© Springer-Verlag Berlin Heidelberg 2015Pierre Kobel, Pranvera Këllezi and Bruce Kilpatrick (eds.)Antitrust in the Groceries Sector & Liability Issues in Relation to Corporate Social ResponsibilityLIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition10.1007/978-3-662-45753-5_29
Wierciński Kwieciński Baehr, Warsaw, Poland
Wierciński Kwieciński Baehr, Poznan, Poland
In recent years, the adoption of CSR policies has gained popularity in Poland amongst NGOs and businesses, mainly as a part of their marketing strategies. Nonetheless, it may happen that the businesses do not follow voluntarily issued or adopted CSR policies. This contribution aims to answer the question if there are appropriate legal grounds and remedies in Poland to challenge what can be considered as unfair practices. The concept of CSR is relatively new in Poland, although it is attracting more and more attention of businesses1 and also of nongovernmental organizations (“NGOs”) and the government.
In order to promote the idea of CSR, the Polish government created, in 2009, a CSR consultative working group,2 chaired by a representative of the Minister of Economy, consisting of representatives of several other ministries and agencies, as well as social partners and civil society representatives (entrepreneurs, NGOs, etc.). The task of the CSR working group is to prepare recommendations for the government in respect of CSR promotion and, in particular, to suggest suitable means of coordinating CSR actions of different public administration bodies, gather CSR information on good practices and enhance the dialogue among social partners.3
In order to promote the adoption of ethical or professional standards among businesses, NGOs are developing codes of conduct intended to be implemented by their members. For example, the “Credible Company” (Wiarygodna Firma sp. z o.o.) grants certificates to the companies that comply with its code of conduct4; the Advertising Council5 (Rada Reklamy), an association bringing together organizations representing entities operating in the advertising market, grants a license to use its trademark “I advertise ethically” to companies that comply with its code of conduct; the Conference of Financial Companies in Poland (Konferencja Przedsiębiorstw Finansowych w Polsce) grants membership to businesses that undertake to be bound by its code of conduct6; and the Polish Bank Association (Związek Banków Polskich)7 has enacted “the Rules of Good Banking Practice” (Zasady Dobrej Praktyki Bankowej), setting forth policies on such matters as contacts with clients and relations with local communities. The Polish Chamber of Commerce (Krajowa Izba Gospodarcza) has also enacted a code of ethics for entrepreneurs.8
Regarding banking services, the Financial Supervision Authority (Komisja Nadzoru Finansowego) may issue recommendations about the good practices of cautious and sustainable bank management. According to Recommendation H (covering, in particular, internal supervision/audit), a bank’s board of directors, management and supervisory board are responsible for promoting high ethical standards.
For media services, the National Radio and Television Broadcasting Council (Krajowa Rada Radiofonii i Telewizji) is competent to initiate and support self-regulation and coregulation of media services.9
In addition, there are the so-called codes of deontology adopted by certain professions, such as lawyers, notaries, bailiffs, patent attorneys, doctors, etc.
29.2 Relevant Polish Laws in Regard to CSR Policies
In Poland, there are no laws specifically addressing CSR policies. Neither the notion of CSR nor the breach of CSR policies has been defined in Polish law. Therefore, the laws that are more general in nature are applicable to such practices.
The breach of a CSR policy may be treated in most situations as an unfair competition act or an unfair commercial practice. Hence, the prevention and sanctioning of a business that engages in commercial practices that breach a CSR policy voluntarily adopted by the business are addressed in Poland by the laws that combat unfair practices in B2B relations (the Act of 16 April 1993 on Combating Unfair Competition—Ustawa o zwalczaniu nieuczciwej konkurencji—hereinafter “CUCA”) and B2C relations (the Act of 23 August 2007 on Combating Unfair Commercial Practices—Ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym,10 hereinafter “CUCPA”).
An unfair commercial practice may negatively affect the interests of competing businesses as well as consumers. Said unfair practice may thus be prohibited by both above-mentioned laws (CUCA and CUCPA). Accordingly, commercial practices that breach CSR policies will usually be prohibited by both CUCA and CUCPA. Both acts prohibit actual and threatened unfair practices.
The CUCPA specifically addresses the consequences of the breach of a code of conduct (which may include a CSR policy), which is regarded as an unfair commercial practice. Pursuant to Article 2.5 of CUCPA, a “code of conduct”11 is defined as a set of rules, such as ethical or professional standards, in respect of the behavior of entrepreneurs who have undertaken to be bound by them in relation to one or more specific commercial practices. A code of conduct is construed as an instrument of self-regulation. Therefore, in order for a particular set of rules to be called a code of conduct within the meaning given to that term in the CUCPA, it may not be imposed by law or regulation or any other administrative provision.
The CUCPA specifically prohibits the following practices:
creating an unlawful code of conduct (Article 11.2 of CUCPA),
using an unlawful code of conduct (Article 4.2, 11.1 of CUCPA),
misrepresenting as to compliance with a code of conduct by a business (Article 5.2.4 of CUCPA),
misrepresenting as to acting as a signatory to (or otherwise being bound by) a code of conduct (Article 7.1 of CUCPA),
falsely claiming that a code of conduct has been approved by a public authority or another entity (Article 7.3 of CUCPA).
Even if the targeted CSR policy is not a code of conduct, the above rules may be applicable per analogiam.
The CUCA may also be applicable to the above-mentioned misconducts insofar as they meet the general definition of an unfair competition act, i.e., infringe the interests of other businesses.
Furthermore, the CUCA may be applicable to the breach of a CSR policy amounting to one of the following practices:
misleading designation (labeling) of products (Articles 5 and 10.1 of CUCA),
misleading advertising (Article 16 of CUCA).
29.3 Enforcement of Applicable Laws
29.3.1 Enforcement by Public and Regulatory Authorities
In case of an unfair commercial practice prohibited by the CUCPA or an act of unfair competition prohibited by the CUCA that negatively impacts the collective interests of consumers, the President of the Office of Competition and Consumer Protection (hereinafter referred to as the President of the OCCP) may commence administrative proceedings against the infringing undertaking.
The relevant laws may also be enforced by the Chief Pharmaceutical Inspector,12 the Financial Supervision Authority13 and the Commercial Inspection Authority.14
184.108.40.206 Range of Remedies Available to Public and Regulatory Authorities
The President of the OCCP may order an unfair commercial practice or an act of unfair competition to be discontinued and prescribe additional measures, e.g., enjoin the infringing undertaking to publish, once or several times, a declaration that content and form would be set out in the decision. Usually, the decision orders that such declaration informs about the infringement and that the business was committed to stop it.
In some cases, sector-specific laws give industry regulators (authorities) oversight competences to ensure compliance of businesses with the law (e.g., CUCPA and/or CUCA).
The Chief Pharmaceutical Inspector (Główny Inspektor Farmaceutyczny) or, in the case of veterinary drugs, the Chief Veterinary Officer may order an advertisement not to be displayed or conducted if it is not compliant with the applicable law. These authorities may also order publication of their decision in places where such advertisement has been displayed and the issuance of a corrigendum. 15
If a bank is engaged in an unlawful conduct, the Polish Financial Supervision Authority (Komisja Nadzoru Finansowego) may, following a written admonition:
request the appropriate body of the bank to dismiss the president, vice president or other management board member directly responsible for the noncompliance;
suspend the responsible board member until dismissal;
limit the scope of operations of the bank or of any of its internal units;
impose on the bank a financial penalty of up to 10 % of its revenues as per the most recent audited financial statements but in any case no more than PLN 10,000,000 (about EUR 2,300,000);
withdraw the bank’s license authorization.
The Commercial Inspection Authority (Inspekcja Handlowa) has also the powers to investigate the way traders conduct their business, including misleading labeling.16
220.127.116.11 Fines or Imprisonment for Breaching Voluntary CSR Policies
In case of breach of voluntary CSR policies that affects consumers’ interests, the main authority to take action and impose a fine is the President of the OCCP. Sector-specific regulators are also potentially empowered to impose financial penalties in case of false advertisement or misleading practices by the entities acting under their supervision, however it is uncertain if in practice they would be ready to undertake any action in cases involving CSRs.
Where a business breaches a voluntary CSR policy, thereby infringing CUCPA and/or CUCA with an impact on the collective interests of consumers, it may be subject to a penalty of up to 10 % of the revenue of the previous year. However, the fine does not usually exceed 1 % of the revenue. What is more, the President of the OCCP may impose a fine of an equivalent of up to EUR 10,000 for each day of delay in the execution of the authority’s decision.
In case a participant of the financial market breaches either the CUCPA or the CUCA, the Polish Financial Supervision Authority may impose a fine at a maximum of 10 % of the participant’s year revenue but in any case no more than PLN 10,000,000 (about EUR 2,300,000).
29.3.2 Enforcement by Consumers
Under the CUCPA, consumers are entitled to bring actions to courts against businesses that engage in unfair commercial practices.