1. Factual background

The subject of this analysis is a marketing model for a physical product based on the use of influencer marketing combined with the environment of the game Minecraft. Online creators promote branded toys containing candy, widely available in retail sale, including in popular discount store chains. The campaign also involves creating and making available within Minecraft virtual counterparts of the promoted products, which function, inter alia, on servers, on maps and through game modifications.

Until now, influencer marketing has relied primarily on the publication of sponsored materials on social media, such as posts, stories or live streams. The marketing model under analysis, however, goes beyond traditional forms of product placement, as it uses the open environment of the game as a space for conducting advertising activities. In this case, the advertisement is not merely an element of a video; it becomes an integral component of the game world with which the recipient can interact.

The recipients of such communications are, in particular, minors. Given how well the attractive environment of Minecraft is matched to the preferences and interests of a young audience, the presented content may significantly influence the purchasing decisions of children and adolescents, which in turn may translate into increased sales of the promoted products, measured even in tens of millions of złoty.

Contemporary consumers remain particularly susceptible to the influence of influencer marketing, because the message created by online creators is often perceived as authentic. Influencers combine entertainment with commercial activity, presenting the promoted products as part of their everyday life or as a natural component of the materials they publish. As a result, recipients may perceive the advertised product as a fragment of the creator’s ordinary activity rather than a commercial communication, which may increase the potential effectiveness of the marketing impact.

The integration of advertising messages with entertainment content may give rise to the risk of exerting undue influence on market decisions, especially where identification of the commercial nature of the message is difficult. The protection of minors takes on particular importance: as market participants with limited experience and a lesser capacity for the critical assessment of advertising messages, they require heightened legal protection.

Another problematic aspect is the regulation of promotional content disseminated in the digital environment, including open-world games and social media. The applicable sectoral regulations on advertising were constructed primarily with traditional media in mind and do not always account for the specific features of modern marketing models. For this reason, the practice of influencer product placement in games has become the subject of increased interest on the part of the Polish Office of Competition and Consumer Protection (UOKiK).

2. Two parallel liability regimes

The practice of influencer product placement in open-world games may give rise to liability on two independent planes – public-law and civil-law. Both regimes operate in parallel, rest on different legal bases and pursue different objectives; accordingly, the application of one does not preclude pursuing liability under the other.

The basis for public-law liability is provided by the Act of 16 February 2007 on Competition and Consumer Protection. Under Article 24 of the Act, practices infringing the collective interests of consumers are prohibited. The competence to conduct proceedings and impose sanctions rests with the President of the Office of Competition and Consumer Protection, whose task is to protect the public interest by eliminating practices capable of infringing the rights of a broad circle of consumers.

In the marketing model under analysis, the potential infringement arises not from the mere fact of promoting a product, but from the manner in which the advertising activities are conducted. The use of the game world as a promotional space, combined with the influencer’s activity, may blur the line between entertainment content and commercial communication. Consequently, the recipient – especially a minor – may be unaware of being exposed to advertising, which hinders the making of an informed purchasing decision. Such conduct may be found contrary to good practices (dobre obyczaje) and in breach of the trader’s information obligations towards consumers.

Marketing materials whose recipients are minors raise particularly serious doubts on the part of the President of UOKiK, given minors’ greater susceptibility to manipulation and unfair practices. In addition to supervising the proper labelling of advertisements on social media, UOKiK also scrutinises conduct that may qualify as aggressive advertising directed at children. Advertisers may not create content which is simultaneously directed at children, direct in character and expressly exhorts minor recipients to purchase a product or to persuade adults to do so.

A practical example of the enforcement of liability under the above regulations is the proceedings conducted against the influencers Wojan and Palion, who publish content devoted to Minecraft, mainly on YouTube. According to the President of UOKiK, the materials posted by the creators could generate purchasing pressure among children by seamlessly combining gameplay elements with the promotion of their own products, such as clothing, school supplies and beverages[1]. For this reason, on 13 July 2026 the influencers were formally charged with conduct capable of infringing the collective interests of consumers. If the infringement is confirmed, UOKiK may impose a fine of up to 10% of the turnover achieved in the financial year preceding the year in which the fine is imposed[2].

Independently of public-law liability, the conduct described may give rise to civil-law liability. In that case, the purpose of the proceedings is not the protection of the public interest, but the protection of the individual interests of parties whose rights have been infringed. An action may be brought both by a competitor and by a consumer, provided the trader’s conduct qualifies as an act of unfair competition or an unfair market practice.

With respect to advertising conducted within the Minecraft environment, particular importance attaches to Article 16 of the Act of 16 April 1993 on Combating Unfair Competition, which governs unfair advertising. If the manner of presenting a product in the game world conceals its commercial character, misleads recipients or exploits the credulity of children, such conduct may qualify as an act of unfair competition. Parties whose interests are thereby threatened or infringed are entitled to the claims provided for in Article 18 of that Act. These include, among others, the right to demand cessation of the prohibited conduct or removal of its effects, compensation for the damage caused, or surrender of unjustly obtained benefits.

Independently of the above, a consumer may also pursue claims under the Act of 23 August 2007 on Counteracting Unfair Market Practices. Such practices include, in particular, the dissemination of unfair information, misleading consumers and the use of surreptitious advertising. Under Article 12, the consumer has the right to demand cessation of the unfair practice or removal of its effects, a price reduction, and compensation for the damage caused, in particular through annulment of the contract subject to the mutual return of performances and reimbursement by the trader of the costs incurred by the consumer in connection with the purchase of the product.

3. An act of unfair competition — what does it consist of in this case?

Assessing the marketing model under analysis from the perspective of the Act of 16 April 1993 on Combating Unfair Competition requires, first of all, determining whether the manner of presenting products in the Minecraft environment, through the creation of their virtual counterparts, may qualify as unfair advertising. Under Article 3 of the Act, an act of unfair competition is conduct contrary to the law or to good practices, if it threatens or infringes the interest of another undertaking or of a customer. One form of such an act is unfair advertising, detailed examples of which are set out in Article 16 of the Act.

The essence of the problem presented by the facts at hand is not the promotion of products by influencers as such, but the manner in which the advertising is conducted – embedding the marketing message into the game’s storyline and presenting it as a natural element of gameplay. As a result, the average recipient may fail to notice that they are being exposed to commercial content, which they may take for an ordinary element of the game world or a spontaneous recommendation by the online creator.

The infringement described above is classified as surreptitious advertising (kryptoreklama), included on the so-called blacklist of unfair market practices. It consists in presenting advertising content in a manner that conceals its commercial character, preventing the consumer from making an informed assessment of the message[3]. With regard to Minecraft, examples of such conduct may include placing the advertised product as an element of the storyline, creating its digital counterpart, or using it as a reward for completing specific tasks. In each of these cases, the advertisement ceases to function as a separate marketing communication and becomes part of the player’s experience. From a legal standpoint, it is precisely this integration of advertising with gameplay that may make it difficult for the recipient to recognise its true character.

The general clause contained in Article 3 of the Act of 16 April 1993 on Combating Unfair Competition obliges undertakings to act not only in accordance with the law but also with good practices. These primarily require conducting business in an honest and transparent manner. A breach of those standards – for instance by concealing the advertising character of a publication – could place undertakings applying higher standards of transparency at a competitive disadvantage and thereby undermine fairness in market competition. With respect to the strategy under analysis, good practices also require the influencer to treat their followers honestly and, accordingly, not to exploit their loyalty and susceptibility to the influence of recommendations.

The possibility of holding a person liable for infringing the above regulations depends, however, on whether the influencer is regarded as an undertaking. Under Article 2 of the Act of 16 April 1993 on Combating Unfair Competition, an undertaking includes, among others, a natural person who participates in economic activity by conducting gainful or professional activity, even as a secondary occupation. Today, the main source of influencers’ income is ceasing to be revenue linked to user engagement with published content; increasingly important are fees earned under advertising contracts, sales of products under their own brands, and the provision of other marketing services. Consequently, given the professional and gainful character of their activity, applying the provisions on combating unfair competition to online creators becomes justified.

Following an analysis of the materials published on the entertainment channels of Wojan and Palion, UOKiK found that their online activity involved practices amounting to hidden and aggressive advertising. The President of UOKiK described the situation as follows: “Meanwhile, the influencers I have charged promote their businesses through social media content based on popular computer games for children. One moment they are narrating the course of the gameplay, and the next they are encouraging viewers to buy backpacks, beverages or T-shirts. The advertising message is woven into content of an entertainment character.[4]” The principal charge concerned the use of marketing strategies blurring the line between entertainment and marketing activities, for example by constructing a storyline in Minecraft featuring virtual counterparts of the Żabka store chain offering an assortment of “Wojanek” or “Palionek” branded beverages.

4. Why does a recognisable creator become a subject of interest for UOKiK?

The basis for intervention by the President of UOKiK is an infringement by an undertaking of the collective interests of consumers, which include, among others, unfair market practices, acts of unfair competition, and failure to comply with information obligations towards consumers. An important point is that the collective interest of consumers is not the sum of individual interests; the President of UOKiK therefore does not protect a specific consumer, but the entire group of recipients to whom the commercial communication is addressed.

Influencers who have built up substantial popularity and influence are subject to particular scrutiny by UOKiK. Content published by digital creators may simultaneously reach hundreds of thousands or even millions of users. An infringement committed by an influencer in such circumstances therefore does not harm a single individual, but may mislead a broad group of consumers, thereby constituting an infringement of the collective interests of consumers.

The principal objective of UOKiK’s activity is the protection of the public interest, not the resolution of disputes between specific parties. As a result, proceedings conducted by the President of UOKiK are public-law and administrative in character. For this reason, the imposition of a fine does not depend on the undertaking’s fault; it is sufficient to demonstrate that the infringement occurred. UOKiK’s sanctions are intended, in particular, to have a preventive character and to encourage companies to implement legal-conformity mechanisms, i.e. compliance. In light of the above, an influencer conducting professional and gainful advertising activity should verify the conformity of their publications with the applicable provisions and guidelines, bearing in mind that lack of awareness of an infringement does not relieve them of administrative liability.

The President of UOKiK has the competence to issue a decision finding a practice to infringe the collective interests of consumers and ordering its discontinuation, in which measures may be specified to remove the ongoing effects of the infringements, such as the publication of a statement in the form and with the content specified in the decision[5]. Such a decision is not issued, however, where the undertaking has already ceased the prohibited practice. To prevent proceedings from being automatically terminated merely by removing the advertising material that breached applicable legal requirements or by subsequently labelling the collaboration, Article 27 introduces a decision finding a practice to infringe the collective interests of consumers and declaring that it has been discontinued. On that basis, the President of UOKiK may still order the undertaking to take specific actions to remove the effects of the earlier infringement.

Where a marketing strategy relies on influencers publishing advertising materials using Minecraft, the infringements typically consist in failing to communicate unambiguously that the content is commercial in character. This requirement is set out, among others, in the Recommendations of the President of UOKiK on the labelling of advertising content by influencers, in which the President of UOKiK emphasises that every commercial collaboration – regardless of the form of remuneration (barter, monetary, or a free product) – should be labelled in a manner comprehensible and clearly legible to the average recipient. Moreover, clearly indicating the advertising character of the message at the recipient’s very first contact with the material is an obligation resting not only on influencers, but also on advertising agencies and advertisers. Two-level labelling is recommended, consisting in the simultaneous placement of a proper disclosure by the author of the publication and the use of the tools offered by the platform for labelling advertising content. The mere use of hashtags – especially in abbreviated form, or forms that do not highlight the fact that the influencer received a benefit, such as #ad, #gifted or #współpraca – may be found insufficient. Preference is given to annotations that are clear to recipients and legibly indicate the commercial character of the content, such as #reklama (#advertisement), #prezent (#gift), #autopromocja (#selfpromotion) or #współpracabarterowa (#bartercollaboration).

5. Directing communications at children – the strictest regime

The principal problem for businesses interested in using influencer marketing and open-world games for marketing purposes is the rigorously regulated protection of minor recipients. Advertisers creating content that is by design directed particularly at a young group of potential consumers are obliged to exercise exceptional caution and to take into account additional restrictions arising from the law.

The fundamental role of regulations protecting children against prohibited marketing strategies is evidenced by the inclusion, on the blacklist of aggressive market practices, of advertising containing a direct exhortation to children to purchase the promoted products or to persuade adults to buy them for them[6]. This means that practices of this kind are deemed unfair in all circumstances. When watching, for example, a television advertising block, a child is usually aware of its commercial character. In the case of product placement carried out by an influencer in the Minecraft environment, however, the marketing message is incorporated into the narrative of the gameplay. The young recipient focuses on the course of the game rather than on assessing the nature of the communication, which increases their susceptibility to the advertising’s influence. Beyond hidden promotional messages, it is also prohibited to use tactics classified as aggressive, i.e. influencing the consumer’s behaviour towards a product through pressure or physical or psychological coercion[7].

Examples of communications that raised the doubts of the President of UOKiK and were found to be aggressive are statements made by the influencers Wojan and Palion during their publicly streamed Minecraft gameplay: “Get down to the Żabka stores while these Wojanki are still around.” “Come to Palion Style and order while it lasts, because it’s selling like hot cakes, and school is just around the corner.” “Do you have a box like this? Over 500 people already have one – and you don’t? Come on in, hurry, because school is starting any moment.” These statements are not limited to a neutral presentation of the product. They simultaneously deploy the scarcity mechanism (“while they last”), time pressure (“school is just around the corner”) and social proof (“500 people already have one”), which in the case of minor recipients may lead to manipulation of purchasing decisions that is impermissible under the law.

When publishing advertising content, it must be borne in mind that a child does not possess the capacity for critical analysis of digital content or a level of life experience comparable to the awareness of adults. As a result, conduct which, in relation to adult recipients, could be regarded as a permissible form of marketing communication may, in relation to minors, constitute an unfair market practice.

Owing to the long-term relationships they build with their audiences, influencers commonly come to act as online idols or authority figures. Advertising in the digital environment – for instance within a game – frequently relies on psychological mechanisms characteristic of the information and consumer society, described as the FOMO phenomenon (fear of missing out), compounded by the effect of identification with the influencer or their idealisation, and by pressure resulting from a perceived urgency of purchase and group behaviour. These instruments act considerably more strongly on children than on adult consumers, which provides the basis for a stricter standard for assessing the lawfulness of such practices.

Product placement – the broadcasting regime

In order to reinforce the authenticity of a commercial message, advertisers use product placement, i.e. the natural incorporation of a good, service or trademark into another publication, as an element of the storyline or set design. Product placement is usually better received by consumers than classic advertising, since the promotional message is less intrusive and does not create an impression of direct purchasing pressure. Owing to the greater degree of integration of the advertisement with the presented material, this practice creates conditions conducive to abuse.

The conditions for the admissibility of product placement are set out in Article 17a of the Act of 29 December 1992 on Broadcasting. The practice is acceptable in all programmes, subject however to the specific exceptions provided by the legislator, such as programmes for children. Minors, whose cognitive maturity is not yet fully developed, require reinforced protection against marketing content whose form is less obvious to the recipient. A particularly problematic issue has become product placement in games with an open structure, such as Minecraft. Where the principal entertainment offered by the game is the unlimited possibility of building new worlds and creating the elements that compose them, it is exceptionally difficult to determine whether the actions taken by influencers constitute merely part of the gameplay or already take on the character of paid collaboration.

The protection of recipients is reinforced by obligations imposed on broadcasters. It is prohibited, by means of product placement, to give undue prominence to a product or to directly encourage its purchase through promotional actions. It is also necessary to appropriately mark the programme with a graphic symbol[8]. Product placement is therefore a lawful strategy, provided its transparency is maintained and excessively direct promotional messages are avoided.

This regime, however, covers above all the activity of broadcasters within the meaning of the Act of 29 December 1992 on Broadcasting. An influencer does not, generally speaking, have the status of a “broadcaster”, and the content they publish is not covered by the obligations arising under Article 17a of the Act. Under the current legal framework, the high standard of protection of young recipients covers, among others, television and radio materials; yet where the same content is published by a digital creator, for example as a video on YouTube, only soft-law recommendations apply.

Recognising the growing popularity of mass social platforms, the EU introduced Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive, AVMSD) in view of changing market realities. The act extended the scope of regulation to video-sharing platform providers, which, however, does not mean that the boundary between influencers and broadcasters has been entirely erased. The requirements arising from the Directive focus mainly on platforms’ responsibility for creating mechanisms to protect minors, such as age verification and enabling creators to unambiguously label commercial content. The act does not, however, fully equate online creators with broadcasters in terms of the rights and obligations arising from competition and consumer protection.

A legal gap thus arises which allows influencers to publish content containing product placement directed at children on social media or in the gaming environment discussed here. The very same materials, if presented in the form of a television programme or radio broadcast, would simultaneously be found impermissible and in breach of the Act. The same advertising communication is therefore subject to different standards of scrutiny solely on account of the entity distributing it.

This produces a paradoxical legal situation in which the highest level of protection for minors is provided for content published via traditional media. Under contemporary marketing strategies, by contrast, children and adolescents are most exposed while using online platforms and video games, whose product-placement activity is governed by soft-law instruments such as the guidelines and recommendations of the President of UOKiK or platform terms of service. Article 17a of the Act of 29 December 1992 on Broadcasting should nevertheless serve as a normative benchmark illustrating the level of protection of minors that the legislator considers desirable. The legal gap described – as it reveals the lack of full coherence in protecting children against hidden advertising messages – should form the basis for further amendment of the provisions relating to influencer marketing and commercial materials published on video-sharing and gaming platforms.

Advertising of food and sweets to children – a liberal regulatory model and its limitations

The Polish legislator has not decided to introduce a statutory prohibition on the advertising of food – particularly sweets high in sugar, fat or salt (HFSS – high fat, sugar, salt) – directed at children. The protection of minors in this area takes the form of liberal regulation, based on self-regulatory solutions developed by the media market. The state has thus laid down only a general legal framework, leaving detailed restrictions and rules to the will of market participants, chiefly broadcasters.

Provisions in this area are contained in the Agreement of television broadcasters on the principles of disseminating food advertisements directed at children, in force since 1 January 2015. This self-regulation came into being through the active cooperation of, among others, the National Broadcasting Council (KRRiT), the Advertising Council, the Polish Federation of Food Producers, the Ministry of Health and the television broadcasters who undertook to sign it voluntarily[9]. The Agreement aims to counteract the formation of undesirable eating habits among young audiences and to clarify and extend the duties arising from Article 16a(3a) and (3b) of the Act of 29 December 1992 on Broadcasting. Under those provisions, programmes directed at children should not be accompanied by content advertising foodstuffs or beverages whose excessive consumption may be harmful. KRRiT has, moreover, been granted the competence to designate such foods by regulation, after consulting the minister responsible for health. That body may also indicate preferred ways of publishing advertisements for foodstuffs questioned from a health perspective, so that such messages do not accompany children’s programmes.

Supervision of the operation of this self-regulatory system is exercised by the National Broadcasting Council. The authority analysed the activity of sixteen children’s channels and eight general-audience channels over the period from July 2020 to June 2023. Its key findings, contained in the report “Television channels and programmes for children free of advertisements for sweets and salty snacks”, indicate a high level of compliance with the commitments undertaken by the parties to the agreement. Appropriately constructed self-regulatory mechanisms may therefore sometimes prove equally or even more effective than rigidly imposed hard law. Particularly in relation to a flexible and dynamic media market, greater decision-making autonomy for broadcasters with respect to practical rules may contribute to a more efficiently functioning system.

The protection system is further supplemented by instruments of advertising ethics, in particular the Code of Advertising Ethics and the activity of the Advertising Ethics Commission operating within the Advertising Council. The Code contains guidance on responsibly directing marketing communications at children and prohibits advertisers from exploiting their natural trust and lack of experience[10]. In assessing the admissibility of food advertisements, the principal reference point is the HFSS criterion (high fat, sugar, salt), on the basis of which products are classified as requiring particular marketing caution owing to their content of ingredients potentially harmful in large quantities.

The effectiveness of the self-regulation flowing from the Agreement of television broadcasters on the principles of disseminating food advertisements directed at children is nevertheless limited in both its personal and material scope. The rules bind only the voluntary signatories of the agreement, who are primarily traditional television broadcasters. Moreover, they apply to marketing materials broadcast in television programmes or radio broadcasts falling within the scope of the agreement. Its provisions do not, however, constitute binding guidelines for online creators publishing content on platforms such as YouTube or TikTok, or for persons conducting advertising activity in the computer-game environment. An influencer, remaining essentially outside the reach of the regulations analysed, may thus use Minecraft to present a sponsored toy containing sweets, use it as an element of the gameplay, and so on.

The example described reveals a visible regulatory asymmetry. Advertising of sweets or other foodstuffs questioned from a health perspective, broadcast via traditional media, is subject to a range of extensive restrictions and to the supervision of KRRiT. An analogous communication published by a digital creator using instruments at the frontier of new technologies remains covered only by the general principles of consumer law and the Recommendations of the President of UOKiK.

A model based on the combination of liberal statutory regulation and broadcaster self-regulation therefore does not guarantee full protection of minors, given its mismatch with the way in which the youngest internet users consume content today. Marketing communications concerning food and sweets are increasingly being shifted by advertisers from traditional television to social media and gaming environments, where the existing protective mechanisms have a much narrower scope of application. The resulting regulatory gap constitutes one of the most significant arguments in favour of developing more coherent rules on influencer marketing directed at minors, irrespective of the communication channel used.

Open-world games, crypto and blockchain – the most rapidly developing layer

A relatively significant regulatory challenge is also posed by the use of blockchain technology and economic mechanisms linked to the environment of digital games. The issues of advertising and product placement are already subject to relatively well-established regulation, but areas based on the use of newer technologies remain at a stage of dynamic legislative development. Under the current legal framework, the prevailing part of the provisions in this area merely indicates the desirable directions in which the law should develop, i.e. takes the form of de lege ferenda postulates.

A subject of particular debate is so-called loot boxes, i.e. in-game elements containing randomly selected items or other mechanisms facilitating gameplay. They can be purchased using in-game currency or by paying with real money. Their similarity to games of chance is contested, in particular because the player pays a fee in order to gain access to a previously unknown reward, the value of which depends on chance rather than skill. This kind of exploitation of psychological propensities – human susceptibility to addiction to randomised outcomes and variable-ratio reward systems – provides grounds for the development, among children, who constitute the dominant group of game users, of tendencies towards compulsive and gambling behaviour.

Polish law contains no provision that directly regulates the practice of loot boxes. Of fundamental relevance here is the Act of 19 November 2009 on Gambling Games, Article 2 of which defines games of chance as games offering monetary or material prizes whose outcome depends on chance. Loot boxes, however, are not expressly listed among the games falling within that category, which leaves online creators and game producers facing legal uncertainty as to whether their activity might be found to promote gambling.

Increasingly, elements functioning within computer games do not remain merely digital items used during gameplay. Thanks to blockchain technology, they can be transformed into tokens or non-fungible tokens (NFTs), which exist independently of the game itself and can be traded on external platforms. This practice means that activity conducted within the game environment may begin to fall within the scope of Regulation (EU) 2023/1114 of the European Parliament and of the Council on markets in crypto-assets (MiCA). Where a token is not used solely within the game environment but becomes the object of trading on a secondary market or performs an investment function, it may be deemed a crypto-asset within the meaning of MiCA. Consequently, issuers and entities promoting such solutions may become subject to obligations concerning transparency of information, publication of information documents (whitepapers) and the conduct of marketing communications in accordance with the requirements of the Regulation.

A factual situation thus arises in which the same product may function simultaneously as a physical toy available in retail sale, an item used during gameplay in Minecraft, and a token recorded on a blockchain. Each of these forms is subject to different legal regimes, including consumer law, the rules on counteracting unfair market practices, the Gambling Games Act, digital services legislation, and the crypto-asset market rules arising from the MiCA Regulation.

The case under analysis clearly demonstrates that contemporary legal regulation, both national and European, has not been updated sufficiently to provide advertisers and consumers alike with a clear position in relation to the multi-layered commercialisation model that is now widespread. The dynamic impact of new technologies on traditional legal institutions has created a need to develop more coherent solutions encompassing consumer law and the protection of minor participants in the media market, without divisions into different modes of regulation depending on the entity disseminating the advertising content.

Conclusions

The analysis conducted does not mean that the practice of influencer product placement in the open environment of Minecraft is, under the current legal framework, subject to no regulation at all. Of key importance are, above all, statutes containing general clauses, such as the Act on Combating Unfair Competition, the Act on Counteracting Unfair Market Practices and the Act on Competition and Consumer Protection. The use of the concept of good practices, the prohibition on misleading consumers, and the model of the average recipient of advertising content means that these provisions can impose certain duties even on relatively novel marketing strategies, for instance those employing new technologies. Confirmation of this thesis may be found in the activity of the President of UOKiK, who has brought formal charges against influencers, such as Wojan and Palion, for infringing the legal norms presented above.

Considerably less flexible, by contrast, are the sectoral regulations designed with traditional media in mind. The provisions of the Broadcasting Act, including those on product placement, and the self-regulatory mechanisms relating to food advertising directed at children, are built around the concepts of “broadcaster”, “programme” and “transmission”. These terms correspond to traditional media but do not fit the dynamically growing internet platforms, streaming services and gaming environments of today. As a result, an identical marketing communication may be subject to different standards of protection solely on account of the manner of its dissemination.

A regulatory gap also appears with respect to the protection of minors. Television and radio broadcasters are bound by extensive restrictions, whereas in the social media environment protection rests primarily on self-regulation, guidelines of administrative authorities and platform terms of service. These solutions, though important, do not provide a level of protection comparable to the regulations binding traditional broadcasters.

New monetisation models employing randomised mechanisms, tokenisation of items and blockchain technology in turn create a problematic situation of simultaneous subjection to consumer law, the rules on unfair market practices, the Gambling Games Act, the MiCA Regulation and digital services legislation. What emerges is a multi-layered regulatory system in which a single product or service may be assessed concurrently from the perspective of several separate legal regimes.

Legal change in the areas described could be introduced by extending the sectoral regulations and redefining concepts such as “broadcaster”, “programme” and “transmission” so that they also cover online creators and communications carried out in gaming environments. Alternatively, the less flexible legislative acts could be transformed along the lines of statutes with a broader personal scope, through the use of general clauses.

Given the dynamic development of new technologies, the second path of legislative change appears the more prudent. Statutes based on general clauses display considerably greater durability, as they make it possible to assess new phenomena regardless of the mechanisms employed.

[1] https://uokik.gov.pl/reklama-skierowana-do-dzieci-uokik-sprawdza-media-spolecznosciowe

[2] Act of 16 February 2007 on Competition and Consumer Protection, Article 106.

[3] Act of 23 August 2007 on Counteracting Unfair Market Practices, Article 7.

[4] https://uokik.gov.pl/presja-zakupowa-na-dzieci-zarzuty-dla-dwoch-influencerow-youtubowych

[5] Act of 16 February 2007 on Competition and Consumer Protection, Article 26.

[6] Act of 23 August 2007 on Counteracting Unfair Market Practices, Article 9.

[7] Ibid., Article 8.

[8] Act of 29 December 1992 on Broadcasting, Article 17a.

[9] https://www.gov.pl/web/krrit/krrit-chroni-dzieci-przed-reklamami-tzw-niezdrowej-zywnosci

[10] Code of Advertising Ethics, Article 24.

Artykuł Influencer Product Placement in Open-World Games and Competition and Consumer Protection Law pochodzi z serwisu KIELTYKA GLADKOWSKI LEGAL | CROSS BORDER POLISH LAW FIRM RANKED IN THE LEGAL 500 EMEA SINCE 2019.

The phenomenon of fake reviews in the digital space has evolved from a marginal image issue to a central focus of market supervision authorities and EU legislators. The contemporary ontology of this phenomenon extends beyond primitive content fabrication to encompass any form of communication that, by distorting the actual consumer experience, misleads the recipient, directly influencing their decision-making process. Legally, a fake review is considered not only a completely false message, but also one that, by omitting important facts or manipulating context, creates a false impression of the quality of a product or the reliability of a seller. This practice is classified as unfair commercial activity if its nature causes or is likely to cause the average consumer to make a transactional decision they would not otherwise make, thus violating the fundamental principles of fair dealing.

The typology of activities considered unfair rests on several fundamental pillars, the most blatant of which is direct fabrication. This involves posting or commissioning the creation of false recommendations from specialized external entities, such as marketing agencies, which directly violates regulations on combating unfair market practices. Another mechanism is selective manipulation, in which a business intentionally manages the visibility of reviews by removing, concealing, or delaying the publication of negative reviews while favoring positive ones. Such action distorts the image of actual customer satisfaction and is considered misleading regarding the essential characteristics of a product or service. An equally significant aspect is feigned verification, i.e., declaring that reviews come from real buyers without implementing proportionate and reasonable steps to verify their authenticity, which constitutes a direct violation of the disclosure obligations imposed by the Omnibus Directive.

Contemporary market practices have also evolved more subtle forms of manipulation, such as astroturfing, which involves creating artificial social support through employees or store owners posing as independent consumers. These activities often involve the manipulation of user profiles, where images generated by artificial intelligence algorithms are used to authenticate fictitious accounts, creating false social proof. Each of these practices, regardless of their technological sophistication, is subject to strict scrutiny by competition and consumer protection authorities.

The role of the President of the Office of Competition and Consumer Protection and the responsibility of management boards

The President of the Polish Office of Competition and Consumer Protection (UOKiK) serves as a central regulator in the legal system, endowed with rigorous powers to counteract violations of collective consumer interests. The main disciplinary instrument at the authority’s disposal is an administrative fine, which can be imposed in the amount of 10% of the turnover achieved by the entrepreneur in the financial year preceding the year of issuance of the decision. The amount of the fine is not determined arbitrarily, but rather results from precisely defined criteria, which include, above all, the scale of the violation, its duration, and the degree of intentionality of the perpetrator. Importantly, this fine is intended to serve not only a repressive function but, above all, a preventive and deterrent one, discouraging other market participants from engaging in similar unfair practices involving the manipulation of reviews or misleading as to the authenticity of reviews.

The enforcement procedure in consumer matters is designed to ensure high effectiveness of supervisory activities. A business subject to a sanction is obligated to settle the fine within 14 days of the decision becoming final, which directly contributes to the state budget. A crucial procedural element is the prejudicial nature of the decisions of the President of the Office of Competition and Consumer Protection (UOKiK), which means that the authority’s findings regarding violations of the law are binding on common courts in compensation cases brought by injured customers. This legal structure significantly facilitates consumers in pursuing civil claims, as they do not have to prove the illegality of the store’s actions, focusing solely on demonstrating the damage suffered. The office’s activity in recent years, reflected in numerous proceedings against e-commerce leaders, confirms that protecting the transparency of reviews has become a regulatory priority, translating into real and severe financial consequences for violators.

The contemporary model of liability in consumer protection law departs from a concept focused solely on the business entity, shifting the burden of sanctions also to individuals who actually manage the enterprise. The President of the Office of Competition and Consumer Protection (UOKiK) has the authority to impose a personal fine of up to PLN 2,000,000 on a manager. This liability is triggered by demonstrating that the manager has intentionally allowed – through their actions or conscious omissions – the company to violate collective consumer interests. In case law, the degree of management involvement in decision-making processes regarding marketing and communications is crucial. This liability may therefore affect a management board member who approves a budget for obtaining reviews from external opinion farms or ignores the lack of implementation of verification procedures under the Omnibus Directive, despite being aware of such deficiencies.

It should be emphasized that the responsibility of managers is autonomous and independent of any penalty imposed directly on the entrepreneur. This is intended to provide a strong incentive for management to build internal compliance structures and actively oversee the entity’s operational ethics. In the era of digitalization of trade, where algorithms and automation of marketing processes can generate violations on a massive scale, the personal financial risk of managers is intended to compel prioritizing compliance as the foundation of business strategy. Therefore, the systemic fight against false reviews is implemented not only through sanctions against corporate structures but also by disciplining those who actually shape companies’ market policies. This, according to the legislature, is intended to ensure long-term improvement in integrity standards in electronic trading.

The Omnibus Directive and the blacklist of market practices

The implementation of the Omnibus Directive into the Polish legal system significantly redefined transparency standards in e-commerce, introducing mechanisms that directly address the systemic manipulation of consumer reviews. A key instrument in this regard is the so-called blacklist of market practices, which constitutes a catalog of behaviors considered unfair in all circumstances, eliminating the need for supervisory authorities to conduct a case-by-case analysis of the consequences of a given action. Classifying these market torts as unfair practices aims to eliminate evidentiary difficulties, as their mere existence exaggerates the entrepreneur’s wrongdoing. This legal framework not only strengthens the consumer’s position but, above all, simplifies the evidentiary process, making the fight against e-commerce abuse more effective and predictable for market participants. The foundation of the new regulations is an absolute prohibition on manipulating the verification and authenticity of product recommendations, which imposes an active obligation on sellers to implement procedures to verify the origin of reviews.

Under the current wording of the regulations, it is considered an unfair market practice for a trader to claim that product reviews were posted by consumers who actually used or purchased the product, in situations where reasonable and proportionate steps were not taken to verify their authenticity. This practice violates the consumer’s right to reliable information, which is essential for making an informed decision about purchasing the product, and violating it constitutes conduct contrary to good practice. The law prohibits not only posting completely false reviews, but also commissioning third parties to create them, or transferring recommendations between products with different parameters, which is referred to as review hijacking. Other offenses listed in the catalog are treated equally severely, such as using false quality certificates without appropriate authorization or using surreptitious advertising, which involves using editorial content to promote a product without clearly identifying the paid nature of the communication. Aggressive techniques are also considered particularly burdensome, including mass spamming and forced selling, which involves demanding payment for products delivered to the consumer without their prior order.

The blacklist also eliminates techniques such as bait advertising and direct persuasion of children to purchase, which aims to protect the integrity of the consumer decision-making process from manipulation. This protection of minors stems from their particular vulnerability to advertising messages and their inability to critically assess the persuasive nature of commercial offers. Expanding the list to include a ban on posting or commissioning another person to post false reviews for the purpose of promoting products significantly complements the system, preventing brands from using agencies that fabricate social evidence. It is emphasized that any form of distortion of the actual image of a product’s popularity constitutes a violation of the collective interests of consumers, which entitles the President of the Office of Competition and Consumer Protection (UOKiK) to intervene under public law as soon as a threat to the interests of all market users arises.

A particularly significant and painful consequence of these unfair techniques for entrepreneurs is a specific civil law sanction in the form of an extended right of withdrawal from the contract. If an e-store engages in practices listed in the prohibited catalog or fails to comply with information obligations regarding review verification, the statutory return period granted to the buyers is extended from 14 days to a full 12 months. This mechanism is a direct consequence of the assumption that, in the absence of reliable information, the consumer could not have expressed a fully informed intention to purchase, which suspends the running of standard mandatory deadlines. Systematic combating of review fraud and the use of black market practices is therefore becoming not only a matter of business ethics but the foundation of legal security and stability for every entity operating in the e-commerce sector. Neglect in transparency can lead to mass claims for refunds, posing a real threat to the operational liquidity of the company.

Manipulation Architecture and Platform Obligations under the Digital Services Act (DSA)

The phenomenon known as dark patterns constitutes a sophisticated form of interference in the user’s decision-making process, based on the deliberate use of interface architecture to distort their autonomy of will. Manipulative design patterns are not merely a manifestation of aggressive marketing, but a systematic designer’s action aimed at inducing a specific cognitive bias in the consumer, which ultimately leads to a purchase decision they would not have made in conditions of full transparency. The psychological foundation of these actions is the use of heuristics, i.e., simplified rules of reasoning and automatic thinking, which in the fast-paced environment of e-commerce transactions make the user susceptible to subliminal suggestions. This phenomenon has evolved from simple forms of persuasion to advanced interface manipulation, where the line between inducement and fraud is deliberately blurred to maximize conversion at the expense of the interests of the weaker party in the legal relationship.

A particularly significant area of application of these practices is the system for presenting reviews and suggesting their authenticity, where manipulation takes the form of so-called interface interference. Businesses often employ patterns involving selective content display, which in practice means deliberately hiding negative reviews on subsequent pages of the website while simultaneously highlighting only enthusiastic reviews on the product’s home page. This practice violates the model of the average consumer, who has the right to expect that the image presented of a product’s popularity and quality is reliable and has not been subjected to arbitrary filtering. Manipulation in the sphere of social evidence also includes fabricating popularity indicators, such as false messages about the number of people viewing a given product at a given time or false offer duration counters, which create an artificial sense of scarcity in the user and pressure them to immediately close the transaction. Under the Polish Act on Combating Unfair Market Practices, these activities may be classified as misleading because they distort the actual market conditions, preventing a rational comparison of offers.

Another dimension of manipulation is the technique known as confirmation shaming, which in the sphere of opinion writing involves the use of evaluative and emotional language to coerce users into specific behaviors, for example, through unsubscribe buttons suggesting a lack of consumer awareness. These practices are closely related to the “roach motel model”, where the process of issuing a favorable review is simplified to the maximum extent, while editing, reporting an error, or deleting content requires navigating a complex subpage structure, which is intended to discourage users from correcting false information. In the legal context, such procedural barriers are considered burdensome impediments that violate good practice and the principle of commercial fairness. An analysis of case law and the positions of supervisory authorities indicates that an interface that deliberately hinders users from exercising their rights or changing their minds loses its neutrality and becomes a tool for harming consumer interests.

A fundamental change in the regulatory sphere was brought about by the entry into force of the EU Digital Services Act (DSA), which, in Article 25, explicitly prohibits online platform providers from designing, organizing, and operating interfaces in a way that misleads or manipulates service users. This regulation is overarching and complements the existing consumer protection framework by introducing a direct obligation to maintain neutrality in choice architecture and prohibiting structures that significantly impede users’ ability to make free and informed decisions. Violation of this prohibition entails not only civil law risks but also severe administrative sanctions, which can amount to a significant percentage of the business’s global turnover.

In the sphere of law enforcement, the key role is played by the model design of the average consumer, who is observant and cautious but lacks specialized knowledge of the psychological mechanisms used in interface design. This protection is preventative and abstract in nature, meaning the President of the Office of Competition and Consumer Protection (UOKiK) can intervene in situations where the mere existence of a manipulative pattern poses a real risk of distorting market behavior, without having to wait for measurable financial damage to a specific individual. Effectively combating dark patterns requires businesses not only to comply with the law but, above all, to shift to a design model focused on reliability, where all product information, including opinions, is presented free from coercive mechanisms. Ultimately, interface transparency is becoming a prerequisite for maintaining trust in the digital economy, and the use of sophisticated forms of manipulation is perceived as highly harmful to society, subject to strict assessment in light of the principles of social coexistence.

New obligations for marketplaces regarding moderation and transparency

The entry into force of Regulation 2022/2065, known as the Digital Services Act (DSA), represents a fundamental shift in the liability paradigm for intermediary service providers, particularly marketplaces. This regulation shifts the emphasis from passive content hosting to active oversight of the transparency and security of the digital system, introducing rigorous operational standards aimed at eliminating illegal content while respecting users’ fundamental rights. A key pillar of this reform is the formalization of moderation processes, which until now were often subject to arbitrary internal platform decisions and are now subject to strict procedural rigors contained in the notice-and-action mechanism. Under the DSA, each platform is required to provide easily accessible and user-friendly tools for identifying potentially illegal content, including fake reviews or infringing offers. The mere receipt of a report obliges the provider to promptly and objectively address it.

The evolution of moderation obligations is inextricably linked to the requirement for transparency in decisions, which is achieved through the justification mechanism provided for in the EU regulation. When a marketplace decides to remove content, limit its visibility, or suspend a user’s account, the user is absolutely obligated to provide clear and specific reasons for such action, which is intended to prevent abuse by blocking reliable reviews that are unfavorable to the seller. This system is complemented by a mandatory internal complaint handling system, which allows users to appeal moderation decisions free of charge within a period of at least six months. This constitutes an important procedural guarantee and allows for the correction of potential algorithmic errors. It is indicated that such a legal framework is necessary to counteract the fragmentation of consumer protection, which previously relied primarily on general national clauses that were unsuitable for the scale of operations of global digital entities.

A significant innovation introduced specifically for trading platforms is the “Know Your Business Customer” (KYBC) principle, regulated in the chapter on marketplace transparency. These entities are charged with collecting and verifying information about traders offering their products through their interfaces, including registration data, payment account numbers, and declarations of commitment to offer goods in compliance with EU law. This mechanism aims to eliminate the phenomenon of anonymous sellers, who often promote defective products using fabricated reviews and, after raising capital, disappear from the market, avoiding legal liability. The platform is obligated to suspend services for sellers who fail to submit the required documents, making the marketplace an active guardian of the legality of trade, rather than merely a passive intermediary in trade.

The scope of transparency obligations extends beyond relationships with individual users to include public reporting through the periodic publication of transparency reports. These documents must include detailed data on the number of orders received from national authorities, statistics on content moderation initiated by the platform itself, and information on the use of automated tools in verification processes. For very large online platforms, these rigors are even stricter, including the obligation to conduct annual audits and systemic risk assessments, including analysis of the interface’s vulnerability to manipulation that could negatively impact public safety or consumer protection. The systemic fight against disinformation and unfair market practices is therefore anchored in the full transparency of operational processes, which allows supervisory authorities to continuously monitor the effectiveness of implemented security measures.

Supervision of compliance with these obligations is based on a new institutional architecture, in which national digital services coordinators, working closely with the European Commission, play a central role. The enforcement system for the adopted regulations is based on fines of up to 6% of a provider’s global turnover, which compels compliance with specific cybersecurity standards. This control system is designed to ensure that marketplaces not only implement the required procedures but also apply them reliably and uniformly across the European Union, which is crucial for building consumer confidence in cross-border trade. The introduction of these standards ends the phase of full regulatory freedom for platforms, imposing on them real responsibility for shaping the environment in which the modern exchange of goods and services takes place.

Technological verification mechanisms and modern operating models

Authenticity Suggestion and Pressure Mechanisms

The evolution of digital market oversight has led to the development of mechanisms in which traditional legal instruments are increasingly being replaced by algorithmic jurisdictions based on advanced artificial intelligence systems. The phenomenon known as AI exclusion is a modern form of sanction that, for e-commerce entities, can prove more severe than traditional financial penalties imposed by administrative bodies. The foundation of this process is the integration of data on the credibility of reviews directly with positioning parameters in ranking systems, which means that transparency is no longer merely an ethical obligation but a condition for the technical visibility of an offer. Recommendation algorithms operating within platforms such as Google and Amazon constantly analyze behavioral and linguistic patterns to identify anomalies suggesting manipulation of social evidence. These systems are currently capable of recognizing the structure of texts generated by LLM language models, which are characterized by a specific repetition of phrases and a lack of emotional details typical of authentic consumer experiences. An additional risk factor subject to automatic verification is the so-called review growth rate, where a sudden jump in the number of positive ratings without correlation with actual website traffic or sales volume is interpreted by AI as a warning signal initiating restrictive procedures.

The consequences of an online store being classified by AI systems as posing a high risk of manipulation are immediate and often irreversible in the short term. This mechanism, known in market practice as shadow banning or de-indexing, leads to a drastic decline in visibility in search results and the blocking of offers in advertising systems, effectively cutting the entrepreneur off from key customer acquisition channels. Under the provisions of the Digital Services Act, providers of very large online platforms are required to maintain particular transparency regarding the parameters used in recommendation systems. Article 27 of the aforementioned regulation requires platforms to clearly define in their regulations the key parameters determining information ranking, which aims to limit algorithmic arbitrage and enable entrepreneurs to understand the reasons for a potential decline in their market exposure. It is worth noting that modern risk assessment systems may be classified as high-risk systems within the meaning of the Artificial Intelligence Regulation, which imposes strict requirements on their creators regarding human oversight and the prevention of algorithmic discrimination.

In parallel to restrictive systems, a paradigm known as agentic commerce is developing, in which purchasing processes are carried out by autonomous AI assistants acting directly on behalf of the consumer. In this model, traditional product reviews cease to serve as persuasive texts for humans and become raw input data for machines that filter the market in search of offers with the highest level of verified trust. A key element of this new commerce architecture is the so-called trust layer, built on protocols such as the Universal Commerce Protocol promoted by Google or the Agentic Commerce Protocol developed by OpenAI. These systems are guided not only by price or availability of goods but above all by the certified credibility of the seller’s data, automatically rejecting offers from entities that lack a clear digital traceability of their recommendations. The collaboration of AI assistants with secure payment systems, such as the Agent Payments Protocol, creates a closed ecosystem in which offers at risk of manipulation are excluded at the initial algorithmic selection stage, before they are even presented to the user.

In the era of agent-based commerce, the role of modern shopping assistants is becoming dominant, forcing businesses to redefine their credibility-building strategies. The Context Protocol model and other open-source solutions enable the exchange of context between various AI models and commerce systems, allowing information about unfair practices by a single store to be instantly shared across the entire assistant network. The doctrine suggests that this systematic approach to eliminating abuse is a natural response to the technological ease of fabricating content online. For an e-commerce store, losing its trustworthy status in the eyes of Google or OpenAI algorithms means the modern equivalent of server shutdown, as AI assistants, protecting the interests of their users, will systematically bypass offers that generate manipulative signals. Thus, the fight for authenticity is no longer a mere compliance issue but an existential foundation in the new, automated e-commerce environment, where barriers to entry into the trust layer are becoming increasingly difficult for entities employing pressure mechanisms and suggesting false authenticity.

Compliance as a Service and the Digital Feedback Path

The rapid evolution of the e-commerce market and the increasing professionalization of unfair market practices have forced entrepreneurs to abandon a reactive reputation management model in favor of proactively building a digital immune system. The scale of the challenge facing modern e-commerce is illustrated by analyses of the systematic erosion of trust in the digital sector, pointing to the prevalence of fake reviews and consumer concerns about the mass implementation of generative artificial intelligence for opinion fabrication. This state of affairs creates decision paralysis, where an overabundance of unreliable information, instead of supporting the purchasing process, becomes an insurmountable barrier.

The economic impact of the lack of reliable content verification is directly measurable and translates into tangible operational losses for businesses. The literature emphasizes that exposure to manipulated reviews drastically reduces purchase intentions and brand trust, generating measurable financial losses. The information vacuum filled with false enthusiasm also leads to a phenomenon known as post-purchase dissonance, in which a product that fails to meet expectations is returned to the seller as a complaint or contract withdrawal. Consequently, the lack of investment in transparent review processes generates hidden logistical and operational costs that, in the long run, may outweigh the gains achieved through the temporary increase in conversions driven by manipulation.

In response to increasing regulatory rigor, including the Omnibus Directive, the Digital Services Act (DSA), and the AI Act framework, an operational model known as Compliance as a Service (CaaS) has emerged in market practice. It involves fully outsourcing compliance processes to specialized technology providers who take over the burden of monitoring and verifying content in accordance with current regulations. CaaS allows for the automation of data oversight, which is essential in an environment where the volume of incoming reviews precludes manual oversight without risking accusations of disproportionality. In this approach, compliance ceases to be merely an administrative cost and becomes a component of a strategy for building brand value by guaranteeing the authenticity of every customer touchpoint.

The foundation of the Compliance as a Service model is the maintenance of clean data and the generation of an indisputable digital trace of the review’s provenance. Every published review should be accompanied by a log containing metadata regarding the specific transaction, a unique order number, and delivery status, creating auditable proof of authenticity that can be presented during inspections by supervisory authorities such as the President of the Office of Competition and Consumer Protection. This digital reconstruction of the review process provides the most effective legal shield for businesses, eliminating the risk of allegations of unfair market practices. In the era of algorithmic jurisdiction, where ranking systems favor content supported by digital evidence, having a certified trace of data provenance is becoming a prerequisite for maintaining the market visibility of an offer.

Parallel to technical verification, modern review management systems integrate mediation mechanisms that allow for the amicable resolution of disputes before they are publicly expressed. Market experience suggests that implementing structured review processes allows for the amicable resolution of a significant portion of consumer disputes, effectively preventing the publication of negative reviews resulting from logistical errors. This approach aligns with the principles of reliability and good market practices, building customer relationships based on dialogue rather than solely on the one-way transmission of ratings.

Transaction verification is now becoming the market standard, replacing open, abuse-prone review sections with a system of unique invitations sent only after a purchase is completed. The literature emphasizes that restricting the review process to those who actually purchased the product is the simplest and most effective way to comply with the obligations imposed by the Omnibus Directive. This not only minimizes the risk of severe financial penalties, but above all, provides AI shopping assistants with reliable input data, which, in the new agent-based commerce paradigm, will determine the viability of each entity in the e-commerce ecosystem.

Artykuł Faking reviews in e-commerce – analysis of new legal regulations, algorithmic mechanisms and market practices in the e-commerce sector pochodzi z serwisu KIELTYKA GLADKOWSKI LEGAL | CROSS BORDER POLISH LAW FIRM RANKED IN THE LEGAL 500 EMEA SINCE 2019.

Business concentrations are common and significant phenomena that constitute a part of modern economic activity. They include takeovers, mergers, the acquisition of assets, and even the creation of joint ventures. Their primary goal is typically to develop companies and increase competitiveness and efficiency. They can also lead to a restriction of market competition. Therefore, the legislature has introduced the obligation to notify the President of the Office of Competition and Consumer Protection (UOKiK) of any intended concentration in cases where it may affect competition conditions in Poland. This article will discuss when an enterprise must notify the President of the Office of Competition and Consumer Protection (UOKiK), what information should be included, and the procedure conducted by the President of the UOKiK.

Reporting the intention to concentrate

An undertaking is required to notify the intended concentration before implementing it. This is a necessary condition – notification must be submitted first, and only then the transaction must be finalized. The entity must assess whether it meets the required statutory requirements for such notification. Mandatory situations in which an intended concentration must be notified to the President of the Office of Competition and Consumer Protection include: the combined global turnover of the participating undertakings in the previous year exceeded EUR 1 billion; the combined annual turnover in the territory of the Republic of Poland exceeded EUR 50 million (as per Article 13, Section 1 of the Office of Competition and Consumer Protection); and the concentration does not have a Community dimension. This obligation applies to both Polish and foreign undertakings, provided that the effects of the concentration must occur in the territory of the Republic of Poland. Furthermore, the Act also covers extraterritorial concentrations if the effects could potentially occur in the territory of the Republic of Poland. A concentration is not subject to notification if the new entity does not plan to enter the Polish market within three years, and the market of such an undertaking does not produce any effects or overlaps with Polish markets.

Forms of concentration

The most common form of concentration in practice is primarily a business combination (referred to in Article 13, Section 2, Item 1). A merger can take two forms. The first is incorporation, where all assets of the company being acquired are transferred to the acquiring company in exchange for specific shares/stocks granted to the shareholders of the acquired company. The next form is a merger, which involves the creation of a new company that takes over the assets of all merging entities. An intention to concentrate, regardless of whether it is an incorporation or a merger, can be declared by all entrepreneurs, as each of them is a party to such proceedings.

Another form of concentration is the acquisition of control. This refers to the ability to exert decisive influence over another entity, and can therefore take a direct or indirect form. Such control can result from: holding a majority of votes at the shareholders’ meeting, the right to veto key decisions, the right to appoint or dismiss members of the management board or supervisory board, holding a majority of votes in a partnership, or even acquiring ownership of the enterprise or part thereof. This list is open-ended; any other situation that allows one entity to acquire control over another can be added to the above list. Control is also divided into specific types, which include, among others: Sole control – where one entity exercises control independently; joint control – where it is exercised by several entrepreneurs (e.g., when company members hold a 50/50 shareholding or one of them holds a majority and the other has a veto); positive control – where the right to make independent decisions; negative control – where the entity has the ability to block key decisions; and active and passive control – where the acquisition of control may result from factual circumstances (e.g., share redemption). The notification obligation arises in situations where there is an acquisition of sole control, an acquisition of joint control, a change in the type of control (from joint to sole or vice versa), and in situations where the composition of the jointly controlling entities changes. The obligation to notify the intended concentration rests with: in the case of an acquisition of control – the undertaking acquiring such control; in the case of a transition from joint to sole control – the undertaking acquiring sole control; In the event of a transition from sole to joint control, a new joint controlling party is appointed, and in the event of a change in joint controlling party, the intended concentration must be notified by the party joining the joint control. If there is only a replacement of a partner, the previous joint controlling party is not required to notify the intended concentration.

Another form of concentration is the creation of a joint venture. Two or more entrepreneurs create a new entity whose purpose is to perform the functions of an independent entrepreneur and operate on a lasting basis. This applies to companies, partnerships, and cooperatives, but does not include civil partnerships, where the entrepreneurs are the partners, not the company. Notification should also be submitted in special cases, such as the expansion of an existing joint venture into new markets or its function, which may have a specific impact on the market situation. The notification obligation rests with all entrepreneurs who form the joint venture; they may submit a single notification, or each may do so separately, although this remains a single procedure.

Another form of concentration is the acquisition of another company’s assets. This entity may acquire part of an enterprise, a production facility, a press title, a brand, or other assets with independent turnover. However, a necessary condition is that the assets must generate turnover in the territory of the Republic of Poland exceeding €10 million in at least one of the last two financial years. Only the acquirer of the assets must submit a notification. However, if the assets originate from multiple companies in the same group, it is treated as a single concentration, and the turnover of the assets is aggregated.

Non-reportable concentrations

Pursuant to Article 14 of the Act of 16 February 2007 on Competition and Consumer Protection (consolidated text: Journal of Laws of 2024, item 1616, as amended), there are also concentrations that are not subject to notification. This is a closed list, meaning that, apart from those listed below, all others must be notified. These include:

• Taking control of an entrepreneur with a turnover in the territory of the Republic of Poland below EUR 10 million (in each of the previous two financial years)
• Merger of enterprises when the turnover of each of them in the Republic of Poland is below EUR 10 million
• Establishment of a joint venture with a turnover of less than €10 million each
• Concentrations within the same capital group
• Temporary acquisition of shares by a financial institution for the purpose of resale
• Temporary acquisition of shares to secure receivables
• Concentrations during bankruptcy proceedings (with few exceptions)

Turnover issue

Each participant in a concentration is required to report the turnover achieved in its last completed financial year, which means that the financial year is not the same as the calendar year. If an entrepreneur closes their financial year, for example, in July, they use data from the period from July of the previous year, not January to December. Conversely, if one entrepreneur uses a calendar year while another uses a shifted year, each uses its own, which is intended to prevent manipulation of reporting periods. According to Article 4, item 15 of the Act on Competition and Consumer Protection, turnover includes: revenue from the sale of goods and services generated by the entrepreneur, reduced by: value added tax (VAT), excise tax, and various rebates and discounts. In particular, it does not include financial income, gains from the disposal of fixed assets, or internal settlements between companies operating in the same group. Certain sectors have specific rules for calculating turnover. For banks, revenue is the sum of income from banking activities (interest, commissions) less certain costs. For insurers, turnover is gross insurance premiums less payments due. For investment and pension funds, it is management revenue. Two types of turnover are used when assessing the obligation to notify a concentration: global turnover, which includes the sum of the turnover of all concentration participants (and their capital groups), regardless of the country in which the turnover was generated; and turnover within the territory of the Republic of Poland, which is only the portion of turnover related to the sale of goods and services in Poland, sales imported into Poland, and activities conducted for Polish contractors. This turnover does not include exports from Poland or turnover generated outside the territory of the Republic of Poland. If a company generates turnover in a foreign currency, it is converted to euros at the average euro exchange rate announced by the National Bank of Poland on the last day of the previous calendar year. This rule applies to both turnover within the Republic of Poland and global turnover.

Community dimension

Concentrations with a Community dimension fall under the exclusive jurisdiction of the European Commission. There is a basic threshold, where the worldwide turnover of all participants must exceed EUR 5 billion, and the turnover in the European Union of each of at least two participants must exceed EUR 250 million, with the exception of the 2/3 rule (when each participant generates more than two-thirds of its turnover in a single country). This stems from Article 1(2) of Regulation 139/2004. Furthermore, Article 1(3) mentions an alternative threshold: the worldwide turnover must exceed EUR 2.5 billion; the combined turnover in at least three EU countries must exceed EUR 100 million, and the turnover in the European Union of each of two participants must exceed EUR 100 million.

Deadline for submission

An intended concentration must always be notified before the concentration is implemented. The most common prerequisites for an intended concentration include a conditional agreement, a letter of intent, a preliminary agreement, and a tender offer for shares (in the case of public companies). Draft agreements, management board statements, or press releases are not sufficient. Until the President of the Office of Competition and Consumer Protection (UOKiK) issues approval, the parties are required to refrain from implementing the concentration.

Course of proceedings

Concentration proceedings take an administrative form and can be divided into several stages. They begin with the submission of a complete notification by the interested parties to the concentration. These stages include:

• Submission of the notification and formal verification – after the notification is submitted to the Office of Competition and Consumer Protection (UOKiK) Headquarters, the following is checked: the completeness of data and documents; if they are missing, the President requests the entrepreneur to complete them (the deadline for issuing the decision is not counted until the notification is completed); after the notification is deemed complete, the proceedings are formally initiated.
• Concentration analysis (proper procedure) – after receiving the notification, the President of the Office of Competition and Consumer Protection (UOKiK) conducts a market analysis, assesses the position of the concentration participants, and determines whether such a concentration could significantly restrict competition. Furthermore, the President may request additional information from the concentration participants, contractors, other entrepreneurs present in the market, state authorities, or foreign institutions.
• Decision – the proceedings may usually end in two stages; If the concentration does not raise any major doubts, the President of the Office of Competition and Consumer Protection (UOKiK) gives his consent or discontinues the proceedings (if the transaction is not subject to notification) – this usually lasts up to one month; on the other hand, if an in-depth analysis is needed, the proceedings may last up to 4 months in total, the UOKiK may examine the market more thoroughly and this occurs in situations where the parties have high market shares, the markets are highly concentrated and there is a risk of dominance emerging
• Decisions – The President of the Office of Competition and Consumer Protection (UOKiK) may: issue consent to the concentration, issue conditional consent (i.e., impose certain measures to ensure its success: divestment of part of the assets, deactivation of the brand, guaranteeing access to infrastructure), and prohibit the concentration (if such a concentration could clearly lead to a restriction of competition). The decision is delivered to the parties, and its content is published on the UOKiK website.
• Appeals – An appeal against a decision may be filed with the Court of Competition and Consumer Protection, and then with the Court of Appeal. Filing an appeal does not suspend the enforcement of the decision unless the Court issues a ruling to that effect.
• Sanctions – Until consent is obtained, entrepreneurs cannot carry out a concentration (standstill obligation), and the violation of such an obligation may result in a fine of up to 10% of turnover and invalidates the effects of the concentration

Summary

Notifying an intended concentration is an extensive procedure that includes: assessing turnover thresholds (both domestically and globally), analyzing the transaction’s impact on the Polish market, identifying the parties to the process (both who participates and who is obligated to notify the intention), and considering numerous exceptions and specific rules. This clearly defined procedure for intended concentration notification prevents the creation of structures aimed at restricting competition. Furthermore, it facilitates market monitoring by the Office of Competition and Consumer Protection (UOKiK) and, in larger-scale concentrations, by the European Commission.

Artykuł Business concentrations – EU and Polish rules pochodzi z serwisu KIELTYKA GLADKOWSKI LEGAL | CROSS BORDER POLISH LAW FIRM RANKED IN THE LEGAL 500 EMEA SINCE 2019.

In the Polish legal system, competition protection regulations, particularly the Act of 16 February 2007 on Competition and Consumer Protection provide for the possibility of imposing financial penalties not only on enterprises but, since the amendment to the 2015 Act, also on individuals managing enterprises. In recent years (in fact, such a sanction was first applied in 2020), the President of the Office of Competition and Consumer Protection (UOKiK) has been increasingly using this mechanism. This article will discuss key legal provisions concerning the liability of managers and the practices of administrative bodies in imposing sanctions.

Legal basis

The legal basis for imposing financial penalties on business managers is Article 106a of the Act on Competition and Consumer Protection. This regulation allows for the imposition of a financial penalty on a manager in the event of an enterprise deliberately allowing a violation of the prohibition on anticompetitive agreements. This penalty is administrative in nature, but the Act sets a maximum limit of PLN 2 million or PLN 5 million for financial institutions. The President of the Office of Competition and Consumer Protection, when determining the amount of the penalty, takes into account the degree of influence of the manager’s behavior and the revenue they generated, allowing for appropriate adjustments to the specific circumstances of the case.

To date, fines imposed on managers have typically not reached the maximum amount of PLN 2 million. The highest fines to date have involved cases involving cartels in the automotive market, such as a PLN 495,000 fine for a manager’s participation in price collusion^[1]. In practice, the amount of the fine depends on factors such as the intent of the act and the impact of the violation, and the sanctions vary, taking into account the specific circumstances of the violations and the degree of intent of the managers’ actions.

The regulations also allow for the possibility of imposing a fine on a manager who intentionally violates the anti-competitive prohibition. This rule complements Article 6a of the Act, which specifies the principles of liability of individuals for the anti-competitive activities of their enterprises. There is the convergence of the prerequisites for liability and the conditions for imposing a fine, such as intentionality and permitting the violation. The procedure for imposing a fine on an individual is closely linked to the simultaneous punishment of the entrepreneur – without sanctions for the enterprise, the manager cannot be punished.

Imposing such a penalty on a manager is only possible if the company is also penalized for the same violation in the decision. However, if a manager has already been penalized as an entrepreneur, they cannot be penalized again for the same offense. The regulations also provide for the possibility of immunity from liability for managers who cooperate with competition authorities under a leniency program. To benefit from such immunity, the person must actively support the proceedings and submit an appropriate application before the President of the Office of Competition and Consumer Protection (UOKiK) notifies them of the initiation of proceedings.

In the case of an application for leniency submitted to the competition authority of another EU Member State, the President of the UOKiK may request from that authority the information needed to confirm that the conditions for exemption from the penalty are met.

Definition of a manager

Under the Competition and Consumer Protection Act, a manager includes not only members of the management board of an enterprise but also other individuals who have a real influence on economic decision-making. The formal definition of “manager” contained in Article 4, Section 3a of the Competition and Consumer Protection Act refers to a person who manages an enterprise, which includes, in particular, individuals who hold managerial positions or are members of the enterprise’s management body. This means that the Act does not directly list all possible roles, but rather formulates it more flexibly, using the phrase “in particular”, meaning that the list of managers is open-ended. This formulation paves the way for the interpretation that liability may also apply to other individuals who de facto manage the enterprise, although they are not necessarily formally members of the management board.

The Act, therefore, does not limit the definition to management board members, but rather refers to those managing the company. This means that other individuals performing important decision-making functions, such as directors, chief accountants, procurators, or supervisors, may be considered managers. In practice, such individuals have a real influence on the company’s operations, and their actions may constitute grounds for liability, even if they do not formally serve on the management board. The judgment of the Court of Competition and Consumer Protection of April 18, 2019 (XVII AmA 7/17) (Judgment of the Court of Competition and Consumer Protection in Warsaw of April 18, 2019, XVII AmA 7/17, LEX No. 2669187) indirectly indicates the potential liability of individuals managing an enterprise or having a real influence on its decisions due to the manner in which the disclosure obligations imposed on entrepreneurs are handled. In the justification of the judgment, the Court emphasizes that the enterprise – represented by the management board or persons with decision-making powers – is obligated to provide information at the request of the President of the Office of Competition and Consumer Protection. Although the requests are formally addressed to the company, failure to comply depends on the actions or omissions of the individuals managing the enterprise. The Court notes that an entrepreneur, including its management board, is obligated to timely provide the requested documents, and failure to comply with this obligation leads to the imposition of sanctions.

In a situation where natural persons who are formally or actually responsible for managing an enterprise fail to fulfil such obligations, then based on a broad interpretation of the provisions of the Act on Competition and Consumer Protection (Article 106a of the Act), the President of the Office of Competition and Consumer Protection may also hold these persons liable. Although the judgment concerns the liability of the company as an entity, individuals with a real influence on the company’s operations, such as board members, directors, or procurators, may be held liable if their actions or omissions lead to a breach of obligations imposed on the company. The judgment indicates that reporting obligations arise from statutory provisions, and failure to comply with them—even indirectly, by decision-makers—may lead to sanctions.

Types of violations

Violations that may result in a fine for a manager are closely related to the prohibition of anticompetitive practices set forth in Articles 6 and 9 of the Competition and Consumer Protection Act. Article 6 of the Competition and Consumer Protection Act prohibits restrictive agreements, such as price fixing, market or customer allocation agreements, or limiting market access. Article 9 of the Competition and Consumer Protection Act prohibits the abuse of a dominant position by enterprises, which may manifest itself through unfair price increases, production restrictions, or discrimination against contractors.

In practice, the most frequently punished offenses are price fixing and the setting of minimum selling prices, which restrict market competition. Managers who directly influenced such practices or, through their inaction, tolerated such actions may be subject to financial penalties. A key element of these cases is demonstrating that the violation was intentional—that the manager knowingly initiated or tolerated the anticompetitive practice while being aware of its negative impact on the market.

Financial sanctions

As previously mentioned, the maximum fine that can be imposed on a manager is PLN 2 million. Importantly, the fine is determined proportionally to the scale of the violation and the manager’s individual responsibility. The authority assesses both mitigating circumstances, such as cooperation with the Office of Competition and Consumer Protection (UOKiK) under leniency programs, and aggravating circumstances, such as long-term participation in anti-competitive practices.

Leniency programs

The Competition and Consumer Protection Act also provides for the possibility of benefiting from a leniency program, which allows individuals and businesses to receive a more lenient penalty in exchange for voluntarily reporting a violation and cooperating with antitrust authorities. Pursuant to Article 113 of the Competition and Consumer Protection Act, the first business or individual to notify the Office of Competition and Consumer Protection (UOKiK) of the existence of a cartel or other anti-competitive agreement may receive a partial or complete waiver of the penalty. However, this is conditional upon providing complete information and evidence that will enable the authority to conduct an effective investigation.

For individuals, participating in a leniency program can be particularly beneficial, as if they become aware of violations and voluntarily report them, they can avoid very high fines. In practice, this means that managers who cooperate with authorities in a timely manner can significantly mitigate their potential financial consequences.

Administrative liability and civil liability

Fines imposed by the President of the Office of Competition and Consumer Protection (UOKiK) are administrative in nature, meaning they are not strictly criminal sanctions. However, in some cases, a manager’s actions may also lead to civil liability. An example would be a situation in which a competing enterprise has suffered losses due to anti-competitive conduct and decides to pursue compensation in a civil court. Under Article 415 of the Civil Code, a manager who committed an infringement may be obligated to compensate for the harm caused by anti-competitive conduct. In turn, injured enterprises may also pursue compensation under private enforcement, which allows for the possibility of pursuing civil claims for competition law violations.

Contractual action – a key element of responsibility

In the context of managerial liability, a key element is demonstrating intent. Pursuant to Article 106a, Section 1 of the Act on Competition and Consumer Protection, a fine may be imposed on a managerial person only if the violation of competition law was intentional. In practice, this means that the President of the Office of Competition and Consumer Protection must prove that the person knowingly caused the violation or failed to take appropriate measures to avoid it. Administrative liability in this case requires precise documentation that the manager was aware of the illegal practices and knowingly made decisions leading to the violation.

Summary

Modern competition law clearly extends liability for anticompetitive practices to corporate managers. Article 106a of the Competition and Consumer Protection Act provides the President of the Office of Competition and Consumer Protection with the tools to impose severe financial penalties on individuals who had a real impact on decisions leading to a violation of competition rules. These sanctions are intended to increase the effectiveness of competition protection by deterring managers from engaging in practices that restrict the free market. At the same time, the availability of leniency programs, such as leniency programs, encourages cooperation with antitrust authorities, which can benefit both individuals and businesses.

^[1]https://decyzje.uokik.gov.pl

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