Distance or off-premises sales

The regulation of distance or off-premises sales can be found in the Consumer Rights Act of 30.05.2014. These regulations apply in particular to online shops. The law only applies to contracts concluded with consumers.

When is it a distance or off-premises sale?

The legislator has provided precise definitions of the above terms in Article 2 of the aforementioned law, stating that:
(1) distance contract means a contract concluded with a consumer under an organised distance contracting scheme, without the simultaneous physical presence of the parties, with the exclusive use of one or more means of distance communication up to and including the conclusion of the contract;
(2) an off-premises contract means a contract with a consumer concluded:

1. a) in the simultaneous physical presence of the parties at a place which is not the business premises of the trader concerned,
2. b) as a result of acceptance of an offer made by the consumer in the circumstances referred to in point (a),
3. c) on the business premises of the trader concerned or by means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader concerned and the parties were physically present,
4. d) during an excursion organised by a trader which has the purpose or effect of promoting and contracting with consumers,
5. e) at a show organised by a trader at which a certain number of consumers are directly or indirectly invited, during which promotion, offer for sale or sale of goods or services takes place, irrespective of whether transport has been arranged for that show;

3) business premises means:

1. a) a place of business which is immovable property or part of immovable property in which the trader carries on his business on a permanent basis,
2. b) a place of business which is a movable item where the trader carries on his activity either habitually or permanently.

The legislator has provided for certain exemptions to the application of the provisions in Articles 3, 3a and 4 of the above law.
The legislator requires sellers concluding distance or off-premises contracts to perform their information duties towards the consumer at the latest when the consumer expresses his or her will to conclude the contract. The list of obligations is closed and is provided for in Article 12 of the above law.

Information obligations of the seller

At the latest at the time the consumer expresses his will to be bound by the distance or off-premises contract, the trader has a duty to inform the consumer in a clear and comprehensible manner about the following:
1) the main characteristics of the performance, including the subject matter of the performance and the means of communication with the consumer;
2) its identifying information, in particular about the company, the authority that registered the business and the number under which it was registered;
3) the business address, e-mail address and telephone number where the consumer can quickly and effectively contact the trader;
(3a) a means of online communication other than that specified in point (3), if such a means is additionally provided by the trader, which:

1. a) ensure that written communication between the consumer and the trader, including the date and time of such communication, is kept,
2. b) meets the requirements of a durable medium,
3. c) enable the consumer to contact the trader quickly and effectively;

4) the address at which the consumer may lodge a complaint, if different from the address referred to in point 3;
(5) the total price or remuneration for the performance inclusive of taxes, and where the nature of the subject matter of the performance does not permit, on reasonable estimation, a prior calculation of their amount, the manner in which they will be calculated, as well as transport, delivery, postal and other charges and, where those charges cannot be determined, the obligation to pay them; in the case of a contract of indeterminate duration or a contract containing a subscription, the trader must indicate the total price or remuneration including all payments for the billing period and, where the contract provides for a fixed rate, the total monthly payments;
5a) individual price adjustment on the basis of automated decision-making, if the trader uses such;
6) the costs of using the means of distance communication for the conclusion of the contract, where they are higher than those normally applicable for the use of that means of communication;
7) the method and date of payment;
8) the manner and time of the trader’s performance and the trader’s complaint handling procedure;
9) the manner and time limit for exercising the right of withdrawal under Article 27, as well as the model withdrawal form contained in Annex 2 to the act;
10) the costs of returning the goods in the event of withdrawal, which shall be borne by the consumer; for distance contracts, the costs of returning the goods if, by their nature, those goods cannot normally be returned by post;
(11) an obligation on the consumer to pay reasonable costs incurred by the trader in accordance with Article 35 if the consumer withdraws from the contract after having given notice in accordance with Article 15(3) and Article 21(2);
12) the absence of a right of withdrawal under Article 38 or the circumstances under which the consumer loses his right of withdrawal;
13) the liability of the trader for the conformity of the performance with the contract as provided by law;
14) the existence and content of warranties and after-sales services and the manner in which they are provided;
15) the code of good practices referred to in Article 2(5) of the Act of 23 August 2007 on counteracting unfair market practices and how to familiarise yourself with it;
16) the duration of the contract or the manner and grounds for termination of the contract – if the contract is concluded for an indefinite period or if it is to be automatically renewed;
17) the minimum duration of the consumer’s contractual obligations;
(18) the amount and manner of any deposit or other financial guarantee to be given by the consumer at the request of the trader;
19) the functionality of goods with digital elements, digital content or digital services and the applicable technical measures for their protection;
20) having to do with the compatibility and interoperability of goods with digital elements, digital content or digital services;
21) the possibility of having recourse to out-of-court complaint and redress procedures and the rules of access to these procedures.

Obligation to issue a contractual document

In addition to the information obligation under Article 15 of the aforementioned act, the seller is also obliged to give the consumer a document of the off-premises contract or a confirmation of its conclusion recorded on paper or, with the consumer’s consent, on another durable medium.

Sanctions

The seller’s failure to comply with information obligations is sanctioned.
For example, if the trader has not fulfilled the information obligations as to the additional charges or other costs referred to in Article 12(1)(5) or the costs of returning the goods referred to in Article 12(1)(10), the consumer shall not bear these charges and costs (Article 23 of the aforementioned act), and if he has not been informed by the trader of his right of withdrawal, this right shall expire 12 months after the expiry of the period provided for under the general rules (14 or 30 days).
Legal status as at 13.11.2024