Ticketing terms under scrutiny as UEFA face defeat in Poland over “abusive” EURO 2012 policy

Published 15 July 2014 | Authored by: Karol Laskowski LLM, Alex Haffner
Whilst the EURO 2012 tournament in Poland and Ukraine is now something of a distant memory, particularly with attention focussed on World Cup Brazil, UEFA has been fighting a rear guard action to defend its ticketing policy for the 2012 tournament. Judgments by the Polish courts may have a significant bearing on the Ts&Cs that UEFA's employs for future tournaments.
In two previous decisions, the Polish Court of Competition and Consumer Protection (CCCP) has stated that the ticketing terms applied by UEFA to Polish customers for EURO 2012 included a number of “abusive clauses” which violate Polish consumer rights guaranteed under the Polish civil code.1
 
The story begins in August 2011 when the President of the Office of Competition and Consumer Protection (OCCP) filed a lawsuit against UEFA to a Polish CCCP2.  The President of the OCCP argued that 25 clauses3 within the EURO 2012 ticketing terms were “abusive4, that is they shaped the rights and duties of the consumer in a manner contrary to good practice and amounted to a gross violation of the consumers 'interests. The charge sheet of abusive clauses5 included particular terms that specified:
  • choice of Swiss law; the Ts&Cs were subject to Swiss law and to be interpreted in accordance to the Swiss law exclusively;
    • the OCCP claimed that this clause may deprive the customer of its rights granted under the Polish law;
  • the exclusive jurisdiction of the Swiss courts; under the Ts&Cs any disputes resulting from the Ts&Cs should be recognized by the courts in Nyon, Switzerland, however UEFA was also granted a right to initiate the proceeding in the place of residence of the customer;
    • the OCCP stated that, in accordance with the Polish civil code, any clause that excludes jurisdiction of Polish courts in the relations with the customer is abusive;
  • exclusion of UEFA’s liability for late delivery of tickets; under the Ts&Cs the tickets were to be distributed 2 weeks before the games, provided that UEFA had received payment, but UEFA excluded any liability for late delivery of the tickets and the customer’s right to receive any duplicate of the ticket(s) concerned;
    • the OCCP argued that under the Polish civil code any clause that excludes or limits liability for non-performance of the contractual obligations by the customer’s contractor is abusive;
  • UEFA’s right to make changes in the hours, dates and venue for the games as a consequence of any unforeseen events, including Force Majeure, problems related to security, or a decision by FIFA’s or any other relevant authorities,
    • the OCCP stated that in accordance to the Polish civil code any clause that gives customer’s contractor right to unilaterally change the terms of the agreement without proper justification is abusive;
  • a one-sided right for UEFA to change the seat allocated to the customer during the game without giving any reason; under the T&Cs every ticket-holder should take the seat indicated on the ticket, however every ticket-holder is obliged to change its seat upon request of the event safety/protection personnel, stewards or police;
  • as above the OCCP argued that  any clause that gives customer’s contractor right to unilaterally change the terms of the agreement without proper justification is abusive; and
  • UEFA's right to claim a contractual penalty in the amount of EUR 5000 for any breach of the Ts&Cs; under the Ts&Cs in case of any breach of the Ts&Cs the consumer was obliged to pay a non-negotiable contractual penalty of five thousand euro for the purpose of covering damages incurred and the commitments made under the Ts&Cs and any relevant laws;
    • the OCCP argued that such an excessive contractual penalty was abusive.
At first instance the CCCP agreed with most of the concerns raised by the President of the OCCP and found that 19 of the aforementioned clauses were abusive, including the choice of Swiss law provision. UEFA subsequently appealed that decision.
 
As a result of the appeal6 from UEFA the CCCP on 26 April 2013 only insubstantially revised the judgment of the court of first instance. However, there was some measure of success for UEFA in that the CCCP agreed that Swiss law could apply to UEFA's contracts with Polish customers, provided those customers would not thereby be deprived of the key rights granted under the local law.
 
The final outcome of the court proceedings is as yet unknown as the case is still to be determined by the Supreme Court in Poland. Nevertheless, it seems very unlikely that UEFA will be fully successful in overturning the decisions of CCCP. If so, the terms employed by UEFA to sell tickets for future tournaments will need to be adjusted to the judgment of the Polish courts, at least to the extent that UEFA offers tickets to Polish customers.  No doubt, UEFA will also need to reflect the concerns raised during the Polish court process when offering their services in other countries and localize respectively its terms and conditions to local laws.  Particularly interesting is the extent to which it can continue to rely on Swiss law given the courts' assessment on that issue.
 
In UEFA’s defense, it must be said that the Polish consumer protection law is very tricky when it comes to the recognition of the abusive clauses. The notion of abusive clause is difficult to define and the Polish civil code includes only a list of examples of such clauses (in particular these to which the President of the OCCP referred to above).  Based on these examples it is rather obvious that choice of foreign jurisdiction in business-to customer relations may not be allowed, but when it comes to other specific terms (e.g. terms of payments for tickets) the position is less clear. To date, the Polish CCCP have already entered over five thousands abusive clauses to the Register of Prohibited Clauses7. Those clauses which have been found abusive by a final decision of the CCCP and entered into the Register of Prohibited Clauses cannot be used in relations with consumers and - if they are used – it may be regarded as a practice infringing collective consumers interests under the Polish act as of 16 February 2007 on protection of consumers and competition which could be subject to a fine of up to 10% of the company’s revenue. It undoubtedly requires a great deal of legal experience and understanding of the OCCP approach to screen agreements and regulations against such clauses.
 
An interesting question is the extent to which this case will inform UEFA (and other tournament organisers') ticketing policies in the future, particular if the event in question takes place in a country such as Poland with a strong tradition of enforcing consumer protection legislation.
 

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About the Author

Karol Laskowski LLM

Karol Laskowski LLM

Karol is an Advocate and Senior Associate at Dentons’ Warsaw office.
 
He is an expert in the technology and media sectors. He advises to major broadcasters, cable and satellite operators, audio-visual producers, game producers and telecoms. He advises in particular on legal compliance and rights clearance matters.
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Alex Haffner

Alex Haffner

Alex is a Partner in the Commercial, Sports and IP Team at Fladgate LLP, specialising in the sports, technology and media sectors.

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