New changes introduced to the Polish Code of Civil Procedure – separate proceedings involving consumers

In recent years, almost every “major” amendment to the Polish Code of Civil Procedure has brought a new separate proceedings. Barely three years have passed since the introduction of IP proceedings and the reinstatement of commercial proceedings and civil proceedings practitioners have to assimilate another new institution, this time proceedings involving consumers.

The basis of the new procedure is the protection of consumers as the weaker party in relation to the entrepreneur. It is therefore characterised by a clear asymmetry of power between the participants - naturally in favour of the consumer.

Moreover, the legislator decided that the provisions concerning other separate proceedings apply to the extent that they do not conflict with the provisions regulating proceedings involving consumers thereby firmly distinguishing the interests of consumers as a value subject to special protection in civil proceedings.

The provisions of the new proceedings apply both when a consumer sues an entrepreneur and is sued by an entrepreneur. What hides behind this statement is the fact, quite surprising to some, perhaps even to the legislator himself, that the new separate proceedings will apply both to a dispute between a consumer and an antique dealer on Allegro, and a tailor, who has sewn a suit that does not comply with the contract, and a lawyer, who believes that he has not been paid in full, and, last but definitely not least, with corporations - telecommunications operators, carriers, banks, insurers, i.e. the entities that the legislator had in mind in the first place when introducing the new procedure.

Furthermore, the newly introduced proceedings will include cases (brought by or against the consumer) involving persons, who have ceased their business activities, provided that the dispute arose against the background of a contract concluded by and between them in the course of their business activities.

A significant concession in favour of consumers is the possibility for them to also bring an action before the court of their place of residence. Its importance is greater than might be assumed by someone, who would want to regulate in a contract the jurisdiction of the court to the detriment of the consumer. One of the provisions concerning abusive clauses in the Polish Civil Code (Article 385(3)(23)) states that, when in doubt, prohibited contractual provisions shall be deemed to be those which impose the adjudication of a case by a court, which, according to the law, has no local jurisdiction. In the context of the still new provisions on consumer proceedings, this means that not only the provision: “the competent court shall be the court having jurisdiction according to the registered office of the entrepreneur”, but probably also the less significant: “disputes shall be resolved by the court of general jurisdiction”, will be a prohibited clause. In civil proceedings, the use of these clauses will be rather less severe, as courts will most often disregard them ex officio. However, their use in contractual templates may expose entrepreneurs to the unwanted attention of the Office of Competition and Consumer Protection. Internet sales from Rzeszów to Szczecin have become less attractive by the day - at least in terms of proceedings.

However, it is worth noting that this change harmonises national solutions with the regulations of EU law. According to the Brussels I[1] Regulation, as a rule, a consumer may bring an action against his or her counterparty in the courts of the Member State, in which the counterparty is domiciled, or regardless of the place of the counterparty’s domicile, in the courts for the place where the consumer is domiciled. Paradoxically, therefore, it has so far been easier for a Polish consumer to sue an entrepreneur from another EU country than a Polish one.

A fundamental manifestation of the aforementioned asymmetry of powers is the imposition on the entrepreneur of an obligation to bring up all claims and evidence - depending on their role in the proceedings - either in the statement of claim or in the statement of defence, respectively.

Claims and evidence invoked in breach of this obligation will be disregarded unless the entrepreneur makes it plausible that their invocation was impossible or the need to invoke them arose later. In such a case, further claims and supporting evidence should be invoked within two weeks from the date on which it became possible or the need to invoke them arose.

This newly established evidence preclusion - similar to the requirements imposed in commercial proceedings - undoubtedly strengthens the procedural position of the consumer. It can also be reasonably anticipated that the interpretation of these provisions in practice will be even stricter for entrepreneurs than in the case of evidence preclusion in commercial proceedings, especially as the courts are increasingly boldly resorting to a purposive interpretation that realises the fullest possible protection of the consumer as the weaker party in the proceedings.

The legislator’s only nod to some entrepreneurs is the imposition of an obligation on the court to provide instructions to entrepreneurs, who are not represented by professional attorneys (advocates, legal advisors). In general, however, it is easy to see that the legislator has clearly and firmly placed the protection of consumer interests above allowing the court to determine the actual facts.

In fact, the new proceedings also introduces an obligation on the entrepreneur to conduct a fair and objective complaint procedure or to participate in an out-of-court procedure for resolving disputes with consumers. This is because the newly introduced Article 458(16) of the Polish Code of Civil Procedure allows the court - irrespective of the outcome of the case - to charge the entrepreneur with the costs of the proceedings in whole or in part, and in justified cases even to increase them (but not more than twice), when the entrepreneur, before bringing an action, abandoned the attempt to resolve the dispute voluntarily, evaded participating in it or participated in it in bad faith and thus contributed to the unnecessary bringing of the action or the incorrect determination of the subject matter of the case.

Undoubtedly, this solution should make internal complaint procedures more orderly and encourage entrepreneurs to look more favourably at consumer claims. However, it is not difficult to guess that, especially among smaller entrepreneurs, the above-mentioned provision - above all the threat of imputation of bad faith - will rather have a chilling effect leading to the recognition of even unjust claims, as long as they do not get involved in disputes with litigants.

The disruption of the uniformity of civil proceedings by successive separate proceedings introduced is a phenomenon often criticised by the science and practice of law and at the same time this criticism is even more often ignored by the legislator. That is why it seems pointless to throw another pebble into the garden, although it is difficult to refrain from the observation that the legislator - already so fond of casuistry - adheres so firmly to the one-size-fits-all rule and has not introduced any exceptions for micro and small entrepreneurs, whose definitions are already well known in the Polish law and whose real position, including economic one, is closer to a consumer than to a large corporation. If one is already moving from formal to substantive justice, perhaps this should be done with greater precision.

The new proceedings is just three new articles - eight paragraphs in total. However, its practical relevance will obviously be greater than could be inferred from the modest regulation. Disputes involving consumers will make up an increasing proportion of civil proceedings, especially as arbitration is a viable alternative to the ordinary courts in commercial disputes. It will not just be disputes strictly concerning the content and performance of the contract either - because tort law issues will be the subject of litigation with insurers in consumer proceedings. It is therefore quite likely that in the near future we will witness a phenomenon similar to that occurring in substantive civil law. Just as, in civil law, specifically consumer institutions penetrate the sphere of so-called non-consumer relations and begin to shape the view of the “default settings” of civil law, similarly, the practice and interpretation developed in civil proceedings involving consumers will begin to penetrate the “general” civil process, especially if supported by European Union policy and legislation.

Even if the separate consumer proceedings disappears from the Polish Code of Civil Procedure in subsequent legislative interventions, the content and spirit of its provisions are likely to survive in the general legislation.