The NSA allows the sale of alcohol over the Internet
The Supreme Administrative Court (NSA), in a judgment dated September 8, 2022 (case ref. II GSK 2034/18), dismissed the cassation appeal of the SKO (Local Government Appeal Board) in Krakow and upheld the judgment of the Regional Administrative Court (WSA) in Krakow overruling the decision of the SKO on withdrawing the permit for the sale of alcoholic beverages due to their sale on the Internet. The judgment is final.
Thus, the NSA allowed the sale of alcohol via the Internet, in case the seller has the appropriate permit for sale of alcoholic beverages at a certain place of sale.
The existing line of jurisprudence
To date, the administrative courts have assumed that the sale of alcoholic beverages over the Internet is impermissible. On the one hand, they have argued that the legislator did not explicitly provide in the provisions of the Act on Upbringing in Sobriety and Counteracting Alcoholism (the “Act”) for the possibility of selling alcohol over the Internet, limiting the scope of permission to sell alcohol to a specific point of sale. Thus, a broad interpretation would be inconsistent with the purpose of the Act, which is to limit the availability of alcohol (the NSA judgment of April 14, 2011, case ref. II GSK 431/10). It was also argued that alcoholic beverages are considered to be things specified as to their kind (rzeczy oznaczone co do gatunku) and therefore the execution of the concluded contract of sale takes place at the place where the delivery of these things takes place – the moment of delivery of the purchased goods to the purchaser determines at what place the contract resulting in the transfer of ownership of the thing is executed. In cases where the delivery of the items occurred, for example, in the consumer’s apartment, the courts considered that the sale took place outside a store with a sales permit. Meanwhile, the performance of business activities within the scope of the permit may take place only at the place specified in the permit (the NSA judgment of April 21, 2016, case ref. II GSK 2566/14).
Place of conclusion of the contract of the thing specified as to its kind
The NSA upheld the verdict of the Regional Administrative Court in Krakow, which confirmed that alcoholic beverages are things specified as to their kind, but the sale cannot be considered to always take place at the place where the things are delivered. As a general rule, the sale of things specified as to their kind takes place when the thing is delivered to the buyer at the place designated in the contract. This means that in the terms and conditions of an online store, which is a model contract, it is possible to stipulate that the place of performance of the services is a stationary store with the appropriate permit for the sale of alcohol. The NSA also held that the Internet is not another, additional place of sale, but only one form of sale involving the placing of an order over the Internet.
Online alcohol sales ban vs. business freedom
The NSA accepted that the principle of freedom of business activity provided for in Article 22 of the Constitution of the Republic of Poland cannot be restricted by a provision that is not clear and unambiguous. The issue of the permissibility of contracts for the sale of alcoholic beverages via the Internet, i.e. by means of electronic communication, is not regulated by the provisions of the Act – thus it is neither explicitly permitted nor prohibited. Article 96 of the Act, which, according to the authorities, would prohibit the sale of alcohol online, only regulates the requirements for points of sale. However, these provisions do not formulate requirements for the form of conclusion of a sales contract. According to the NSA, it is not possible to derive the validity of the prohibition of remote sale of alcoholic beverages by means of electronic communication from the current legal regulation – thus, such form of sale of alcoholic beverages should be considered permissible.
Despite the fact that the NSA judgment is a favorable change for entrepreneurs in the approach of administrative courts to the sale of alcohol over the Internet, it should be borne in mind that the judgment was issued on the grounds of a specific factual situation and does not prejudge the possibility of administrative courts or authorities taking a different stance in other cases (court judgments are not generally binding in Poland). Conducting sale of alcoholic beverages via the Internet is still subject to the risk that such practice will be challenged by a certain authority and that a permit for the sale of alcoholic beverages will be withdrawn. It is therefore advisable to amend the law in order to unambiguously determine the permissibility of selling alcoholic beverages over the Internet.
