copernicus, Torun, for their invaluable comments and remarks on the nuancesof the Polish guarantees system.


Documents

Consumer Sales Law in Poland: Changing the Law, Changing Attitudes