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Can you sell alcohol online to Polish consumers? Well, it’s complicated…

Once the EU Excise Duty Directive was amended (as of 13/02/2023), Polish legislators quickly implemented those changes (almost fully) into the Polish Excise Duty Act. The framework to streamline online B2C sales of alcohol to Polish consumers was set up, which could be seen as an opportunity for Polish consumers to get access to high quality alcohol at competitive prices from EU suppliers operating online. However, despite the fact that the Polish tax system is now able to accommodate such sales, there are licensing problems.

In Poland, the sale of alcohol is a regulated activity, which is primarily regulated by the anachronistic Polish Act on Upbringing in Sobriety 1982. An entrepreneur who wants to sell alcoholic beverages must meet several requirements.

First of all, he will need a permit commonly referred to as a “licence to sell alcohol”.

Secondly, the location of the outlet selling alcoholic beverages is crucial – as the license is granted only to a given location (within Poland). Failure to comply with this obligation results in a fine imposed on the business owner in the form of a daily fine, administered in accordance with the Criminal Code in daily rates, where the number of daily rates may not exceed 810 and the amount of one fine is a maximum of PLN 2,000.

Interestingly, the regulations contained in the Act on Upbringing in Sobriety directly refer only to the 'traditional' form of sales, i.e. 'stationary' sales. Thus, there are no provisions in this Act where the legislator uses terms such as 'sale of alcohol via the Internet', 'alcohol trading on the Internet'.

In view of this, can a foreign EU seller sell alcohol online to Polish consumers?

In our opinion, it is possible, from the wording of the provisions contained in the Act, to draw conclusions as to the admissibility of online alcohol sales. We believe – based on the wording of the regulations under discussion, that provisions on licenses to sell alcohol may only apply to stationary sales and cover only Polish entrepreneurs.

Generally, in case of online sales of alcohol by an EU company from outside of Poland, the sales contract is concluded under foreign (non-Polish) law. Furthermore, the delivery of goods is a separate service from the sale itself. In our view, a different position would violate the right of free movement of goods originating in Member States or of goods from third countries which are in free circulation in Member States, one of the fundamental principles under the Treaty (Article 28 TFEU).

What is more, representatives of the regulatory authorities during telephone consultations also confirmed our position, indicating that there is no obligation for a foreign trader to have a license to sell alcohol to Polish consumers over the Internet.

However, we asked the Ministry of the Economy (the body authorised to issue certain alcohol sales licenses) to confirm the above position in writing. Unfortunately, the response was prolonged and the matter was eventually referred to the Ministry of Health, which provided a negative response.

Referring to the EU law, in particular Article 9 of the Treaty on the European Union, the Ministry of Health among other non-at-all-convincing arguments, took a position that allowing foreign entrepreneurs to sell alcoholic beverages in the territory of Poland without holding the required permit, in a situation where a domestic entrepreneur is obliged to hold such a permit, would violate the principle of equal treatment of entrepreneurs.

The position presented by the Ministry of Health is only an opinion and is not binding, but obviously it does increase a risk of negative consequences, if you decide to sell online B2C alcohol to Polish consumers.

Why, in fact, are the Polish authorities opposed to legalizing the sale of alcohol through online stores or other similar platforms or apps with a delivery option to the customer?

Regulators recognise that restricting access to alcoholic beverages is an effective tool to prevent and address alcohol abuse problems. However, Poland is probably the only EU country where online alcohol sales are not regulated by law, which in fact should mean that they are legal (what is not prohibited, should be considered legal).

It should also be mentioned, that the Polish courts have considered the regulation with regard to Polish companies trying to sell alcohol online. The judgments issued are not consistent, and it seems that if you have a license to sell alcohol in a stationary outlet, you may also sell it online. However, without the outlet and license – this raises great doubts of the courts.

To conclude, by selling alcohol online to Polish consumers, EU companies may expose themselves to sanctions - although it is unclear whether these regulations actually apply to online sales. Therefore, to be on the safe side, you should rather find a distributor holding a license in Poland – to sell alcohol B2C to Poland. On the other side, this disadvantageous conclusion seems to be based on incorrect interpretation of the law and potentially the interpretation may change in the future.

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