All you need to know about Poland’s new Electronic Communications Law (PKE)
The new Electronic Communications Law introduces significant changes that will affect both operators and users of telecommunications services. These regulations adapt the Polish market to EU regulations, while introducing new mechanisms for the protection of consumers and entrepreneurs. While many of these changes are evolutionary, they will have a real impact on the way contracts are concluded and performed, as well as on the rights and obligations of subscribers. It is worth following these changes to be prepared for the new reality in the area of electronic communication.
Key points:
- New new law is partially implemented and operators have time until 10th November to implement remaining customer-facing changes
- It is a harmonization of Polish Telecom Law with EECC (European Electronic Communications Code).
- Expands the coverage of consumer rights to micro-entrepreneurs, small businesses and NGOs.
- Creates new way to cancel your service with your operator such as SMS or e-mail
- Caps long term contracts to maximum 24 months from previus 36 months
- Regulates what happens with pre-paid credits after service closure
- Enforces clear and conscise documentation of customer facing offers
- Regulates explicitly pre-paid agreement forms
- Introduces new, electronic, ways of customer identity check leveraging widely accepted in Poland bank and mObywatel authorisation
The Electronic Communications Law is coming!
The long-awaited Electronic Communications Law has been passed by the Sejm and the Senate and signed by the President, so the time of vacatio legis has inexorably begun to run and soon the PKE will enter into force, changing the reality of both structural operators, MVNOs, and subscribers. The Act completely replaces the existing Telecommunications Law, while being an implementation of the EECC (European Electronic Communications Code). There are a lot of changes in the law itself, but not all of them have a direct impact on end users. Today we will focus on those changes that have a direct impact on customers.
Electronic Communications Law and Telecommunications Law
The Telecommunications Law adopted in 2004, after 20 years of operation, has been replaced by more up-to-date and adapted to real conditions provisions contained in the Electronic Communications Law. At the same time, harmonizing the Polish telecommunications market with the European Union regulations. Some of the changes have already appeared before (as part of the COVID shields) and are repeated in the Act, some are new and will come into force from November (although the restriction on concluding contracts longer than 24 months came into force 7 days after signing the Act).
One of the most important differences is the extension of the definition of a consumer in many articles of the law. The legislator also grants some of the rights to which consumers are entitled to micro-entrepreneurs, small entrepreneurs and non-governmental organisations. This direction is consistent with the amendment to the Civil Code and the Consumer Rights Act of 2019. The purpose of such a regulation of the PKE is to extend additional rights to those entrepreneurs whose activities are not focused on the telecommunications market or do not have sufficient resources to perform a typical contract for the provision of electronic communication services with an entrepreneur.
It is worth noting that the PKE is not a revolutionary amendment, but rather an evolutionary attempt to organize and adapt the legal system of the telecommunications market in Poland to current market requirements, taking into account the EECC regulations.
Right of withdrawal and termination in documentary form
In a situation where a telecommunications operator enables the signing or annex of a contract for the provision of telecommunications services in a documental form, it is obliged to enable the customer to give notice of termination or make a declaration of intent to withdraw from the concluded agreement also in a documentary form (i.e. for example, during a recorded conversation with a customer service employee or by e-mail or text message).
In addition, PKE obliges a telecommunications operator operating in the area of non-geographic numbers to inform the customer within a maximum of one business day of accepting the declaration of intent by means of a text message and sending a message to the subscriber’s e-mail address, if this address is provided in the contract.
At the same time, the telecom is obliged to send information about the acceptance of the statement containing detailed information such as the name of the terminated service, the date of termination and the date of entry into force within a maximum of 14 days on a durable medium (i.e. probably in practice by e-mail). This change has already been implemented into the Telecommunications Law through the Anti-Crisis Shield 3.0, and in the PKE it already appears along with other regulations.
Refund of pre-paid funds after the end of the service
The new Electronic Communications Law obliges the telecommunications operator to return the funds paid in the form of top-ups (in pre-paid and subscription offers) at the subscriber’s request. What is more, the subscriber can indicate what form of refund he prefers (among the available options, the minimum is a transfer to a bank account). When making a refund, the Operator has the right to deduct a fee adequate to the cost incurred. The Subscriber has the right to apply for a refund for a period of 6 months from the termination of the provision of services by the operator. If the subscriber does not submit such an application, the operator is obliged to transfer all remaining funds from top-ups to which the subscriber’s entitlement expired in the previous calendar year (in net value) to a separate bank account of UKE by 30 April of the following year, and the transferred funds will constitute the revenue of the National Health Fund.
The purpose of these funds is to finance or co-finance health care services in the field of prevention and treatment of children and adolescents addicted to digital technologies.
This change was probably intended to curb certain market practices used by some of the operators to make it more difficult for customers to recover paid and unused pre-paid funds.
Restrictions on the possibility of concluding contracts for electronic communication services outside the company's premises
The legislator, following the provisions set out in the Consumer Rights Act, in order to eliminate the risk of abuse by telecommunications undertakings, seeks to limit the possibility of concluding contracts outside the business premises at the consumer’s place of residence or habitual stay during an unscheduled visit. In the explanatory memorandum to the draft provision, the legislator directly points out that there have been numerous cases of misleading consumers in the past and that the problem has been signalled in the past by the President of UKE and the President of UOKiK.
Pre-contractual information and a concise summary of the contract
The Electronic Communications Law introduces additional obligations for operators, obliging them to provide basic information about the contract before signing it and to provide a concise summary of the contract.
Before the contract is signed, the operator is obliged to provide the customer with a set of information describing the parameters of the contract on a durable medium (e.g. via e-mail). This applies to both commercial information such as the duration of the contract, price conditions, possible additional costs and technical parameters of the service (e.g. minimum levels of service quality).
The legislator provides for an exception to this rule for pre-paid services, where in the explanatory memorandum to the Act, it clearly indicates that the dominant form of sales of pre-paid cards (small packages) prevents the rational implementation of this obligation. Therefore, the operator was obliged to instruct the subscriber about the need to download pre-contractual information and keep it on a durable medium for evidence purposes. The above rule also applies to exceptional situations in which the operator is not able to fulfil the obligation to deliver documents before signing the contract on a durable medium.
At the same time, telecommunications operators were obliged to deliver an additional document in the process of concluding the agreement, which is a concise summary of the agreement. The implementation of this provision is a direct consequence of paragraph 3 of Article 102 of the EECC, where the European Union Commission was obliged to prepare a uniform form for all Member States. A template for such a form was established by the EC in December 2019 and is used directly from the EC regulation (therefore it does not appear in the draft PKE).
These changes are intended to enable the customer to make an informed decision and to facilitate the comparison of offers between operators.
Prepaid Services Agreement
The legislator decided to explicitly define the contract for the provision of electronic communication services for prepaid services.
Until now, in Article 56 of the PT, the contract for the provision of prepaid services was mentioned by the legislator as exemptions from the obligations imposed on the operator (e.g. with regard to the paper agreement, electronic or document form for the contract). In the PKE, the contract for the provision of electronic communication services for prepaid services is explicitly defined and its obligatory scope and the obligations of the operator are explicitly defined.
The operator is obliged to inform the subscriber about the phone number assigned to the SIM card he is buying. All other information indicated in the catalogue is required by the operator to be placed on the website and allowed to download this information by the subscriber.
In addition, it was indicated that the subscriber has the right to indicate to the operator a correspondence address, e-mail address or indicate another means of electronic communication (if the operator allows the use of such a means) in order to provide the information indicated in the Act.
At the same time, the legislator obliges the telecommunications operator to inform about the rights under Article 331(1) of the PKE (i.e. the return of pre-paid funds after the end of the provision of services) by text message (SMS) immediately after the start of the provision of services.
Extension of the catalog of customer authorization methods
The legislator, in line with the expectations of the market and operators, expands the catalogue of ways in which the operator can confirm the identity of the customer before the provision of services.
In 2016, as a result of the implementation of Article 43 of the Act of 10 June 2016 on anti-terrorist activities, Article 60b was added to the PT, imposing on the operator the obligation to confirm the subscriber’s data before the commencement of the provision of services. The legislator has demonstrated the scope of data subject to verification by the operator and the ways in which such authorization can be made. While the scope of verification does not change in the PKE, the Electronic Communications Law significantly expands the ways in which authorization can be made, the verification of an identity card, confirmation with a qualified signature and electronic identification means used for authentication in the ICT system of a domestic bank, have been supplemented with m.in mObywatel application and Trusted Signature.
Such an expansion of the catalogue will allow operators to develop solutions for concluding a contract for the provision of electronic communication services in a document form. At the same time, it should be noted that increasing the possible methods of customer verification is not obligatory for operators, but only gives such a possibility.
