News

National jurisdiction within the European Union (including Denmark)
2019-10-16 15:04

Although Denmark sometimes abstain from the application of EU regulations, such a case does not occur regarding Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. By the letter of 20th December 2012, Denmark notified the Commission of its decision on the implementation of Regulation (EU) No 1215/2012. Of course, this regulation also binds Poland.

In the light of frequent commercial contacts between Poland and Denmark, the issue of determining the appropriate jurisdiction can be crucial for effective redress in court. In a dispute of a cross-border nature, a lawyer in Poland often begins with this analysis.

The general rule is that persons residing in the territory of a Member State may be sued, regardless of their nationality, in the courts of that Member State.

Living in Poland, you can be sued in a Polish court.

The regulation provides for exceptions and special provisions, so it should be verified each time whether it will be possible to raise a plea of lack of jurisdiction (or whether we will not be exposed to such a charge).

It should be emphasized that pursuant to art. 25 of this Regulation, the parties may agree which country’s courts will examine any future disputes.

Such a contract can be autonomous or integrated in a basic contract document.

For example, a Danish company may arrange with a Polish contractor that in each case disputes will be settled in Poland. You can also arrange the opposite – that regardless of where the defendant lives, the court in Denmark will be the competent court.

This is just an example – many configurations are possible within the European Union.

On the basis of art. 25 of Regulation 1215/2012, such an agreement should generally be concluded in writing or orally confirmed in writing. The subject of proper jurisdiction (in particular in the field of cross-border disputes of entities based in Poland and Denmark) appears frequently in our legal practice, which is why we will systematically introduce you to these issues.

Good news for CHF mortgages loan holders!
2019-10-04 16:06

On October 3, 2019, the Court of Justice of the European Union issued a verdict that may have a revolutionary impact on the current jurisprudence of the courts regarding CHF loans in Poland.

Our legal team has been monitoring the jurisprudence practice of Polish courts in matters related to foreign currency loan agreements for quite a long time now.

However, rulings issued so far have not always been beneficial for consumers. A favorable judgment of the CJEU may change this trend, and as a result the chances of CHF mortgages loan holders in court disputes with banks will increase.

In the opinion of the CJEU, all unlawful clauses should be “removed” from CHF agreements, without replacing them. However, if the removal of these contractual terms results in a change in the nature and subject matter of this contract, it may be considered void. A contract without illegal clauses may continue to apply only if it complies with national law.

In the coming weeks, the legal office’s team will be analyzing loan agreements concluded by our clients with the banks: mBank S.A. (formerly: BRE Bank S.A.), Santander Bank Polska S.A. (formerly: Bank Zachodni WBK S.A.), PKO BP, Getin Noble Bank S.A.

On typical mistakes that employers make during “Disciplinary dismissal”
2019-09-19 17:35

With the current situation on the labour market, a good employee is at a premium. Nevertheless, employers sometimes still terminate the employment contract without notice due to the employee’s fault.

The basic provision that covers “disciplinary dismissal” is Art. 52 of the Labour Code.

It provides for three main reasons for giving a disciplinary dismissal statement to an employee, but in practice the most common is the use of the first of the grounds listed in this provision, i.e. “a serious violation by the employee of basic employee obligations”.

One of the common mistakes is insufficient clarification of the reason for termination of the contract. This error includes both shortcomings in the indication of which (specifically!) obligation was violated by the employee, as well as what his alleged breach was exactly.

It is not disputed that the “employer’s obligation to indicate in the statement on termination of employment without notice due to the fault of the employee the reason justifying this solution means that it should be determined in a way that clearly indicates what in the opinion of the employer, employee’s breach was exactly” (vide judgment of the Supreme Court of 14 December 1999, I PKN 444/99, OSNAPiUS 2001, No. 9, item 313).

According to the current court jurisprudence, the reason indicated by the employer should be clear and understandable for the employee familiarising himself with the statement. The reason – even if it is real – should also be verifiable and articulated in an understandable way.

An equally common mistake of employers is going for “quantity, not quality”. Listing many superficial reasons for terminating the employment contract, may – in case of litigation – not work in the employer’s favour. Therefore, it is worth paying special attention to the preparation of such a document to increase your chances in the event of a possible trial.

Establishment of a board of directors in a simple joint-stock company
2019-08-14 22:20

Continuing the subject of the revolution in the Polish Commercial Companies Code, we would like to point out issues related to the establishment of a board of directors in a simple joint-stock company.

The board of directors, as the company’s body, is certainly a novelty in Polish commercial law.

Although from the linguistic point of view the word “council” seems to impose collegial participation, art. 300 (73) § 2 gives the possibility to fill the body even with one person.

All directors are obliged and authorized to jointly manage the affairs of the company, unless the articles of association or the rules of the board of directors state otherwise. The rights of the director to represent the company cannot be limited with legal effect towards third parties.

Resolutions of the board of directors is required in particular to:
1) make strategic decisions for the company; 2) establish annual and long-term business plans;
3) establish the organizational structure of the company’s enterprise and shaping it basic functions related to running an enterprise.

What is specific for the regulation of a simple joint-stock company – it distinguishes two types of directors: “executive directors” performing business activities of the company, as well as “non-executive directors” exercising permanent supervision over the conduct of the company’s affairs.

In order to carry out the activities of running a company, an executive committee consisting of executive directors may be appointed.

Each non-executive director may examine all company documents, demand reports and explanations from company’s directors and employees.

In the coming weeks we will be presenting further information on the amendment, which is due to enter into force as soon as 1st of March 2020.

Revolution in the Polish Code of Commercial Companies!
2019-08-14 22:13

On June 13th, 2019 Polish parliament passed a law introducing a new type of company – a ‘simple joint-stock company’.
It is supposed to be a response to the needs of the market. In particular, the new type of the company was planned as the optimal solution for start-ups.

According to our preliminary opinion, it will also be an interesting solution for foreigners starting a business in Poland.

A simple joint stock company will be the third capital company in the Polish legal system – apart from a limited liability company and a joint-stock company.

The minimum share capital of this type of company is only PLN 1,00 (!).
The formalities related to its establishment have been minimized.

The provisions provide for the possibility of using the electronic model of the company’s agreement, as well as concluding it in a traditional way.

Although the new law is to come into force only on March 1st 2020, we will present some interesting possibilities provided by the regulation in the coming weeks.

Stay tuned!

What about a loan after divorce?
2019-08-14 22:12

Sometimes it is said that loans tend to be more durable than marriages. In the case of divorce or separation, the question arises how to settle joint financial obligations, and in particular who (and how!) should pay the loan after divorce.

Taking over a house by one spouse does not mean that only he/she will be automatically obliged to repay the indebtedness to the bank.
Most often, the parties to a loan agreement are both spouses who are jointly and severally liable towards the bank. The agreement regarding the method of repayment of the loan, concluded only between the spouses, will not be effective against the bank.

One of the solutions may be taking over the entire debt by one of the former partners. However, this involves the need to obtain the bank’s consent.

From a legal point of view, it is also possible to join a contract by a family member or a new partner.

Nevertheless, it should be remembered that each of the solutions indicated is most often associated with the re-running of the loan granting procedure and the examination of creditworthiness.

“Entrepreneur Test” in the context of a claim for the establishment of an employment relationship
2019-08-14 22:11

According to recent press reports, the government abandoned the idea of introducing the so-called “Entrepreneur Test”, the aim of which was to limit the number of natural persons who settle according to the flat tax of 19%.
New regulations could be particularly important for the IT industry and creative industries, where self-employment is often used by highly qualified specialists.
Our team is patiently waiting for the situation to unfold.

However, regardless of the above mentioned regulation, self-employed persons already have (based on provisions of labour law) the right to claim establishment of an employment relationship before the court of law.
As stipulated in art. 22 § 1² of the Labour Code ,,Employment contracts cannot be replaced with a civil law contract where the conditions of the performance of work (…) remain intact”.

This means that a formally self-employed person may, in the course of a lawsuit, lead to the court deciding that in the eyes of the law, he/she had possessed (or possesses) the status of an employee.
Such a verdict may be beneficial – in particular regarding the possibility of determining excess payment of social security contributions or obtaining remuneration for overtime work.

The „Mobility Package” has been adopted
2019-08-14 22:08

On 4th April 2019 Parliament approved its position on revised rules for posting of drivers, drivers’ rest times and better enforcement of cabotage rules.

Parliament wants to prevent “systematic cabotage”, by establishing a “cooling-off period” for vehicles to be spent in the home-country (60 hours) before heading for another cabotage.

Some of new regulations are focused on drivers and working time.
Companies will have to organise their timetables so that drivers are able to return home at regular intervals (at least every 4 weeks). The mandatory rest period at the end of the week should not be taken in the truck cab.

Planned rules shall apply to cabotage, and cross-border transport operations, excluding transit, bilateral operations and bilateral operations with one extra loading or unloading in each direction (or zero on the way out and two on return).

It should be noted that the results of voting in the European Parliament can clearly indicate that the opposition has been broken.

Planned changes can significantly affect the organization of work for Polish hauliers, but also Bulgarian, Romanian and hauliers from the Baltic countries.

Our team will closely follow the legislative work on this regulation.

[Source: European Parliment (press room)
http://www.europarl.europa.eu/portal/en]

Resignation of management board member. New regulation implemented
2019-08-14 22:10

On March 1st 2019, amendments to the Code of Commercial Companies [PL] have entered into force.
Amendments are particularly important for joint-stock companies and limited liability companies.

According to the new regulation, in a situation where, as a result of the resignation of the member of the management board of a capital company, none of the seats on the board would be filled, the board member resigns to shareholders by convening the shareholders’ meeting.
The resignation shall be effective on the day following the day on which the shareholders’ meeting was called.

This amendment to art. 202 § 6 of the Commercial Companies Code, ended many years of dispute in doctrine and judicature.

Before the amendments entered into force, similar issues were settled in accordance with the resolution of seven judges of the Supreme Court of March 31st, 2016 (reference number III CZP 89/15).
As indicated in the resolution, a member of the board should have made a statement of resignation to another member of the management board or a proxy.

The problem arose in a situation, when the resigning board member was the only management board member, and the company did not appoint a proxy.

It was then assumed that resignation should be submitted to the supervisory board, and in the absence of such – to a proxy appointed by resolution of shareholders. If the proxy was not appointed, a member of the management board should have initiated the appointment of such.

It is worth adding that a member of the management board of a capital company may resign at any time.