Irrespective of whether a trader accepts or rejects the client’s complaint, they should inform the client of further ways the dispute can be resolved. If they fail to do so, they may be subject to obligatory mediation or conciliation. With the express consent of both parties to the conflict, the consumer dispute may also be resolved by arbitration.
On 10 January, the Act on Out-of-court Dispute Resolution entered into force. The regulations refer to economic relations between traders and consumers. Thus, on the one hand, it concerns professionals and companies, and on the other hand, natural persons who do not conduct business activities or, even if they do, a given agreement they conclude with another trader is not related to these activities (Article 221 of the Civil Code defines a consumer as a natural person who performs an act under the law with a trader who is not directly related to that person’s business or professional activities). The purpose of the Act is to reinforce the role of out-of-court dispute resolution. The entire procedure may be applied if the consumer is in doubt as to the quality of acquired goods or services, submits a complaint, and the trader, having considered the complaint and the consumer’s claims stemming from it, rejects those requests. Traditionally, in such cases, the consumer could withdraw from enforcing their rights or to take the case to a public court.
Now there is to be a fundamental change to an out-of-court mechanism for resolving disputes. Obviously, it still remains voluntary – which, in general, is a rule that governs alternative dispute resolution. This means that both a trader and a consumer must agree to such solution. However, the Act introduces a requirement of vigilance on the part of the trader. Although the trader does not have to agree to out-of-court dispute resolution, they will have such right as long as it validly informs their clients thereof. And they have to do so when responding to a possible complaint. Such obligation stems from Article 32 of the Act. Pursuant to that Article, if, as a result of a complaint filed by a consumer, a dispute is not resolved, the trader sends the consumer, on paper or on another permanent medium, a statement about the intention to file an application for proceedings to be initiated concerning out-of-court consumer dispute resolution or consent to participate in the proceedings or refusal to participate in the proceedings concerning out-of-court resolution of consumer disputes. If, however, the trader does not file any statement, this will be deemed to mean that they have consented to participate in the proceedings concerning out-of-court resolution of consumer disputes (Article 32 par. 3). In that case, the decision whether to take the case to such institution or to a public court will be down to the consumer.
Recommendations and resolutions
The Act does not impose any manner for resolving the conflict between a trader and their client. It is the parties that may choose which option to take. A selected person (or team of persons) may: hear the parties and help them to bring their standpoints closer; hear the parties and propose a solution; or hear the parties and resolve the dispute. In the first case, a person involved in the dispute resolution performs the role of a mediator, A kind of intermediary between the parties, helping them to break the deadlock in talks and persuading both parties to make concessions and reach a compromise. However, in the case of mediation, it is the parties that work out the solution. In the second scenario, the role of an intermediary amounts to conciliation. It analyses the standpoints of the trader and the consumer and attempts to find the best solution, One that will best correspond to the interests of the parties. Both mediation and conciliation have no binding force. Whether the agreement is reached or not, in particular, whether the parties accept the solution suggested in the conciliation depends on their own will. A mediator and a conciliator are not entitled to impose anything on the parties to the dispute. It is different in the latter case, i.e. the appeal to the arbitration court (arbitration). The resolution of the dispute by a person (team of persons) selected by the parties is final. Both the trader and the consumer have to accept it. Cases where the decision of the arbitration court is not valid and may be challenged by the party dissatisfied with the resolution are rare. Thus, it is emphasised in Article 42 of the Act that settling the consumer dispute by resolving the dispute and imposing the resolution on the parties is only possible if they have been informed of the binding character of the resolution being the result of the proceedings concerning out-of-court resolution of consumer disputes and the consequences of their failure to comply with such resolution and have agreed to acknowledge such resolution. The regulation also indicates that the dispute resolution, according to general rules of law or equity principles, cannot lead to the consumer being deprived of the protection they have been granted under the mandatory provisions of law applicable to that particular relationship.
The company’s responsibilities
Pursuant to Article 31, a trader who undertook or is obliged, on the basis of separate regulations, to make use of out-of-court resolution of disputes with consumers informs its clients of the authorised entity appropriate for that trader. Such information, covering at least the authorised entity’s website address, should be made available in a manner comprehensible and easily-accessible to the consumer, including: on the trader’s website, if the trader has one, in standard agreements concluded with consumers, if used by the trader. The aforesaid authorised entity is an institution (organisation, association, or chamber) with facilities and staff needed for out-of-court dispute resolution. It is an entity established on a permanent basis, which offers independent, impartial and transparent proceedings concerning the resolution of disputes between the consumer and the trader. Such entities will be able to be created, e.g. by groups of traders (associations, chambers of commerce and industry), consumer associations, and together by representatives of companies and consumers. Moreover, in the system of authorised entities, trade inspection will also operate. A number of responsibilities and requirements will lie with that institution. Their fulfilment will be monitored by the Office of Competition and Consumer Protection. The authorised entities may operate after they have been entered in a special register and based on the regulations of a given entity. It is worth noting that the term ‘authorised entities’ does not cover the company’s in-house complaint department, i.e. entities of an internal nature, where persons responsible for resolving disputes are only employed by the trader.
As a rule, a consumer files the application for dispute resolution following an unfavourable outcome of the procedure connected with complaint submission, That is when it was not settled as the consumer had intended or it was rejected in its entirety. However, the regulations of a specific authorised body may also allow the trader to file the application. The authorised entity defines which documents are indispensable for the proceedings to be conducted in its internal regulations. Still, the application for proceedings to be initiated concerning out-of-court resolution of consumer disputes should include at least: page marking, a precisely defined claim, indication of the type of proceedings (e.g. bringing the parties’ standpoints closer together or suggesting a solution), and the applicant’s signature.
Prepared by: Michał Kołtuniak (RP).
Agnieszka Skrok, lawyer at FKA Furtek Komosa Aleksandrowicz law firm
Article 32 par. 3 of the Act on Out-of-court Resolution of Consumer Disputes provides for presumption of the trader’s consent to participate in the proceedings concerning out-of-court resolution of consumer disputes, if the trader fails to provide the consumer with a statement about the intention to file an application for proceedings to be initiated or consent to participate in the proceedings or refusal to participate in the proceedings. The Act also introduces Article 11641 of the Code of Civil Procedure, which provides that the arbitration clause covering disputes stemming from agreements with consumers may only be drafted after the dispute arises and requires a written form, with the arbitration clause also to indicate (otherwise being null and void) that the parties are aware of the consequences of the arbitration clause. Consequently, it should be assumed that the presumption provided for in Article 32 par. 3 of the Act cannot replace the trader’s consent to the proceedings in the form of arbitration expressed in a manner provided in the Code of Civil Procedure.