NEWAG – PLANNED OBOSCOLENCE?
n economic reality, there is the concept of “planned obsolescence”, which is a strategy of entrepreneurs aimed at producing goods with a limited lifespan. This strategy is aimed at forcing the purchase of a new product rather than repairing it. However, in addition to aging their products, manufacturers also use other tricks that de facto force the recipients of their products to continue using their services – e.g. after-sales.
A few days ago, the media reported that a team of hackers hired by one of the municipalities had discovered that the software of trains supplied by NEWAG contained a code that caused intentional failures. The reason for its introduction was to de facto force train customers to use the maintenance services of NEWAG. The company denied these reports. Information on this subject was provided by, among others, money.pl website
The Internet is full of statements about NEWAG’s potential liability if the rumors are confirmed to be true. Information on this subject was provided by, among others, Dziennik Gazeta Prawna.
The above-mentioned statements did not address the important qualification of NEWAG’s actions, i.e. the act of unfair competition consisting in limiting the right to market – contained in Art. 15 section 1 of the Act on Combating Unfair Competition.
According to it: 1. An act of unfair competition is hindering access to the market for other entrepreneurs, in particular by: 5) action aimed at forcing customers to choose a specific entrepreneur as a contractor or creating conditions enabling third parties to force the purchase of goods or services from a specific entrepreneur. 2. The act referred to in section 1 point 5, may consist in particular in: 1) significantly limiting or excluding the customer’s ability to make a purchase from another entrepreneur; 2) creating situations that result in third parties imposing on customers, directly or indirectly, the need to make a purchase from a given entrepreneur or from an entrepreneur with whom a given entrepreneur has a business relationship; 3) issuing, offering and implementing identification marks subject to exchange for goods or services offered by one entrepreneur or a group of entrepreneurs in a business relationship, in the circumstances indicated in point 1 or 2.
It is clear from the above that an action aimed at ensuring exclusivity in servicing sold vehicles meets the criteria of the above-mentioned tort. It eliminates other entrepreneurs from the market of services provided to these vehicles. Determining that the above-mentioned tort has been committed would, of course, require the relevant entrepreneur to file an individual lawsuit. In our opinion (assuming the truth of the allegations, such a claim would be justified.
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