European Tower of Babel – one market, many languages
December 2015 | EXPERT BRIEFING | BOARDROOM INTELLIGENCE
It clearly follows from the communication ‘A Digital Single Market Strategy for Europe’, issued by the European Commission in May 2015, that creating a single digital market is currently one of the Commission’s key priorities. This goal can be achieved by even greater harmonisation of Member State legislation and removing the differences between national laws regarding telecommunications, management of radio waves, copyright and consumer protection regulation. The EU has already made some significant progress with the latter and one of the crucial milestones was the implementation of the Consumer Rights Directive. However, the language requirements applicable to consumer contracts are clearly not covered in the Directive and thus this issue is dealt with on a national legislative level. Consequently, regardless of European efforts toward the unification of the relevant legal framework, internet entrepreneurs, who operate on the business-to-consumer model, need to adapt their internet platforms to local language requirements. Below we present a brief description of the relevant legislation in Poland.
In Poland, the requirement to use the Polish language in communications to consumers is not particularly controversial. Pursuant to Article 7 of the Act of 7 October 1999 on the Polish language, in a legal relationship with consumers, one has to use the Polish language, if at the time of the contract’s conclusion the consumer is domiciled in the territory of Poland and the contract is, or will be, performed in Poland. Furthermore, the provision clearly states that the Act is applicable to documents and information that need to be issued or provided under Polish law. The Act provides some examples of documents and information which have to be in Polish, such the names of goods and services, offers, guarantee terms, invoices, warnings, manuals or product feature information, including advertisements. The one exception, which applies to warnings, manuals and the necessary information on product features, is that this may be presented in graphical form, provided that it is commonly intelligible.
Using the Polish language is also required by the provision of the Polish Civil Code regarding a sales contract. Pursuant to Article 5461 § 1 of the Civil Code, the seller is obliged to provide the consumer with clear, intelligible and unambiguous information in the Polish language, which should be sufficient to make proper and full use of the sold goods. This information shall, in particular, include the type of item, producer or importer information, product safety labelling and conformity required by separate legal provisions, information concerning marketing authorisation in Poland and, depending on the type of goods sold, their energy consumption and other data referred to in separate legal provisions. In addition, the seller is obliged to provide the buyer with a Polish language version of any use and maintenance manuals. A similar obligation applies to the guarantee document, though Polish is not required for trademarks, origin names and standard technical and scientific terminology. However, under Polish law a sales contract does not include a provision of services and hence the above rules would be relevant to online shops and would not apply to internet service providers.
Furthermore, more detailed requirements may result from the relevant sector regulations governing specific products or services. As an example, Article 5, Section 3 of the Regulation of the Polish Ministry of Economy of 5 April 2011 on the principal requirements regarding toys, which implements the Toy Safety Directive, requires the manufacturer or an authorised representative to place, among others, type name, batch serial or model number or other element allowing their identification directly on the toy (or on the packaging or even an accompanying document). On this basis, one has to conclude that each toy sold in Poland to a non-professional buyer needs to bear its type name in Polish. However, this is just an example of the failures within the implementation process – where Article 5, Section 3 regulation is based on the translation of the Toy Safety Directive which mistakenly mentions “type name, batch serial or model number”, whereas the original wording of the Article 4, Section 5 of the Directive in English says “type, batch, serial or model number”. As a result of this error, Polish law requires sellers to put the type name on toys (and this needs to be in Polish), which goes beyond the requirements of the Toy Safety Directive.
Using any language other than Polish in communication with Polish consumers may result in a failure to comply with the obligation to provide the consumer with the required information (i.e., information provided in a foreign language is deemed as not provided at all). This may have very serious consequences for entrepreneurs; for instance, the withdrawal term will be extended by 12 months, and the consumer is released from both their obligation to cover the costs of returning the goods, as well as from the potential liability for their diminished value. An even more severe sanction is that the contract with consumers is perceived as not concluded at all, when the entrepreneur fails to ensure that the consumer, when placing an order, explicitly acknowledges that the order implies an obligation to pay (e.g., through a legible button labelled with the words “order with an obligation to pay”). There is no doubt that if the required information is provided in English (or any other language), confirmation of the consumer of her awareness of the financial consequences of the deal will be ineffective under Polish law.
Furthermore, there is some risk that communicating with a Polish consumer in foreign languages may be considered misleading, which meets the criteria of unfair market practice. The Office for the Protection of Competition and Consumers may, under certain circumstances, classify this as a practice which infringes collective consumer interests, which may result in imposing a financial penalty of up to 10 percent of the turnover from the previous financial year.
Last but not least, failure to use the Polish language in relationships with consumers or to inform accordingly is a misdemeanour punishable by a fine of up to €1200.
Przemysław Walasek is a partner at Taylor Wessing. He can be contacted on +48 (0)22 584 97 40 or by email: firstname.lastname@example.org.
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