‘Downtime Benefit’ for workers employed under a contract of mandate
2020-05-20 09:04

Covid-19, Zasiłek Postojowy

The Polish Parliament has recently introduced a number of solutions to lighten the economic effects of the SARS-CoV-2 corona-virus epidemic. As part of the proposed solutions, the Legislator in so-called “Anti-crisis Shield” provided downtime benefit for persons performing contracts of mandate.

Persons who have concluded a contract of mandate which performance has been limited as a result of a pandemic, are entitled to apply for such benefit.

An application for a downtime benefit must be made through the employer. An important limitation is the date of conclusion the contract. The downtime benefit can only be applied to contracts concluded before April 1, 2020.

Worker should submit a declaration of not being insured for social insurance on another basis.

As a general rule, downtime benefit is granted in the amount of 80% of the minimum remuneration for work in 2020. It may be paid no more than three times and not more often than once a month.

It should be remembered that applications for payment of the downtime benefit may be submitted to the Social Insurance Institution within 3 months from the month in which the epidemic will be lifted.

#stayathome #COVID19 #anticrisisshield

Service contracts during the COVID-19 pandemic
2020-03-31 22:11

Covid-19, Coronavirus, Lawyer

Service contracts are commonly concluded in everyday life. We may include in this type of contracts, contracts for the organization of sports, educational or childcare activities.

Such agreements are usually concluded for a specified period (for example, one year in the case of admission to sports or ‘term’ in relation to educational activities) and should generally not be terminated before the end of the period for which they were concluded.

However, the current situation is extraordinary, which is often the reason why service providers are unable to perform contracts (even for reasons articulated in the regulations limiting the effects of an epidemic).

In such a situation, the provisions on the consequential impossibility of performance may apply, i.e. article 475 of the Civil Code. According to it, “if a performance becomes impossible due to circumstances for which the debtor is not liable, the obligation expires.”.

What about the situation, when the payment was made in advance for the entire contract period?

In many cases it will be possible to apply article 495 § 1 of the Civil Code, according to which “the party which was to make the performance cannot demand the reciprocal performance, and, if it had already received it, it is obliged to return it according to the provisions on unjust enrichment.”.

To simplify a bit – in many cases, the provider not only cannot demand payment from the consumer, but is obliged to refund the sum, which was already paid in advance. However, it should be consulted that each case should be assessed individually.

Closure of the workplace due to COVID-19
2020-03-31 21:49

COVID-19, Coronavirus, Lawyer

The global pandemic of the COVID-19 virus announced last week by the WHO forced many employers to drastically reorganize the functioning of workplaces, and sowed uncertainty about the stability of employment and remuneration among employees.

In extreme cases, the functioning of enterprises was completely suspended.

This is particularly evident in the sports, entertainment, tourist and commercial industries.

Although the Polish Labor Code does not explicitly mention a global pandemic, it provides for situations of so-called “downtime”.

I am talking about the regulation contained in art. 81 § 1 of the Labor Code.

Pursuant to the aforementioned provision, an employee ready to perform work, who, however, suffered obstacles in this regard, is entitled to remuneration resulting from his personal grade, determined by hourly or monthly rate.

If the parties to the employment contract did not separate such components of remuneration, for example, the employee receives a commission remuneration, then the employee will receive 60% of the remuneration.

In each case, however, this remuneration may not be lower than the amount of the minimum remuneration for work (and therefore from PLN 2,600.00).

Although the provision mentions “experiencing obstacles for employer reasons,” the doctrine will classify the effects of a pandemic in this way. This may result from the general rule that the employee does not bear the risk associated with the employer’s activities.

It is also worth adding that during the period of quarantine, the remuneration is paid on the same terms as in the case of illness. The law firm’s team will follow legislative work and keep you informed of any significant changes on an ongoing basis.

The compromise was reached as to the wording of “Mobility Package”
2020-03-31 21:43

Pakiet Mobilności, Mobility Package

On December 20th, 2019, the compromise was reached as to the wording of the so-called “Mobility Package”.

Draft regulations were adopted in three areas:

  1. Draft regulation relating to access to the profession and to the market;
  2. Draft regulation relating to driving times and rest periods and tachographs;
  3. Draft directive relating to enforcement and posting drivers in the road transport sector.

Below are examples of organizationally relevant requirements for transport companies.

It will be required to organize fleet traffic in such a way to ensure that vehicles at the disposal of the undertaking and used in international carriage return to one of the operational centres in that Member State at least within eight weeks after leaving it.

Meeting of the above requirement will probably be easy to verify based on modern tachographs equipped with a GPS module.

Furthermore, it is worth to note the restrictions on cabotage. Road transport undertakings are not allowed to carry out cabotage operations, with the same vehicle, or, in the case of a coupled combination, the motor vehicle of that same vehicle, in the same Member State within 4 days following the end of its cabotage operation in that Member State.

This may be a significant limitation for carriers from Latvia, Estonia, Lithuania, Romania and Bulgaria.

These revolutionary changes will most likely come into effect in the last quarter of 2021, so there is not much time left for legal and operational preparations. In the next entries we will introduce some details of the new regulations.

Consultations on “Mobility Package” have reached the next stage
2019-12-19 11:38

Mobility Package, new regulation

Work is underway on the “Mobility Package”. Arguments related to environmental protection are against new regulations.

Representatives of Central European countries do not lay down their arms. Possible support may come also from Spain and Portugal. Germany and France remain the greatest proponents of the “Mobility Package”.

Certainly, adopting new regulations according to the assumptions presented so far would be a great blow to carriers from the peripheral countries of the European Union, especially Romania, Bulgaria and the Baltic States.

To some extent, they would also be a challenge for enterprises registered in Poland.

In addition to legal arguments related to the need to maintain the common transport market within the European Union, recently ecological arguments have been raised.

One of the assumptions of the regulations being developed is to limit cabotage and impose the necessity of trucks returning to the country of registration.

Restrictive rules will make it necessary for truck drivers to drive without transporting any goods.

It is difficult to logically reconcile the need for such unproductive journeys with the environmental policy of the European Union.

According to the calculations of the Polish Minister of Transport, the introduction of the regulation as currently proposed will result in an additional emission of around 3 million tonnes of CO² per year in Germany alone. The source of emissions will be unloaded vehicles returning to their country of origin.

In view of the above, there is a high probability that the planned regulations will be tempered.

Source: Polish Press Agency

Conference “Doing Business in Scandinavia”
2019-12-05 09:54

lawyer in Poland

At the invitation of the Wielkopolski Fundusz Rozwoju we had the opportunity to participate in the conference “Doing Business in Scandinavia”.

Head of the law firm’s team, Attorney Marcin Walawski gave a short lecture on trade agreements concluded by Polish exporters with Scandinavian contractors and relevant legal provisions from the point of view of a lawyer cooperating with foreign entrepreneurs.

The speech of lawyer Marcin Walawski focused on European rules on the choice of jurisdiction in international trade agreements.

When making a decision to conclude a contract, the consulting with a lawyer about which court will be competent to deal with any dispute is worth taking.

From the perspective of Polish exporters, the jurisdiction of (for example) a court in Denmark or Norway may inhibit operational issues related to pursue claims from commercial partners.

Still few entrepreneurs are aware that the appropriate provisions in the contract can ensure the jurisdiction of courts in Poland. Consequently, it will also be possible to conduct a court dispute with the help of a Polish law firm.

The above is due to the fact that European-wide legal regulations are binding not only in Poland, but also in other European Union countries (and with some reservations also in the countries of the European Economic Area).

The conference organized on November 15th 2019 in Poznań, was an excellent opportunity to exchange inspirational insights with Polish entrepreneurs entering new markets, as well as representatives of Polish companies operating for many years in Denmark, Norway, Sweden and Finland. Thank you for the invitation, warm welcome and great organization!

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

jurisdiction Poland

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

kredyt frankowy

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

Lawyer In Poland

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

Kancelaria Szczecin - Marcin Walawski

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.