Court of Appeal: there is no unfair market practice without intent
The President of the Office of Competition and Consumer Protection (UOKiK) imposed on an insurer a penalty for the alleged infringement of collective consumer interests. According to the President, the insurer had used an unfair market practice by placing illegal provisions in the General Terms and Conditions of Insurance. This misled consumers as to their rights.
On 8 March 2018 the Warsaw Court of Appeal repealed the decision of the President and stated that the insurer's action was not deliberate. As the Court said, the invalidity of the provisions of the General Terms and Conditions of Insurance was controversial and the adoption by the insurer of a specific legal interpretation, arguing for its admissibility, did not indicate that it attempted to deliberately mislead customers.
The court ruled that while the Act on Counteracting Unfair Market Practices does not explicitly establish reasons for intentionality, this condition can be derived from Directive 2005/29 / EC, which the UPNPR implements. Pursuant to the Directive, the premise for a market practice to be considered unfair is to use a commercial practice to significantly limit the consumer's ability to make an informed decision.
In the opinion of the Court of Appeal, the behaviour of the business entity must include intent to significantly limit the consumer's ability to make an informed decision. The Court of Appeal accepted that this is also applicable under Polish law. The lack of intent on the part of the insurer therefore ruled out that he had used an unfair market practice and thus infringed the collective interests of consumers. This decision may help businesses in undermining the decisions of the President of the UOKiK, especially if it is debatable if a certain practice should be considered an unfair market practice.
The President of the UOKiK is entitled to lodge a cassation complaint. Source: CMS