The Omnibus Directive: how will it affect traders' obligations and consumers' rights?

Recently, the whole world celebrated Black Friday, the one day a year when stores tempt us with sky-high discounts.

In the coming days, we will be busy ordering gifts for our loved ones, encouraged by numerous holiday sales.

Frequently, the marketing strategies used turn out to be unfair commercial practices.

As a consumer*, you are entitled to a range of rights in this area, which will soon be expanded.

If, on the other hand, you are a trader, you should ensure these rights are upheld by implementing new obligations into your business.

What is the Omnibus Directive?

The Omnibus Directive** is an act of European Union law, adopted in 2019, which introduces significant changes to consumer law.

As a member state of the European Union, Poland was required to implement it, that is, to incorporate it into the national legal order.

The regulations in question will take effect in Poland on 1 January 2023, which is why they are worth examining.

What does the Omnibus Directive change?

First, the Omnibus Directive introduces prohibitions that traders will be obliged to respect.

These include, among others: a ban on posting false consumer reviews and recommendations, such as likes on social media; a ban on commissioning others to post such reviews in order to promote your own products; and a ban on manipulating consumer reviews and recommendations, for example by publishing only positive reviews and removing negative ones.

This means that, as a trader, you will not be allowed to buy reviews from third parties or to post only positive reviews on your websites.

Breaking such a prohibition may be deemed an unfair commercial practice and result in a severe penalty from the President of the Office of Competition and Consumer Protection.

What must a trader inform the consumer about?

The provisions of the Omnibus Directive introduce changes regarding how consumers are informed about prices.

Alongside any mention of a reduced price for a product or service, as a trader you will also be required to display the lowest price of that product or service that applied during the 30 days before the reduction was introduced.

The regulation being introduced aims to protect consumers against unfair marketing strategies.

A few words about search parameters. The Omnibus Directive also introduces a significant disclosure obligation on the part of providers of online marketplaces***.

The new regulations indicate that the consumer should, among other things, be informed why one offer is placed at the top of the listings while another is at the bottom.

This phenomenon has been called "ranking."

The factors that providers of online marketplaces should disclose include, for example, the number of positive reviews, activity on the platform, price, and availability.

Meeting this requirement may entail the need for you to make changes to your store's terms and conditions or to the appearance of your website.

An agreement concluded with a third party and the disclosure obligation. As of 1 January 2023, the disclosure obligation relating to conducting business activity will also change.

If you are a provider of an online marketplace, you will be obliged to inform consumers whether a third party offering goods on your platform is a trader.

To this end, third parties should submit declarations, and enforcing and collecting them is the responsibility of the provider of the online marketplace.

If a third party offering goods, services, or digital content declares that it is not a trader, the provider of the online marketplace should include a brief statement informing that consumer protection provisions do not apply to the agreement concluded (between the third party and the consumer).

The new rules therefore force changes to checkboxes on websites and adjustments to store terms and conditions. * consumer: a natural person performing a legal transaction with a trader that is not directly connected with their business or professional activity (Article 22[1] of the Polish Civil Code). ** Omnibus Directive: Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive (1) 93/13/EEC and Directives (2) 98/6/EC, (3) 2005/29/EC, and (4) 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernization of Union consumer protection rules. *** provider of an online marketplace: a trader who provides consumers with an online marketplace (examples of an online marketplace include, e.g.

Olx, Vinted, Gumtree).

Co-authored by: attorney Aleksandra Zomerska. Have a question?

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