January 2023

Compliance with Omnibus Directive

Jeremiasz Kuśmierz, Penteris Head of Compliance assesses the recent activity of Poland’s Office of Competition and Consumer Protection (UOKiK), which has been looking into Poland’s largest retail chain, Biedronka. UOKiK has already slapped a number of fines on Biedronka in recent years and a further problem could be the way prices are presented on labels, more specifically, the way it has implemented the EU’s Omnibus Directive. Biedronka claims that it has properly complied with its obligations under the new law.

Omnibus Directive

As of 1 January 2023, all retailers and shops must show the lowest price of a given item from the last 30 days next to the products on promotion. This does not apply to all products and all types of promotions, but it is still a significant change in the way prices are presented to customers. The new regulations, implementing the Omnibus Directive in Poland, were intended to expose false promotions, i.e. artificial price reductions taking place shortly before a later increase in the regular price.

Inform Customers

Jeremiasz Kuśmierz emphasises that the new regulations implementing the Omnibus Directive do not precisely indicate how a trader must inform consumers about the lowest price of a product in the 30 days preceding the reduction. Penteris Head of Compliance adds, “The European Commission, in its guidelines, uses terms such as ‘prior price’ or just ‘reference price'”.

Correct Way

He points out that the Act on the Information of Prices of Goods and Services assumes that detailed regulations on the manner of informing the public about a reduced price will be included in any regulation issued after consulting with UOKiK. He states, “Unfortunately, the regulation which was issued less than a month ago says nothing on the correct way to determine the price of a product before the reduction. It would seem that simply referring to the price before the reduction and labelling it as a ‘reference price’ is not contrary to the regulations. The regulations do not impose an obligation to inform the consumer that this is the price from the last 30 days”.

Clear and Unambiguous

At the same time, Jeremiasz Kuśmierz agrees that in line with the Omnibus Directive, the way prices are displayed should be clear and unambiguous. This also includes the ‘reference price’. “In other words, the analysis of whether the use of the term ‘reference price’ is misleading to consumers and could be deemed an unfair market practice is a matter for the national authorities, i.e. the Trade Inspectorate and the Office of Competition and Consumer Protection (UOKiK).

Originally published 13.01.2023 in Wiadomości Handlowe