In a recent judgment, Poland's Supreme Administrative Court (NSA) gives cause for optimism for anyone who is carrying out online alcohol sales or considering such sales.
Online alcohol sales have been a hot topic in Poland for many years. The growth of the e-commerce sector, further accelerated by the COVID-19 pandemic, has caused most stores – not just major retailers – to institute home-delivery shopping. The legality of selling alcohol over the Internet, however, has not been clear and as a result some retailers have not opted for this form of sales.
In the debate on the legality of alcohol home-delivery sales, there have been many voices over the years, both from the administrative authorities, which grant permits, and from the administrative courts. In the past, the authorities have revoked permits in connection with online sales, resulting in the inability to obtain a permit for a further three years. A Supreme Administrative Court (NSA) judgment of April 2016 (ref. II GSK 2566/14) also indicated the illegality of such activity.
In a judgment of 8 September 2022 (ref. II GSK 2034/18), however, the NSA gives cause for optimism for anyone carrying out online alcohol sales or just considering such sales.
The above NSA ruling relates to a decision to revoke a Cracow-based specialist shop's permit to sell alcohol because it also sold alcohol through its website and allowed alcohol products to be delivered to the homes of buyers. The permit was revoked as a result of an inspection conducted by administrative authorities in the form of an anonymous purchase (i.e. an official ordered alcohol with home delivery and documented the entire process).
The decision revoking the permit had already been overturned by a judgement of the Voivodship Administrative Court (WSA). However, as a result of a cassation complaint, the case was finally resolved by the Supreme Administrative Court, which dismissed the authority’s complaint, upholding the judgement of the Voivodship Administrative Court, which was favourable to the store.
The NSA and WSA pointed to the following circumstances when ruling in favour of overturning the decision to revoke the permit:
- The principle of freedom of business activity: the entity may act in accordance with the rule that what is not prohibited is permitted, and restrictions on the conduct of business must result from introduced laws (ustawa);
- The regulations governing the sale of alcohol do not contain any prohibition on sales by means of distance communication;
- The provisions of the Civil Code allow the place of sale (in this case a stationary shop) to be specified in the contract;
- As a rule, it makes no difference whether the person authorised to collect the order is a family member or a representative of a courier company.
According to the NSA and WSA judgments, an entity planning to sell alcohol over the Internet should consider the following in order to perform this activity legally:
- Establish in the Terms & Conditions of the sales agreement that the place of sale and performance of the contract is a stationary point of sale (i.e. the store);
- Introduce a requirement for the customer to register or create an account with the online store and provide personal and address information;
- Regulate the obligation to check the documents of the person who ultimately collects the alcohol;
- Impose an obligation on the deliverer to check the sobriety of the person collecting the alcohol.
Despite the positive tone of the latest NSA judgment, however, it should be noted that the NSA cannot analyse issues that were not raised in the charges and the issues raised in the charges did not cover all the issues relevant to online alcohol sellers. The NSA did not address, among other things, whether sales in the case of home delivery actually took place at the physical point of sale specified in the permit.
Significantly, all considerations to date allowing online alcohol sales in Poland have only applied to online shops that also operate a stationary business. One of the conditions for obtaining a permit for the retail sale of alcohol is to sell at a point of sale, which may be:
- a specialist store;
- a stall in a retail outlet; or
- another retail outlet where direct sales of alcohol are carried out.
For more information on the rules of selling alcohol in Poland, contact your CMS client partner or local CMS experts.