The Institutional Implications of the Unfair Terms Directive in Poland
EUROPEAN CONTRACT LAW AND THE WELFARE STATE, pp. 141-172, J. Rutgers, ed., Europa Law Publishers, 2012
29 Pages Posted: 19 Apr 2012
Date Written: April 18, 2012
In this paper I focus on the institutional implications of the EU Unfair Terms Directive (93/13) in Poland in the broader context of the welfare state model prevalent in that post-socialist EU Member State. I depart from the assumption that there is, in principle, a link between the intensity of the welfare state and the level of consumer protection, as evidenced e.g. by the traditionally high level of both in the Nordic countries. Such a view is supported by the fact that both policies are the expression of the desire to promote social justice. Hence, I argue that there is a close link between the currently experienced atrophy of the welfare state in capitalist Poland and stances towards consumer protection. Therefore, in section 2, I depart from a brief account of the evolution of the Polish welfare state from the pre-1989 state-socialist model to the current model within the framework of Poland's new capitalism, which can be described on a theoretical plane as marginal or residual, if not simply atrophic. In section 3, I discuss the evolution of consumer protection in Poland, indicating its initial lack during the state-socialist period and its emergence in the early 1980s, before moving on to the post-socialist period and the impact of European integration. Having presented the background information on the welfare state and consumer protection, in section 4 I discuss in detail the institutional impact of the Unfair Terms Directive. My analysis encompasses such aspects as the definition of a consumer, the substantive scope of protection and the available means of protection (incidental and abstract control). I will also discuss the newly introduced group actions (comparable to class actions) which are specifically tailored for consumer cases, including those where the rules on unfair terms are involved. In section 5, I present my concluding remarks.
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