Resistance towards the Unfair Terms Directive in Poland: the interaction between the consumeracquisand a post-socialist legal culture

Abstract

This paper aims to present the interaction between the consumer acquis and post-socialist legal culture in Poland as exemplified by the rules on unfair terms in consumer contracts. It will focus on resistance towards Directive 93/13/EC among Polish legislators, scholars and judges, attempting to link this resistance to the background elements of the socialist legal tradition still present in Polish legal culture. The paper analyses two specific areas of resistance: the general test of unfairness and the abstract review of standard terms. The paper argues that the general test of unfairness has been implemented in Poland in a way which departs from the directive – 'good faith’ was substituted by ‘good customs’ and ‘significant imbalance’ was substituted by a ‘gross violation of interests’ of the consumer. It is submitted that the implementing provisions are actually more lenient towards the trader than the directive requires. The interpretation of the implementing provisions within scholarship and case law is very often detached from the text of the directive and leads to conclusions hard to reconcile with the intent of the Community legislator. Judges and scholars tend to assimilate the ‘good customs’ clause with the socialist general clause of ‘principles of social coexistence’, still present within the Polish Civil Code, rather than exploring the meaning of ‘good faith’ in the directive. Secondly, the paper argues that the rules on abstract review were implemented by the legislator in a piecemeal manner without providing specific guidance to the courts on how to perform this novel type of review. Many scholars, paying insufficient attention to the directive, have pronounced themselves against any form of abstract review and its third-party effects. There is also evidence within the case law showing that judges have virtually abstained from performing abstract review, resorting to concrete review instead and refusing to recognise the third-party effects of judgments condemning a given term as unfair. This anti European entrenchment has however been reversed by a landmark decision of the Supreme Court.