Browse topics

• Governing law

  Name	Law or Code?
  The Code of Ethics in Advertising of the Advertising Council (Rada Reklamy)	Code
  The Code of Ethics in Direct Marketing of the Polish Marketing Association - SMB (Polskie Stowarzyszenie Marketingu - SMB)	Code
  The Civil Code of 23 April 1964 (Journal of Laws 2018, item 1025 as amended)	Law
  The Gambling Act of 19 November 2009 (Journal of Laws 2018, item 165)	Law
  The Consumer Rights Act of 30 May 2014 (Journal of Laws 2017, item 683, as amended)	Law
  The Act on Rendering Services by Electronic Means of 18 July 2002 (Journal of Laws 2017, item 1219)	Law
  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation or GDPR)	Law

  Last modified 14 Jan 2019

• Extra-territoriality

  Under Polish law, regulation of prize promotions is very limited. The Polish Civil Code states only that a person that has promised a reward for the performance of a particular act by a public announcement to an unspecified number of people is obliged to keep the promise. There are no other specific legal regulations regarding prize promotions (unless the promotion is considered to be a lottery or other game set forth in the Gambling Act in which case additional obligations apply).

  However, consumer law and data protection law should be taken into consideration. Moreover, if the prize promotion is operated online, the Act on Rendering Services by Electronic Means should also be also taken into consideration.

  In relation to prize promotions which are operated online and outside the Polish jurisdiction, the Polish Act on Rendering Services by Electronic Means should not generally apply. According to the relevant provision of this regulation, the provision of electronic services is subject to the law of the member state of the European Union in which the service provider is a resident. However, there are some exceptions to this general rule: for example, irrespective of the location of the service providers, when a prize promotion is directed to Polish consumers, then the Polish consumer law determined in separate legal acts applies. Therefore, the terms and conditions of the prize promotion must be in line with the Polish Act on Consumer Rights and the Polish Civil Code's provisions regarding business to consumer relations.

  Furthermore, the GDPR applies to the terms and conditions of the prize promotion if the data controller of the participants' data is an entity located in the EU. The entities based outside the EU will also be obliged to comply with the the GDPR if the processing activities relate to the offering of goods or services to individuals in the EU.

  Last modified 14 Jan 2019

• Skills competitions

  Yes, under the following circumstances:

  • The winner must be chosen on the basis of skills (i.e. the best work or act), and not on the basis of chance. If the conditions for winning have been fulfilled by several persons independently, each of them shall be entitled to a full prize, unless only one prize has been promised. If only one prize has been promised, the first person who comes forward to claim the prize shall receive it; and where several persons come forward at the same time – the person who first fulfilled the conditions for winning. Additionally, a public promise of a prize for the best work or for the best act is ineffective if it does not specify the period in which the prize may be claimed. The above rules stem from the provisions of the Polish Civil Code.
    
    Even if a promotion contains elements of skill but the final result is determined on the basis of chance, this would likely be considered a lottery and official approval (by public authority) would be required. Elements of chance are acceptable as long as they are not decisive as to the final decision about the winner (e.g. it is acceptable that at the first stage of the promotion a limited number of participants are chosen by a draw if the final results regarding the winner are based on skill).
    
    
  • Terms of the prize promotion should be notified to the participants prior to their participation in the promotion.

  Last modified 14 Jan 2019

• Prize draws

  Not without a permit. Namely, if a prize promotion includes an element of chance in the selection of the winner, it may be considered to be a lottery or a promotion lottery, which requires obtaining an official permit under the Gambling Act.

  Under Polish law, a game will be deemed to be a lottery where the outcome is significantly dependent on chance (the main condition), the prize is either cash or a physical prize (there is no legal definition of a physical  prize under the Polish law, however a prize is considered to be physical if it is neither cash nor its equivalent (e.g. gift certificates, vouchers etc.); thus, for instance physical prizes are cars, books, trips etc.), and participants purchase goods, services or another game ticket to enter the lottery.

  Last modified 14 Jan 2019

• Selection of winners

  There are no specific legal requirements for the selection of winners and the award of prizes.

  However, the entity organizing the contest must determine the rules for selecting winners and awarding prizes. For skills competitions, the terms should also include the criteria for assessing the participants' skills.

  Last modified 14 Jan 2019

• Judges

  There are no particular requirements in relation to judges or judging in skills competitions. The evaluation of whether and which work or act deserves the reward is made at the competition organiser's' discretion unless the T&C's of the competition (the "reward promise" under the Polish Civil Code) stipulate otherwise. The criteria and mechanism for judging must be notified to the participants before they enter the promotion.

  Last modified 14 Jan 2019

• Prizes

  There are no specific legal restrictions on the prizes awarded, unless - based on general regulations - economic circulation of a particular item/service is excluded or restricted. In addition, the terms of the prize promotion should determine the amount, value and type of the prize, as well as information on whether it is possible to receive a cash equivalent of the prize instead of the prize itself.

  Last modified 14 Jan 2019

• Registration requirements and fees

  Registration Requirements

  There is no requirement to register prize promotions. In case of promotion lotteries, the organizer is obliged to obtain a permit, subject to a payment.

  Fees/Taxes payable

  The tax consequences must be determined on a case by case basis, as different types of the prize promotions are subject to different tax consequences - especially if a given prize promotion is considered to be a 'premium sales program'. Taking into account that in many cases also the intermediary companies are engaged in organizing prize promotions, determining the tax aspects of such promotions is a very complex issue. At the same time, tax consequences shall be determined not only from the perspective of the company organizing the promotion, but also from the perspective of the individual receiving a prize – as some prizes are subject to Personal Income Tax Law (and the company giving away the prize may be considered as a tax remitter).

  From the perspective of a company organizing the prize promotions – the following aspects of the transaction shall be taken into account:

  • Whether the cost of the promotion can be considered as a tax deductible cost (in most cases – yes, they can);

  • Whether the input VAT on expenses incurred in relation to promotion can be deducted from the output VAT;

  • The prize obtained by a given individual is subject to personal income tax or is exempted from taxation, and consequently, whether the company organizing the game is responsible for withholding tax (and in practice) economically paying any tax.

  The above issues, especially the one related to Personal Income Tax, must be verified before organizing the prize programme – as, in practice, the tax issue may influence the prize amount. In Poland, if a prize is not covered by the exemption from Personal Income Tax (i.e. for a specific prize programme, the prizes of value lower than approx. EUR 470 are exempted from PIT), the company organizing the prize promotion usually gives additional prizes in cash to cover the Personal Income Tax).

  Last modified 14 Jan 2019

• Other local requirements

  The promoter is obliged to respect the terms of the prize promotion notified to the participants. These terms cannot be, generally, changed during the promotion.

  The promoter’s name and address must be notified to the participants.

  There are also some restrictions regarding prize promotions in other legal acts, e.g. it is forbidden to organize prize promotions conditional on the purchase of tobacco products.

  Last modified 14 Jan 2019

• Timing

  There are no special requirements in this regard.

  Last modified 14 Jan 2019

• Translations

  Yes.

  The terms and conditions and other documents needed to enter the prize promotion must be translated to Polish when the prize promotion is directed to consumers.

  Last modified 14 Jan 2019

• Penalties for non-compliance

  If the prize promotion is considered to be a lottery, the party that organizes it without a permit must pay a penalty equal to 5 times the amount of a permit fee, which equals in total 50% value of the prize pool. In addition to the penalties imposed on the entity organizing the lottery, the Gambling Act provides for sanctions for individuals holding managerial positions – the relevant authority (head of the customs and tax office) may impose a fine up to approximately EUR 23,000.00 (approx. US$25,800) for organising gambling games (including lotteries) without a concession, permit or required registration. Furthermore, under the Fiscal Penal Code, running or organizing a lottery contrary to the law or a permit is subject to a fine (maximum fine = approximately EUR 1,636,363.6 (approx. US$1,833,000) – according to the current regulations and fine amounts applicable in 2019).

  Finally, there is the possibility that the personal data processing aspects of the promotion could breach GDPR, which has maximum fines of up to the higher of:

  • €20 million (approx. US$22.4m); or
    
    
  • 4% of the promoter’s worldwide annual revenue

  Last modified 14 Jan 2019

• Restrictiveness of regulations

  Under Polish law there are a limited number of restrictions and formal requirements regarding the organizing of prize promotions. Therefore, most prize promotion mechanics are allowed (provided the promotion is not considered as a lottery or another gambling game regulated in the Gambling Act).  However, GDPR has introduced various obligations around processing personal data which have significant application to prize promotions (e.g. use of submissions including personal data, winner publicity, etc.).

  Last modified 14 Jan 2019

• Regularity of sanctions

  No information publicly available.

  Last modified 14 Jan 2019

• Key contacts
  

  Ewa Kurowska-Tober

  Partner DLA Piper Giziński Kycia sp.k. [email protected] T +48 22 540 7402 View bio

  

  Magdalena Koniarska

  Associate DLA Piper Giziński Kycia sp.k. [email protected] T +48 22 540 78 19 View bio