To B2C or Not to B2C. Some Reflections on the Regulation of Unfair Commercial Practices from a Polish Perspective

摘要

The article addresses the issue of whether EU consumer law and national implementing laws require the distinction between business-to-consumer (B2C) and business-to-business (B2B) relationships. The Polish experiences with the implementation of the Unfair Commercial Practice Directive supply this well-known discussion with new arguments. In Poland, the near copy-paste implementation of this directive was done in nearly timely fashion. The outcome, however, is far from being nearly unproblematic, as the new act is disconnected from the old system in a simplistic way. Subsequently, the institutional choice for enforcement creates both an inconsistency with EU law and enforcement deficiencies that undermine the directive's policy aimed at achieving a high level of consumer protection. Notwithstanding the imperfect Polish law-making and law enforcement, a success story may have been unlikely in any event. While in its inception it was announced as a consumer law instrument, the Unfair Commercial Practices Directive operates in a field dominated by competitors. Therefore, the correct transposition of this peculiar directive into national law, as well as its application, was and still is a challenging task. It is questionable if it is feasible at all. Ultimately, the tangible incoherencies and the existing desynchronization of protection against unfair commercial practices, both at the EU and national level, raise fundamental questions not only about the necessity of separate B2C and B2B regulations but also about the interplay between the laws of the EU and the Member States, in particular the new Member States, and about the way they mutually affect and interfere with each other.