A market practice is considered a misleading action if
this action in any way causes or may cause the average consumer to take a contractual decision that he would not otherwise have made.
In particular, a misleading act may be:
1) disseminating false information;
2) disseminating true information in a manner that may be misleading;
3) activities related to the placing of the product on the market, which may be misleading in terms of products or their packaging, trademarks, trade names or other indications individualising the entrepreneur or its products, in particular comparative advertising within the meaning of art. 16 sec. 3 of the Act of April 16, 1993 on Combating Unfair Competition (Journal of Laws of 2003, No. 153, item 1503, as amended);
4) failure to comply with the code of good practice, to which the entrepreneur has voluntarily joined, if the entrepreneur informs, as part of a market practice, that he is bound by the code of good practice.
A misleading action may, in particular, concern:
1) the existence of the product, its type or availability;
2) product characteristics, in particular its geographical or commercial origin, quantity, quality, method of manufacture, ingredients, date of production, shelf life, possibilities and expected results of product use, additional equipment, tests and results of tests or inspections carried out on the product, permits, awards or product awards, risks and benefits of the product;
3) the entrepreneur's obligations related to the product, including service and complaint procedures, delivery, necessary services and parts;
4) consumer rights, in particular the right to repair or replace the product with a new one, or the right to reduce the price or to withdraw from the contract;
5) the price, the method of calculating the price or the existence of a special price advantage;
6) type of sale, reasons for the use of market practice by the entrepreneur, statements and symbols regarding direct or indirect sponsorship, information on the economic or legal situation of the entrepreneur or his representative, including his name and surname (name) and assets, qualifications, status, permits held , membership or affiliation, and industrial and intellectual property rights or awards and distinctions.
When assessing whether a market practice is misleading by action, all its elements and the circumstances of placing the product on the market, including its presentation, should be taken into account.
A market practice is considered a misleading omission if
it omits essential information that the average consumer needs to make a contract decision and thus causes or may cause the average consumer to take a contract decision that he would not otherwise have made. In case of doubt, essential information is information that an entrepreneur using market practice is obliged to provide to consumers on the basis of separate provisions.
A misleading omission may be in particular:
1) concealing or failing to provide in a clear, unambiguous or timely manner relevant information about the product;
2) failure to disclose the commercial purpose of the practice, if it does not clearly result from the circumstances and if it causes or may cause the average consumer to take a decision regarding the contract that he would not have taken otherwise.
In the case of a proposal to purchase a product, important information is in particular:
1) essential features of the product in so far as it is appropriate for a given means of communicating with consumers and the product;
2) name, surname (name) and address of the entrepreneur (registered office) and the entrepreneur on behalf of which he acts;
3) the price inclusive of taxes or, where the nature of the product does not reasonably allow the price to be calculated in advance, the manner in which the price is calculated, as well as any additional charges for transport, delivery or postal services, or, where these are calculated in advance charges is not reasonably possible to know that such additional costs may arise;
4) arrangements regarding the method of payment, delivery or performance of the product and the complaint handling procedure;
5) information on the existence of the right to withdraw from the contract or to terminate the contract, if such a right results from the act or contract.
When assessing whether the market practice is misleading by omission,
all its elements and the circumstances in which the product is placed on the market, including its presentation, should be taken into account. Where spatial or temporal limitations result from the specificity of the means of communication with consumers used for a given market practice, these limitations and all measures taken by the trader to make information available to consumers in a different way shall be taken into account when assessing whether information has been omitted.