Entrepreneurs – consumers with new rights, but without support from the Office of Competition and Consumer Protection (UOKiK).

As of the beginning of the new year (from 1 January 2021), an amendment to the Consumer Rights Act and the Civil Code will come into force, significantly altering the existing course of transactions — entrepreneurs purchasing goods or services for purposes directly related to their business activities, but not of a professional nature, will be entitled to additional privileges. They will be treated as consumers and, as such, will be covered by the consumer protection provisions, even though they are entrepreneurs. Retail chains, online shops, and other sellers should begin preparing for the implementation of the new regulations. This will require changes to terms and conditions and contract templates, as well as the inclusion of the new provisions in dealings with business-consumers.

Following the change in legislation, from 1 January 2021, a person conducting a business activity will be entitled to consumer protection in the following areas:

• unfair contractual terms — so-called abusive clauses,
• statutory warranty for defects,
• the right to withdraw from a distance or off-premises contract (e.g. online purchases).

To qualify for consumer protection, a sole trader must meet one condition — the agreement concluded with the seller must not be of a professional nature, meaning it must not directly concern the trader’s area of specialisation. This refers to situations where, due to the nature of their regular business, the entrepreneur cannot reasonably be expected to possess knowledge or experience in a given field. The seller of the goods or service should verify whether, for the prospective customer, entering into such an agreement is of a professional nature or not.
Updating terms and conditions

The new consumer regulations will require sellers to include new provisions in their terms and conditions relating to this category of business-consumers.

A third category of party, entitled to consumer rights, should be included in the terms and conditions. Note! This new group of entrepreneurs should not be classified directly as consumers. This is because they are not consumers in the legal sense — they are only granted certain consumer rights. Therefore, sellers should supplement their terms and conditions with distinct provisions dedicated exclusively to this group.

In addition, the content of the terms and conditions should be reviewed in light of the three areas in which this third category will be granted consumer rights: unfair contractual terms, statutory warranty for defects, and the right to withdraw from a distance contract. Sellers should determine what will change in these areas for the newly entitled group. Each provision of the terms and conditions should then be checked to see whether the given right or obligation applies to this new category or not.

Right to lodge a complaint

This new category of party will also benefit from preferential rules regarding complaints. If an entrepreneur operating a business submits a complaint under the statutory warranty claiming repair, replacement, or a price reduction, then — after the amendment comes into force — the seller will be obliged to respond to the complaint within 14 calendar days from the date of submission. Previously, this deadline did not apply to entrepreneurs.

The provisions of the Civil Code on statutory warranties for physical defects also apply to used items. Therefore, if a sole trader purchases a second-hand product in a physical shop or via distance selling and it turns out to be defective, they are entitled to lodge a complaint within 2 years of receiving the item.

If the entrepreneur finds that the used item is defective, they may request a replacement with a defect-free product, removal of the defect, a price reduction, or a refund if the item cannot be repaired or replaced.

In addition to the above entitlements, from 1 January 2021, sole traders will be able to exercise the right to return goods purchased at a distance on the same terms as private individuals. Immediately after the amendment enters into force, online shops may expect an influx of returns from sole traders who gain this privilege. The right of return is subject to the same requirement as the rest of consumer protection — the agreement concluded with the seller must not be of a professional nature.

For example — a sole trader running an estate agency purchases a coffee machine for the office. The machine will be used by the entrepreneur’s staff. In this case, the purchase should be treated as a non-professional agreement. The seller should be prepared for the possibility that the customer may withdraw from the contract in the case of an online purchase. As a rule, the buyer will have 14 days to return the product. It is worth emphasising that the entrepreneur is not obliged to give a reason for returning the item.