W sprawie potrzeby uregulowania umowy franczyzy w Polsce
Authors: Adamus Rafał 
Published: February 2023

This work presents, in the first place, topics relating to the notion of franchise agreement as an empirical type of contract, as well as the theoretical issue of contracts not regulated in statutory law. As for the substance of the legal relationship of franchise, attention is drawn to two issues. Firstly, even though Polish civil law does not regulate franchise agreements, the substance of the legal relationship of franchise is influenced by provisions of public law from the field of competition protection (antitrust law). This influence should be seen as significant. If franchise agreements are ever regulated in civil law, this will not mean that it will be permissible to ignore provisions of competition protection law when drafting the agreement’s specific contents. Secondly, the substance of the legal relationship of franchise – in accordance with Article 56 of the Civil Code – is shaped by the principles of community life and established customs, therefore codified ethical principles can also have certain influence on this substance. Further in the paper, attention is drawn to views about franchise agreements expressed in literature: their legal character is presented along with the parties’ rights and obligations, as well as typical provisions of franchise agreements. Finally, the principles of regulating franchise in foreign law are reviewed briefly. In this part, the author points out the so-called Federal Franchise Rule, applicable in US federal law, which may be a good inspiration for protecting the interests of franchisees in Polish law. The aim is, first of all, to draw attention to what business aspects of franchise are regulated. The second legal system selected for a brief presentation is the Brazilian one, because: (a) the Brazilian legislature introduced provisions on franchise in 2020; (b) simultaneously, the previously applicable provisions were improved, therefore legislative experience was taken into account. The conclusions from this analysis show that global standards in the field of regulation of franchise are well ahead of the Polish level of legislation. As a result of the analyses, an outline of franchise regulation is offered as a suggestion of what the law should be. Firstly, the idea of regulating franchise agreements as belonging to private law is presented. However, this regulation is not sufficient due to: (a) the actual imbalance between the franchisor (scheme organizer) and the franchisee; (b) the fact that the franchisee is an entrepreneur and cannot be covered by consumer protection; (c) the need to ensure protection as early as before a contract is entered into; (d) the need to prevent eliminating protection by choice of a different law. Secondly, there are suggestions of amendments that should accompany the regulation of franchise in the field of: introducing an obligation to provide the future franchisee with an adequately detailed prospectus of the franchisor, failure to discharge which will be treated as an act (tort) of unfair competition, classification of organizing a toxic franchise network as an act of unfair competition. Ascribing to the prospectus (which follows the model from foreign law) the feature of being important from the point of view of acts of unfair competition has a twofold aim: (a) it enables using legal instruments provided for in the provisions on competition protection; (b) it enables legal protection following from the absolute prohibition of infringing collective consumer interests (which is addressed in the following suggestion). Thirdly, amendments to public law are suggested. The powers of the President of the Office of Competition and Consumer Protection should be extended to include protection of collective interests of franchisees against, for instance, acts of unfair competition (regulating in private law) against franchisees. Such provisions would have a preventive function and – when needed – a repressive one. Measures taken by the President of the Office in the interest of franchisees would significantly remedy the imbalance between parties to franchise.