New consumer rights in the Polish Electronic Communications Law

On 10 November 2024, most provisions of the Electronic Communications Law (in Polish) (the “ECL”) will come into force. The act, often referred to as the ‘constitution of the telecommunications market,’ covers a wide range of issues, including those relevant to consumer protection.

The ECL will replace the Telecommunications Act  (in Polish) in Poland and implement two European Union Directives: The Directive establishing the European Electronic Communications Code and the Directive on the harmonisation of the laws of the Member States relating to making radio equipment available on the market. 

The extended scope

In comparison to the Telecommunications Act, the ECL will apply to a wider group of entities.

In addition to the traditional telecommunications services sector, it also governs the provision of interpersonal communication services that do not connect with publicly assigned numbering resources, namely, a number or numbers in national or international numbering plans. That group includes e-mail providers, instant messaging services, and online meeting tools.

Selected new consumer protection obligations

Providers of electronic communications services must fulfil the new obligations. Among the most important changes to consumer rights are:

i. New entities with consumer rights

Apart from the consumers themselves, certain consumer rights have so far been available to sole traders. The ECL also grants certain consumer rights to micro-entrepreneurs, small entrepreneurs and non-governmental organisations unless these entities agree that the provisions on consumer rights will not apply to them (Article 292 of the ECL).

In their relations with these entities, service providers will have to meet the following obligations:

• use of subscriber documentation such as for consumers (Articles 285-288 of the ECL);
• reduction of the maximum contract period to 24 months (Article 301(1) of the ECL);
• enable monitoring of service use (Article 317 of the ECL).

In the case of contracts with micro-entrepreneurs, small entrepreneurs and non-governmental organisations concluded before the ECL comes into force, the service provider must obtain the consent of these entities for not applying the consumer rights arising from the ECL to them.

ii. Pre-contractual information

Under Article 285 of the ECL, electronic communication service providers are required to provide certain information to consumers and entities exercising consumer rights prior to concluding a contract for the provision of electronic communications services.

The ECL provisions require such information to be provided in the form of T&Cs for the provision of a telecommunications service and a price list. The information requirements vary depending on the type of service, the internet access service and the electronic communication services.

The pre-contractual information must include all prices and charges. Once accepted by the entity exercising consumer rights, it becomes part of the contract and cannot, as a general rule, be amended unless the parties agree otherwise.

The purpose of these obligations is, amongst other things, to prevent the use of separate T&Cs and promotional price lists. 

Pre-contractual information should be provided on a durable medium.

iii. Contract summary

The summary of the main terms of the contract is a key document for subscribers regulated by the ECL. It is a one-page form, specified under the Commission Implementing Regulation (EU) 2019/2243 with regard to Article 102 paragraph 3 of the European Electronic Communications Code.

The obligation to share the contract summary enables subscribers to compare offers from competing providers.

A concise summary should include the following information in particular:

• the service provider contact details,
• the data needed to lodge a complaint,
• key features of the services provided,
• price list,
• duration of the contract,
• the conditions for renewal and termination of the contract.

iv. Unilateral change to the contract

The issue of the so-called modification clause, i.e. regulating the issue of the right of the service provider to unilaterally change the terms of the contract, has been causing many difficulties for years. Hence, changes in this area are particularly helpful for providers of electronic communication services.

The provisions of art. 306-308 of the ECL specify cases in which a unilateral change to the service provision contract with the subscriber is permissible. These provisions also specify the method of informing consumers at least one month before the changes are introduced.

Nevertheless, the provisions of the ECL do not eliminate the need to indicate the possibility of introducing a change in the service provision contract.

v. Other consumer-related obligations

The ECL introduces new obligations regarding bundled offers, automatic extension of contracts, and new obligations regarding the consideration of complaints about electronic communication services or optional debiting of the account.

Some of the abovementioned obligations were introduced earlier (in Polish) in the "Anti-Crisis Shield 3.0." 

Supervisory authorities and sanctions

The President of the Office of Electronic Communications (the “President of the UKE”) enforces the application of the ECL.

In the event of non-performance or improper performance of the obligations under the ECL, the President of the UKE can impose a fine of up to 3% of revenue generated in the preceding calendar year. The President of the UKE can also impose a fine on persons managing a telecommunications company of up to 300% of such person's monthly remuneration.

How can we help?

Bird & Bird's team invites you to contact us with regard to all consumer aspects of the ECL.

We can identify the ECL obligations you need to meet and suggest possible options for implementation. Adjusting to the ECL can involve amending T&Cs and general contract terms and changing some business processes.