Sale of alcohol on the Internet. Allegro suspends the plan, some stores continue trading

On October 21, the pilot sale of alcohol was to start via one of the largest online platforms in Poland – Allegro. A few days before this date, the giant changed his mind.

– Taking into account the government's announced work on amending the Act on sobriety education, we have decided to suspend the pilot program for alcohol sales on Allegro – Marcin Gruszka, the company's spokesman, told the tvn24.pl business editorial team. – We will carefully monitor the current situation related to legislative changes and decide on the next steps related to the launch of alcohol sales – he added.

This concerns changes prepared by the government to the Act on upbringing in sobriety and counteracting alcoholism. “The government programming team is working on the issue of bans on the sale of alcohol at gas stations from 10 p.m. to 6 a.m., alcohol price promotion and online alcohol sales – we have included these solutions in our project,” the Ministry of Health told the tvn24.pl business editorial team. “We are at the stage of intensive work on the final shape of the act,” the ministry added.

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Before any amendment comes into force, another question is equally important – can alcohol be sold online under the currently applicable regulations?

The Ministry of Health, in response to a parliamentary interpellation from MP Jan Warzecha, explains that “the provisions of the Act clearly define the places where the sale of alcoholic beverages may be carried out.” The regulations list: specialized stores, separate stands in self-service commercial establishments and other commercial establishments where the seller sells alcoholic beverages directly.

The Ministry states that “enabling the sale of alcoholic beverages online would increase the availability and expand sales channels of alcoholic beverages, which should be assessed negatively from the point of view of public health.”

“It has been repeatedly emphasized that the position that limiting the physical availability of alcoholic beverages is one of the three most effective tools aimed at preventing and solving problems related to alcohol use remains valid,” the ministry adds.

However, the practice varies. Alcohol may be available in some online grocery stores, but you must confirm that you are over 18 years of age before ordering. Sometimes this is verified by the courier. One of the large retail chains offers online reservations, but the order must be collected and paid for at a stationary branch.

The Internet is also an important sales channel for wine stores. Małgorzata Luty, founder and co-owner of the wine.pl store, explains to the tvn24.pl business editorial team that the company has been fighting in court for several years regarding the recognition of the legality of selling alcohol online. – Our two won cases clearly show that the regulations invoked by the Krakow city office, which twice took away our previously issued alcohol sales permit, have no reference to online sales – he explains.

The President of Krakow revoked the company's permit to sell alcoholic beverages in connection with online trading. After considering the appeal filed by the store owners, this decision was upheld by the Local Government Appeals Court in Krakow. In its justification, the College emphasized in particular that the ban on selling alcoholic beverages online results directly from the Act, as the legislator did not provide for the legal possibility of such sales and, despite repeated amendments, did not introduce regulations enabling the sale of alcohol via the Internet.

The case was brought to the administrative court, which resulted in the decision of the Supreme Administrative Court of September 8, 2022 and the judgment of the Provincial Administrative Court in Kraków of June 22, 2023.

“The disputed issue in this case of the admissibility of concluding contracts for the sale of alcoholic beverages via the Internet was not regulated in the Act on upbringing in sobriety and counteracting alcoholism,” we read in the justification of the decision of the Provincial Administrative Court in Krakow. “The authority's position that since the legislator does not directly and expressly allow distance sales of alcoholic beverages using electronic means of communication, it means that such sales are prohibited,” explains the court.

“Correct legal reasoning aimed at interpreting the disputed provisions should be based on the opposite assumption, i.e. on the assumption that if the legislator has not directly and expressly regulated such a form of sale, it means that it has not introduced any restrictions on constitutional freedom in this respect and such a form is permissible,” we read.

Mrs. Małgorzata's shop bases its operations on the above judgment.

Gniewomir Wycichowski-Kuchta, an associate in the Regulatory Advisory, Legislation and Compliance Practice of the Domański Zakrzewski Palinka law firm, a research associate at WPiA UW and INP PAN, in an interview with the business editorial team of tvn24.pl, argues that selling alcohol via the Internet is possible. He refers to the above judgment.

– In the current legal situation, with the appropriate construction of sales regulations and having a stationary sales point for which a permit for retail sale of alcohol has been issued, trading in alcoholic beverages via the Internet is permissible – he says.

– In none of the provisions of the Act on upbringing in sobriety and counteracting alcoholism does it refer directly to the sale of alcoholic beverages via the Internet, introducing only general conditions required for trading in alcoholic beverages. Therefore, in accordance with the constitutional principles of freedom business activitiesif the law does not explicitly prohibit a given issue, it should be considered permitted – emphasizes Gniewomir Wycichowski-Kuchta.

However, as he points out, “ordering alcoholic beverages with home delivery is becoming problematic.” As he explains, the Trade Inspection has for a long time revoked alcohol sales permits from stores that sold alcohol online, citing the argument that the entrepreneur actually sells alcoholic beverages in a place other than that indicated in the permit – namely, at the customer's home, claiming that the customer “purchases” alcohol when receiving it from the courier.

– Pursuant to the provisions of the Civil Code, transfer of possession of the thing is required to transfer ownership. Therefore, entrepreneurs began to construct sales regulations in online stores in an appropriate way, so that the ordering customer authorizes the courier to collect the purchased alcohol on his behalf in the stationary store, thanks to which the place of performance becomes the point of sale of alcoholic beverages – explains the lawyer.

– Lawyers argued for a long time whether this procedure was permissible, but ultimately he confirmed the legality of such a practice Supreme Administrative Court in September 2022. I have always agreed with this position and I accepted this ruling – emphasizes Gniewomir Wycichowski-Kuchta.

Małgorzata Luty is worried about the future of her business due to the announcement of changes in regulations. In a letter addressed to the Minister of Health, Izabela Leszczyna, she writes: “After 6 years of court battles in two trials, 6 years of a difficult fight for our rights, 6 years of fighting for the survival of our company, it has finally been recognized that we operate in accordance with the law. Now the specter hangs over us another company closure overnight because there is a suspicion that Poles have too easy access to alcohol thanks to online sales.

Meanwhile, as he points out, “on my street, which is 850 meters long, there are 4 grocery stores, open from 7 a.m. to 11 p.m., offering a wide range of alcohol, mainly cheap ones, with a full range of so-called monkeys.” Available immediately in the morning, while her company needs a minimum of 24 hours, often several days, to complete the delivery.

“Everywhere in Europe, there are wine stores that deliver products to the customer, and for our customers, the determinant is not the price or time, but the quality of the product. Our customers are now also shopping abroad, because we are often not competitive due to the availability of products. If a ban on online sales is introduced in Poland, our customers will move their purchases abroad and thus contribute to the budgets of other countries instead of supporting our domestic market,” writes Małgorzata Luty to the head of the Ministry of Health, appealing not to “throw the baby out with the bathwater”.