Contractual provisions that are not allowed in consumer contracts
When do disallowed clauses appear? When consumers are unable to negotiate the terms of a proposed contract, there is a risk that the trader will impose clauses on the consumer which will not be favorable to him, for example in the case of contracts used by banks, telephone operators, developers, insurance companies, travel agents, gas and electricity suppliers. etc. What to do when there are prohibited contractual provisions? Read our article!
What are illegal (abusive) clauses?
Civil Code in art. 3853 contains a catalog of criteria on the basis of which it can be assessed whether the contract contains illegal provisions. Illegal clauses are provisions which:
have not been individually agreed, they shape the consumer's rights and obligations in a manner that is contrary to morality and grossly violates his interests;
exclude the entrepreneur's liability for non-performance or improper performance of the obligation;
with interest higher than the maximum or excessively excessive contractual penalty;
allow the consumer contractor to transfer the rights and obligations under the contract without his consent;
make the conclusion of the contract subject to a promise by the consumer that he will conclude further contracts of a similar type in the future;
they only deprive the consumer of the right to terminate the contract, withdraw from it or terminate it, or reserve that the entrepreneur has the right to terminate the contract concluded for an indefinite period without indicating important reasons and maintaining an appropriate deadline.
How is contract template control performed?
The law provides for judicial or administrative control of contract templates:
judicial review consists in the fact that the consumer asks the common court (district or regional) to declare a given provision non-binding.
Administrative control consists in the fact that the consumer may apply to the Office of Competition and Consumer Protection, the municipal or poviat consumer ombudsman, the Financial Ombudsman and consumer organizations in order to find a given provision non-binding. In addition, UOKiK may ex officio initiate administrative proceedings to recognize a standard contract as prohibited provisions.
Who is entitled to submit a notification for recognizing the provisions of a standard contract (standard contract clause) as prohibited and where is such a notification filed?
In art. 99a paragraph. 1 of the Act on competition and consumer protection, a catalog of persons authorized to report to the President of the Office of Competition and Consumer Protection a notification on suspected violation of the prohibition to use prohibited contractual provisions in templates of contracts concluded with consumers is included.
Pursuant to this provision, such notification may be submitted by: a consumer, consumer ombudsman, Financial Ombudsman, a consumer organization or a foreign organization entered on the list of organizations authorized in the European Union countries to initiate proceedings for recognizing the provisions of a standard contract as prohibited.
The legally required elements of the notification are:
indication of the entrepreneur who is accused of using prohibited provisions of the standard contract,
description of the facts constituting the basis for the notification,
indication of the challenged provision,
substantiating the illegal nature of the clause,
data identifying the notifier of the notification.
Illegal provisions - consequences
The President of UOKiK in a case for recognition of prohibited provisions of a standard contract, issues an administrative decision in which he decides whether a given clause is illegal and prohibits its further use.
This decision has effect only in relation to the entrepreneur who applied it and to all consumers who concluded a contract with him on the basis of the clause indicated in the decision. This is called abstract control of the provisions of a standard contract.
The President of UOKiK is entitled to impose a fine on the entrepreneur and the entrepreneur's obligation to remedy the consequences of violations of the law.
The initiation by the President of UOKiK of administrative proceedings aimed at forbidding a given entrepreneur from using the questioned provision in a standard contract after the notification is submitted is not obligatory.
Always after submitting the notification, the notifier receives information along with the justification on the manner of considering his notification.
If there is an abusive clause in the contract, only this clause is not binding, and the parties are still bound by the contract in the remaining scope.
On the other hand, if the contract that the consumer has already signed contains illegal provisions, they do not bind the consumer by operation of law.
[alert-info] If, on the other hand, a specific clause entered in the register of abusive clauses is used by the same entrepreneur to whom the entry was made, it is reasonable to submit a notification to the Office of Competition and Consumer Protection on the suspicion that the entrepreneur is using a practice violating collective consumer interests. As a result of the conducted proceedings, the President of UOKiK may prohibit the entrepreneur from such practice and impose a financial penalty on him.
The assessment of whether in a given case we are dealing with a practice violating collective consumer interests should be made on the basis of the joint fulfillment of three criteria, which are: the actions of the entrepreneur, the unlawfulness of these actions, and the infringement of collective consumer interests. Traditionally, unlawfulness is perceived as being contrary to the applicable legal order. When assessing illegality, it is necessary to consider whether the entrepreneur's behavior was consistent or inconsistent with the applicable principles of the legal order. The source of these principles are the norms of universally binding law, as well as the orders and prohibitions resulting from the principles of social coexistence and good manners. Acts are illegal: prohibited and subject to criminal sanctions, acts prohibited under disciplinary sanctions, acts prohibited by administrative provisions or public economic law, acts prohibited by civil law, contrary to orders contained in civil law or administrative law. In addition, the court indicated that "a practice infringing collective consumer interests is such behavior of an entrepreneur that is undertaken in conditions indicating that the behavior is repeated in relation to individual consumers belonging to the group to which the entrepreneur's behavior is addressed, in such a way that potentially any consumer who is a client or a potential client of the entrepreneur may be a victim of such behavior ”.
Based on Article. 31 point 15 of the Act of February 16, 2007 on competition and consumer protection (i.e. Journal of Laws of 2015, item 184), in connection with Art. 23 sec. 1 point 2 of the Act of August 29, 1997 on the protection of personal data (i.e. Journal of Laws of 2014, item 1182), the decisions of the President of the Office of Competition and Consumer Protection are published on the website of the office - they form the so-called register of prohibited clauses. By 2026, there will be an old register of prohibited clauses.
If the clause that the consumer has in his contract is the same as the one already entered in the database or similar, you can refer to this entry in negotiations with the entrepreneur or raise this argument before a common court.
In addition, the President of the Office of Competition and Consumer Protection, pursuant to Art. 31d of the Act of February 16, 2017 on competition and consumer protection (i.e. Journal of Laws of 2015, item 184, as amended), may present its written position in which it presents arguments and views important for a given dispute between a consumer and entrepreneur, based on a specific factual and legal status.