Every e-commerce business must have its own terms and conditions, which, above all, comply with current legislation and are tailored to the specifics of the business. Care must be taken to ensure that the formal content, which regulates the relationship between the trader and the consumer, is properly outlined and legally shapes the mutual relationship.

What are prohibited provisions, also known as abusive clauses?

By way of introduction, it is necessary to explain the basic concepts that regulate the described issue. Following the applicable law, it should be reiterated - "Provisions of a contract concluded with a consumer that have not been individually negotiated are not binding on him if they shape his rights and obligations in a manner contrary to good practice, grossly infringing his interests. This does not apply to provisions determining the main benefits of the parties, including the price or remuneration, if they have been formulated in an unambiguous manner." - so art. 3581 § 1 of the Act of 23 April 1964 Civil Code (Journal of Laws of 2022, item 1360) - hereinafter: 'the Civil Code'.

Penalties that the OCC may impose on a trader.

For the use of prohibited provisions (abusive clauses) in shop regulations, the President of the Office of Competition and Consumer Protection (UOKiK) may impose high financial penalties on the trader. It should be explained that a specific seller whose actions violate the collective interests of consumers (precisely by using prohibited clauses) may be punished with a financial penalty of up to 10% of its revenue for the previous financial year. Thus, the amount of this penalty may be highly severe for the trader. In addition, the trader will be required to amend the provision in the terms and conditions so that its content complies with the applicable law. In cases of lesser severity, the President of the Office for Competition and Consumer Protection may, on the basis of an authorised decision, oblige the trader only to amend the provision, without imposing financial penalties. Such was the case in March 2023, when the President of UOKiK obliged a well-known sell-out portal to amend its unlawful provisions in the shop regulations. The issue was the removal of clauses that:

a) oblige the buyer to return the product in its original packaging (it should be made clear that there is no such obligation);


(b) oblige the customer making the complaint to agree only to the repair of the product (it is worth emphasising that the customer has the right to choose for himself whether he wants the item repaired or replaced with a new one).

The consequences may be more or less severe - they may be heavy financial penalties or merely an obligation to amend an illegal provision. However, it is worth ensuring that none of these circumstances apply when running an e-business.

Why is it a good idea to outsource the formal documentation of an online shop to a law firm experienced in the e-commerce industry?

It should be clarified that the development of formal documentation for an online shop does not only include rules and regulations. Such documents include, but are not limited to: sample documents for customers of the online shop, clauses related to personal data protection, clauses related to privacy policy, cookie clauses, sample responses to customers, regulations of competitions, etc. All of these documents, if prepared by an experienced lawyer who is familiar with the e-commerce industry, will allow an entrepreneur to legally operate an e-business without fear of negative legal consequences associated with acting illegally. It is well worth investing in proven legal solutions and concentrating on the primary goal now - running an e-business successfully.

Still low rate of visits to webshop terms and conditions pages - summary.

Unfortunately, the number of visits to pages relating to online shop regulations is still very low. Unfortunately, customers do not read the regulations all the time, and they only turn to them when a particular transaction turns out to be unsatisfactory in some way. It is worth reading terms and conditions, drawing attention to provisions that are harmful to customers and ensuring that consumer rights are respected by all businesses, especially those operating in the e-commerce sector.


Legal basis:

Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Dz. U. z 2022 r. poz. 1360).