Competition terms and conditions in Poland – how to legally organise a marketing competition?

Competition terms and conditions in Poland – legal basis

The legal basis for organising a competition in Poland can be found in Article 919 of the Polish Civil Code, which provides that “a person who, by a public announcement, promises a reward for performing a specified act is obliged to fulfil that promise“.

This provision concerns a unilateral declaration made by the person promising the reward, typically the organiser of the competition. As a result, the organiser becomes obliged to fulfil the promise and award the prize in accordance with the announced rules.

An important condition for such a public promise is its public nature. This means that the organiser’s declaration must be accessible to a wider audience, for example through publication online or by displaying it in a publicly accessible location, such as a shopping centre. Other forms of communication may also be used, including posters, leaflets, television broadcasts or online advertising.

The Polish Civil Code refers to the organiser’s promised performance as a “reward”, which will generally be a financial or other material benefit. The organiser therefore promises a prize, while participants perform a specified action in the hope of receiving it.

Practical example from Polish case law:

“In the case of a public promise, no agreement is concluded between the promisor and the participant; instead, the promisor performs a unilateral legal act. A participant’s acceptance of the terms and conditions of a promotional campaign does not result in the conclusion of any agreement between the participant and the organiser of the campaign” (judgment of the Polish Supreme Court of 28 January 2015, case no. I CSK 40/14).

Are competition terms and conditions mandatory in Poland?

There is no single general provision of Polish law that unconditionally requires written terms and conditions to be prepared for every marketing competition.

In the case of a traditional competition in which the winner is selected on the basis of knowledge, skills or an assessment made by a jury, written terms and conditions are therefore not formally mandatory in every case.

However, in practice, they should be prepared.

Competition terms and conditions provide the basic framework for defining the rights and obligations of both the organiser and participants. They can regulate, among other things:

• eligibility requirements,
• the method of entering the competition,
• winner selection criteria,
• prizes,
• deadlines,
• the complaints procedure,
• rights to submitted works,
• and the processing of personal data.

Clear rules reduce the risk of misunderstandings and disputes concerning the interpretation of the competition. They also help a foreign business operating in Poland demonstrate that the campaign has been organised in a transparent and professional manner.

Practical example from Polish case law:

“There is no doubt that a particular initiative may be regarded as a competition if it has appropriate competition terms and conditions. Such terms and conditions should clearly identify the organiser and participants of the competition, the prizes, the rules for selecting winners and the rules for awarding prizes to the winner or winners” (judgment of the Provincial Administrative Court in Warsaw of 3 February 2017, case no. III SA/Wa 34/16).

What should competition terms and conditions in Poland include?

A company organising a marketing competition in Poland should ensure that its competition terms and conditions are clear, understandable to participants, consistent and compliant with Polish law.

The exact provisions will depend on the structure of the campaign, but the following areas should generally be addressed.

Organiser’s details

The terms and conditions should identify the organiser and provide its relevant registration and contact details. For a Polish company, this may include its business name, KRS number, NIP tax identification number, REGON statistical number, registered office address and contact details. Where the organiser is a foreign company running a campaign in Poland, its details should allow Polish participants to clearly identify the entity responsible for the competition and to contact it if necessary.

Purpose and marketing nature of the campaign

The terms and conditions should explain the purpose and nature of the marketing campaign. This allows participants to understand why the competition is being organised and how it relates to the organiser’s promotional activities.

Conditions of participation

The terms and conditions should clearly define who may participate in the competition in Poland and under what conditions. The organiser should specify any eligibility criteria and identify categories of persons excluded from participation. Depending on the campaign, exclusions may concern employees of the organiser, their family members, competing businesses or minors where the competition is intended only for adults. Clear eligibility rules help reduce disputes between participants and the organiser.

Rules of participation

The organiser should clearly describe what participants must do to enter the competition. This may include registration, submitting an answer or creative work, completing a task or taking another action specified in the competition rules. The terms and conditions should also state all important dates, including:

• the opening date,
• the closing date,
• registration deadlines,
• submission deadlines,
• and other dates relevant to the competition.

The rules should be sufficiently clear for participants in Poland to understand what is required of them.

Prizes

The organiser should precisely describe the prizes available in the competition. This should include the type of prize, its value where relevant and any conditions that must be satisfied before the prize can be awarded. The rules should also explain how winners are selected. In many competitions, a jury or competition committee assesses participants’ entries according to predetermined criteria. The terms and conditions may regulate the composition or operation of such a body. The decision may also be entrusted to a third party, provided that this is clearly stated in the competition announcement and rules.

Organiser’s duties and liability

The terms and conditions should define the organiser’s principal responsibilities towards participants. Depending on the nature of the campaign, these may include:

1. participant safety – taking reasonable measures to ensure participants’ safety during the event;
2. providing announced prizes – awarding prizes properly and within the stated time limits;
3. notification of changes – informing participants of material changes to the competition or its terms and conditions;
4. compliance with Polish law – conducting the competition in accordance with applicable legal requirements;
5. support and communication – providing an appropriate method for participants to raise questions or concerns.

Personal data and GDPR

A business running a competition in Poland will often process participants’ personal data. The relevant documentation should therefore specify, where applicable:

• what personal data is collected,
• how it is collected,
• the purposes for which it is processed,
• and the rights available to participants.

The organiser should also ensure that the processing of personal data complies with the GDPR and other applicable data protection requirements.

This can be particularly important for foreign companies running campaigns addressed to individuals in Poland.

Complaints procedure

The competition rules should describe how participants can submit complaints concerning the course of the competition, its rules or its outcome. The complaints procedure may specify:

1. how complaints can be submitted – for example by e-mail, online form or another communication channel;
2. the deadline for submitting complaints;
3. how complaints will be considered;
4. how participants will be informed of the outcome;
5. whether any further review or appeal procedure is available.

Final provisions

The final provisions should regulate matters such as:

• amendments to the terms and conditions,
• the date on which the rules enter into force,
• interpretation of the terms and conditions,
• and the resolution of disputes.

Acceptance of the terms and conditions

Participants should be informed of the rules governing the competition and should clearly accept them before participating.

The organiser should therefore ensure that the method of entering the competition allows participants to familiarise themselves with the terms and conditions.

Contact details

Participants should have access to contact details allowing them to raise questions concerning the competition rules, the course of the campaign or the awarding of prizes.

Depending on the organiser, this may include a correspondence address, e-mail address or telephone number.

Using participants’ images in marketing campaigns in Poland

Another issue that organisers should consider is the use of participants’ images for marketing purposes.

If an organiser intends to publish photographs or recordings from an event in which individual participants can be identified, the use of their image must be assessed under the Polish Act on Copyright and Related Rights.

In many cases, the organiser will need to obtain the participant’s consent to disseminate their image.

Appropriate provisions may be included in the competition documentation so that participants know how their images may be used for promotional purposes.

There are also situations in which an individual’s image forms only part of a larger scene, such as a public event. Whether consent is required in such circumstances depends on the conditions provided for under Polish law.

Practical example from Polish case law:

“The photographs challenged by the claimant, which also included the claimant’s image, depicted pupils from particular classes at different stages of education and were in no way focused on the claimant. Therefore, neither the user of the portal who uploaded the photograph nor the defendant providing hosting services was required to obtain the claimant’s consent to publish the photograph containing, among others, his image” (judgment of the Court of Appeal in Wrocław, 1st Civil Division, of 30 January 2014, case no. I ACa 1452/13).

Marketing competition or promotional lottery in Poland?

One of the most important issues for a business planning a promotional campaign in Poland is determining whether the campaign is genuinely a competition or should instead be classified as a promotional lottery.

Promotional lotteries are subject to the Polish Gambling Act of 19 November 2009 and a different regulatory regime. Even where the organiser describes an initiative as a “competition”, the actual mechanism used to select winners may determine its legal classification. Under Polish law, promotional lotteries are games of chance in which participation takes place through the purchase of goods, services or another form of proof of participation and the organiser offers cash or non-cash prizes. Organising such a lottery involves additional formal requirements and requires an appropriate permit.

For a foreign company planning a marketing campaign in Poland, the distinction is therefore important before the campaign is launched. The key difference between a competition and a promotional lottery is the presence of an element of chance. In a genuine competition, the result should depend on factors such as:

• participants’ knowledge,
• skills,
• creativity,
• or an assessment made according to specified criteria.

By contrast, if the result depends on luck or chance, the campaign may fall within the Polish rules governing games of chance.

The organiser’s intention or the name given to the campaign is not decisive. A promotion described as a “competition” may still be treated as a promotional lottery if its actual mechanism contains the relevant elements of chance.

Practical example from Polish case law:

“In the Court’s view, a game of chance exists where, in addition to various other possible factors, chance affects the outcome as a particular and characteristic feature of the game, regardless of the stage at which that chance occurs or how significant it is. If, under the rules of a game involving cash or non-cash prizes, a random factor is present and affects the outcome of the game, the game constitutes a game of chance within the meaning of the Gambling Act” (judgment of the Provincial Administrative Court in Warsaw of 23 January 2014, case no. VI SA/Wa 2187/13).

“Accordingly, introducing an additional requirement to answer a question does not automatically mean that the game is not a game of chance. In such a situation, it must be considered whether the introduction of an element of knowledge merely creates the appearance that chance has been eliminated, where the final outcome of the game is nevertheless not determined by the participant possessing a particular type or level of knowledge that is objectively assessed and verified and has a decisive effect on the result of the competition, but instead depends on chance – a factor beyond the participant’s control” (judgment of the Supreme Administrative Court of 4 December 2014, case no. II GSK 1296/13).

Checklist before launching a marketing competition in Poland

Before launching a competition addressed to participants in Poland, the organiser should verify, in particular:

1. competition terms and conditions – whether they clearly identify the organiser, eligible participants and excluded persons, participation requirements, deadlines, prizes, complaints procedure and the rules governing amendments or cancellation;
2. winner selection mechanism – whether the result depends on knowledge, skills, creativity or assessment by a jury according to specified criteria, rather than chance. A random mechanism may result in the campaign being classified as a promotional lottery in Poland;
3. GDPR matters – whether the legal basis and purposes of processing have been identified, together with the scope of personal data collected, the retention period and the information provided to participants;
4. rights to competition entries and participants’ images – whether the rules regulate the use of submitted works, licences or transfer of economic copyright and the publication of participants’ and winners’ images;
5. tax matters – whether the taxation of prizes has been considered, including who is responsible for the relevant tax obligations and whether any exemption may apply.

When should you consult a Polish lawyer before launching a competition?

Marketing competitions may appear relatively straightforward to organise, particularly where a company has already conducted similar campaigns in other countries.

However, a campaign conducted in Poland may be subject to Polish legal requirements that differ from those applicable in the organiser’s home jurisdiction.

A legal review is particularly advisable where the organiser is uncertain whether the campaign mechanism contains an element of chance. If it does, the initiative may be treated as a promotional lottery under Polish law and may be subject to a separate regulatory regime and permit requirement.

Legal advice may also be appropriate where purchasing a product or service is a condition of participation, or where the organiser intends to use competition entries, other submitted content or participants’ images in advertising.

In such cases, Polish rules concerning personal data, copyright, image rights and consumer protection may need to be taken into account.

Consulting a lawyer may also be advisable for competitions:

• directed at consumers or minors,
• offering prizes of significant value,
• conducted simultaneously in Poland and other countries,
• or organised through social media, including campaigns involving collaboration with influencers.

Reviewing the campaign before it is announced makes it possible to structure its mechanism, terms and conditions and supporting documentation appropriately for the Polish market and to reduce the risk of conducting the promotion in breach of applicable law.