Category: Poland

SSK&W has advised Wireless Instruments founders Michal Gorzad and Adrian Metelica on obtaining financing from an Assay Group private fund.

Wireless Instruments is a Wroclaw-headquartered company that designs and manufactures telecommunications antennas, mainly for IoT, 5G, and LTE wireless communications. “In 2023, Wireless Instruments plans to create a subsidiary that will design and manufacture power systems for telecommunications devices,” the firm announced.

Assay is a Warsaw-headquartered investment fund.

The SSK&W team included Partner Szymon Syp and Counsel Iga Wojtczak-Opala.

Former Counsel Rafal Siemieniec has been appointed as an Associate Partner with MFW Fialek.

Siemieniec specializes in corporate and M&A and real estate and has been with the firm since 2019, having first joined as a Counsel. Prior to joining the firm, he was a Senior Associate at JDP from 2017 to 2019, and at Drzewiecki Tomaszek from 2014 to 2017. Earlier still, Siemieniec was an Associate at TGC Corporate Lawyers between 2011 to 2014. Between 2007 and 2009, Siemieniec was an Assistant at Herbert Smith Freehills. He also worked as a Legal Clerk at Hodge Jones & Allen from 2004 to 2007.

New regulations allowing employers to carry out preventive and ad hoc sobriety checks on employees will come into effect on February 21, 2023. Employers will be allowed to start the checks two weeks after they publish relevant regulations in the workplace.

The employer will be obliged to inform employees subject to sobriety enforcement regulations at least two weeks prior to their introduction. It is advisable to prepare appropriate amendments to internal regulations like collective bargaining agreements or work regulations, in advance. Employers with less than fifty employees should draft a suitable announcement.

Until now, in situations involving consumption of alcohol by employees, sobriety checks without employee consent could only be carried out by authorized bodies set up to protect public order (such as the police). Employers could carry out checks in person when employees consented to or explicitly requested such themselves. It is important to remember, however, that up to now, employees have had the right to withdraw their consent to sobriety checks at any time. The regulations only allowed sobriety checks in the context of alcohol consumption but did not allow verification of whether the employee had ingested intoxicants or drugs.

What new solutions do the amendments to the Labor Code bring?

With the new regulations, the employer:

1. can directly, independently conduct a preventive check of an employee for the presence of alcohol using non-laboratory methods (breathalyzer test);
2. can independently carry out a check for the presence of drugs acting similarly to alcohol in the employee’s organism (the list of such drugs is to be established by regulation of the Minister of Health – at this point, the draft includes among others opioids, amphetamine, cocaine);
3. may process personal data related to the outcome of the check without the employee’s consent;
4. has an obligation not to allow the employee to work if the check reveals the presence of an unacceptable level of alcohol or a drug acting similarly to alcohol, or if there is a reasonable suspicion that the employee reported for work in a state of intoxication through alcohol or drug abuse, or drove himself into such a state while at work.

A sobriety check may be carried out by the employer using a device (breathalyzer) that has a valid document confirming its calibration.

Still an employee banned from working by the employer, may request a police officer or other authorized body to conduct an alcohol breath test. The authority will also have the ability to refer an employee for laboratory blood or urine tests in situations defined by law.

Employee sobriety tests may be introduced in the workplace if it is necessary to protect the lives and health of employees or other persons or to protect property. An employee reporting for work under the influence of intoxicants, or consuming such at work, is in gross breach of basic labor obligations and is subject to disciplinary sanction by official warning, reprimand, fine, suspension up to instant dismissal without notice.

The employer may not conduct sobriety checks other than based on rules defined in collective bargaining agreements, work regulations or announcements (which applies to employers with fewer than fifty employees). The law lays down that such checks may be limited only to groups of employees specified in the employer’s internal regulations. In addition, the employer must regulate the manner and time in which the tests are to be carried out (e.g., specifying the time of day tests may be carried out for example, before the start of work) and the frequency with which they are to be made (e.g., daily, if the nature of the work requires it – drivers, work at high altitudes, work on the shop floor, etc.).

The new regulation also provides for the mandatory analogous application of the provisions on sobriety checks to persons employed on a basis other than employment contracts (contracts of mandate or for specified work, or self-employed natural persons cooperating with employers on a b2b contract basis).

By Aleksandra Minkowicz-Flanek, Partner and Magda Słomska, Counsel, Dentons

Recently local authorities have been hit by rising electricity costs. No-one’s surprised nowadays when electricity purchase prices rise by several hundred percent or when tenders are repeatedly cancelled. As a result, local authorities often decide to take radical steps – temporary closures of public facilities, limited street lighting or turning off the illumination of buildings have become standard in some towns and cities. There’s no doubt that a major part of the electricity purchased by local government goes on street lighting systems, which are often inefficient in terms of energy consumption. In many cases, it might be a good idea to have a look at using public-private partnerships as a way to upgrade street lighting systems and cut electricity requirements. It is also worth taking note that developing this model for implementing public tasks in the street lighting sector is explicitly included in the strategic document Polish Energy Policy until 2040 issued by the Ministry of Climate and Environment and setting the framework for the energy transition in Poland.

What might such a project look like?

The main objective of a project to upgrade street lighting is to carry out, at the construction stage, design documentation and replacement of existing street lighting fixtures with modern energy-efficient LED lamps, and at the operation stage to maintain the lighting infrastructure in proper technical condition, implement and manage the street lighting control system in order to achieve the goals of reducing electricity consumption and operating costs and providing monitoring of electricity consumption by the installation. At the same time, the private partner is obliged to finance the project, and for all of its obligations it is remunerated in the form of an availability payment, which is the sum of the remuneration for performing the above-mentioned tasks. This fee can be covered in part by the surplus resulting directly from the savings in electricity consumption generated by the project, which in this type of proceedings are usually assessed on the basis of the bid evaluation criteria.

With respect to the procedural considerations of implementing such projects, bearing in mind that the value of the project does not usually exceed the EU thresholds (in 2023, PLN 23,969,275 for construction works), it is impossible to apply the often preferred manner of selecting a private partner, i.e., competitive dialogue. The possibility to apply this procurement mode involving negotiations was restricted by the Public Procurement Law of 11 September 2019 (consolidated text: Journal of Laws of 2022, item 1710, as amended, “PPL”) to projects with values exceeding the EU thresholds, while for projects of lower value, contracting authorities may only use the basic procedures. The specifics of public-private partnership projects seem best-suited by a variant of the basic procedure, in which all interested contractors submit initial bids in response to a procurement notice, then the contracting authority conducts negotiations to improve the content of the bids, and after the conclusion of the negotiations, the contracting authority invites contractors to submit final bids (Article 275(3) PPL). Obviously, the above does not exclude the possibility of applying to a given project the variant in which the contracting authority selects the most favorable offer without negotiations (Article 275(1) PPL) or its equivalent for larger projects, i.e., an open tender. It seems that future market practice in the street lighting sector may go precisely in this direction – in particular, taking into account good practices already established in the market (in terms of both the approach to the way of describing the object of the contract and the principles of contracting).

Moreover, in accordance with Article 3a of the Public-Private Partnerships Law of 19 December 2008 (consolidated text: Journal of Laws of 2023, item 30), prior to the initiation of proceedings to select a private partner, the public entity shall prepare an assessment of the effectiveness of the implementation of a public-private partnership project compared to the effectiveness of other ways of implementing the same project, in particular, with the use of public funds only. During this process, it is also worthwhile developing documents that are key to the validity of the conclusions arising from the process, and which at the same time may prove important for the quality of the implemented procedure for selecting a private partner ‒ in the case of the street lighting sector, these may include, in particular, an inventory of the lighting system or an energy audit. There is no doubt that thorough preparation of the procedure for selecting a private partner can positively affect the dynamics of the entire further process and translate into greater chances of success in the form of a final contract.

Market practices

Although only eight public-private partnership contracts have been signed to date in the street lighting sector, the increasing activity of local authorities in this area is noticeable, as evidenced, among others, by the projects listed below.

Upgrade and expansion of the lighting system in the municipality of Wiązowna under the PPP formula
This is the latest of the public-private partnership contracts signed in the street lighting sector. As part of the project, nearly 2,000 existing worn-out fixtures were replaced with modern LED fixtures, a lighting infrastructure control system with remote monitoring was implemented (along with the respective adaptation of about 700 existing LED fixtures). The project was implemented through an open tender (following cancellation of a competitive dialogue procedure) and the contract was signed with ECM Energia S.A. on 22 September 2022 (for PLN 32,841,426.60 gross).

Upgrade of street lighting in the municipality of Łomianki under the PPP formula

The proceeding was initiated in March 2022, while preparatory works are now being carried out with a view to sending an invitation to private partners to submit their final bids. The project involves upgrading the lighting infrastructure by replacing about 3,500 existing street lighting fixtures with modern LED fixtures (the current street lighting is based on conventional light sources – sodium and mercury lamps of 70W to 250W) with the simultaneous construction of about 200 new street lighting points and poles, the implementation of a lighting control system for the new LED fixtures, and the adaptation of nearly 300 existing LED fixtures to this system. The project required arrangements with PGE Dystrybucja S.A., whose approval for the street lighting upgrade was required due to the ownership status of the lighting infrastructure in the municipality. The project is implemented under the basic procedure with mandatory negotiations (Article 275(3) PPL).

Upgrade of the street lighting system in Kraków

This project is under preparation – currently the Ministry of Development Funds and Regional Policy is conducting the procedure to select advisors (technical, business, financial and legal ones) to support the public entity with implementation. The project involves upgrading the street lighting along public roads in the city of Kraków to achieve an energy efficient system (and its subsequent operation). The project certainly stands out for its scale – it involves the replacement of some 20,000 existing luminaires with new energy-efficient LED luminaires, some 6,800 lighting poles and about 238 km of cable network. In addition, it is planned that 10% of the new luminaires will be equipped with an auxiliary power outlet to allow smart city devices to be charged 24/7. The estimated capital expenditures related to the project are around PLN 200,000,000 gross.

Summary

There is no doubt that public-private partnerships ‒ especially in view of the challenges currently faced by local authorities ‒ are an interesting alternative to the usual way of implementing public tasks. This type of long-term cooperation in the street lighting sector can bring tangible results, as in addition to achieving the anticipated energy, economic and environmental effects of the modernized infrastructure, such parameterized projects certainly have a positive impact on improving the safety of pedestrians and road-users, raising the level and quality of life of the local community, and improving the aesthetics of the lighting infrastructure. Furthermore, market practice proves that this model for delivery of lighting projects can be used by almost all local authorities, regardless of their size or the scale of the project.

By Jakub Kot, Senior Associate, Dentons

Kochanski & Partners Partner and Head of Media Sector Agnieszka Chrzanowska has been appointed the Publications Officer on the Media Law Committee of the International Bar Association.

According to Kochanski & Partners, the “Publications Officer is a new position created within the Media Law Committee and consists of a two-year appointment.” The IBA Media Law Committee “develops and coordinates a wide range of projects and activities, focusing on the legal aspects of the media industry, with a particular focus on its international nature,” the firm reported. “The Committee focuses on traditional media, but also deals with online communications and e-commerce issues, and regularly discusses new directions in media technology.”

According to the firm, “as Publications Officer, Agnieszka Chrzanowska’s responsibilities will include the coordination of IBA publications authored by individual committee members and the organization of media webinars.”

“I am delighted to have the opportunity to actively engage and collaborate in the activities of the Media Law Committee, and am sure that my regional outlook will allow me to make a significant contribution to the work of the IBA,” Chrzanowska commented.

Specializing in the media industry, Litigation/Disputes, and Compliance, Chrzanowska has been with Kochanski & Partners since 2014, when she joined as an Associate.

Greenberg Traurig has advised the AT Capital Group on its acquisition of land in Warsaw from Golub Gethouse.

According to Greenberg Traurig, “the acquisition of the property is AT Capital’s first investment in Poland. The land plot will be developed with the 140-meter Liberty Tower designed as a mixed-use complex with residential units, rental apartments, offices, and a hotel.”

The AT Capital Group is a Singapore-headquartered family office specializing in actively managed businesses and passive financial investments. The company has offices in India, Singapore, Dubai, and the Netherlands.

The Greenberg Traurig team was led by Partner Agnieszka Stankiewicz and included Local Partner Maciej Kacymirow, Senior Associate Agnieszka Gul-Czajkowska, and Associates Dominika Sitkiewicz, Izabela Szponar, Krzysztof Poplawski, Rafal Ochmanski, and Mateusz Rogulski.

Greenberg Traurig did not respond to our inquiry on the matter.

Roedl & Partner, working with Bird & Bird, has advised Sunfarming on expanding its partnership with Hansainvest through a EUR 50 million mezzanine financing for 231 Polish photovoltaic projects. Dentons, working with Baker Tilly, advised Hansainvest on providing the financing.

Sunfarming, founded in 2004 and based in Erkner near Berlin, is a solar energy equipment supplier.

Hansainvest, part of the Signal Iduna Group, is an asset and investment management company that manages office, retail, hotel, logistics, and residential properties in 24 countries.

According to Capcora, Sunfarming’s financial advisor, the cooperation agreement stipulates Hansainvest providing a 20-year mezzanine EUR 50 million loan for 231 Polish solar PV projects with a volume of approximately 257 megawatts. A first tranche of EUR 12 million will be used to refinance a portfolio of 50 solar plants producing 48 megawatts of power.

According to Baker Tilly, “Hansainvest is thus expanding its position in the field of renewable energies, investing in Poland for the first time. The company already manages a volume of EUR 1.9 billion in the field of renewable energies and infrastructure.”

The Baker Tilly team included Partners Heinrich Thiele and Jens Suhrbier and Manager Nico Schueller.

Former SSW Pragmatic Solutions Partner Igor Muszynski has joined Wolf Theiss as a Partner and Head of the Energy & Natural Resources team in Warsaw.

According to Wolf Theiss, “with over three decades of experience, Igor is a prominent energy sector lawyer in Poland, having worked for the Ministry of Economy drafting the Energy Law adopted in 1997.” He focuses on transactions and projects, both conventional and renewable, including off-shore wind projects.

Prior to joining Wolf Theiss, Muszynski spent over two years as a Partner with SSW Pragmatic Solutions. Before that, he spent five years with Radzikowski Szubielksa i Wspolnicy and 11 years with Chadbourne & Parke. Muszynski also spent almost seven years with White & Case as a Local Partner, between 1998 and 2005, and five years with Poland’s Ministry of Economy, between 1993 and 1998.

“We are thrilled to welcome Igor to the firm,” Wolf Theiss Warsaw Co-Managing Partner Tomasz Stasiak commented. “His experience and skills will be invaluable as we continue to grow our presence in Central and Eastern Europe. We look forward to working with him to provide our clients with the best possible advice and support in the energy sector.”

“Joining Wolf Theiss is an exciting opportunity for me to contribute to the firm’s well-established practice in the energy sector,” Muszynski added.

Linklaters has advised Patron Capital – acting in partnership with 7R – on the sale of an approximately 30,000 square-meter logistics asset located in Goleniow to an undisclosed institutional investor, for EUR 22 million. 

Patron Capital is a European institutional investor focused on property-backed investments. 7R is a developer specializing in the construction of warehouses.

According to Linklaters, “the facility was built for the Hultafors Group in 2021 on a ‘build-to-suit’ basis, as part of a joint venture between Patron Capital and 7R. It is located close to the Polish-German border in Goleniow, near Szczecin. The warehouse is a high-tech building, equipped with an AutoStore system. It is powered in part by photovoltaic panels and has charging stations for electric cars. The building has been environmentally certified under the BREEAM system at the ‘Very Good’ level.”

Linklaters’ team included Of Counsel Adriana Andrzejewska, Senior Associates Jedrzej Palka and Maciej Checinski, and Associate Katarzyna Grodzka.

A busy legislative start to 2023 is in store for Poland, with significant changes made to the consumer protection and electronic communication frameworks, as well as amendments to the Legal Advisors’ code of ethics being introduced, according to Traple, Konarski, Podrecki & Partners Senior Partner Xawery Konarski.

“First of all, it is worth mentioning that there has been a comprehensive change to the consumer protection legislation landscape since the start of the year,” Konarski begins. “The change came on the coattails of Poland implementing three crucial EU directives and is a very horizontal one – impacting both online and offline dealings.” As he reports, the Competition Office, which is in charge of overseeing consumer protection matters, will be “quite tough in its approach to ensure that all the requirements the amendments introduce are met quickly.”

According to Konarski, the most important changes tackle “unfair competition practices on the Internet, such as leaving fake reviews of products. Additionally – if your business is a platform that ranks internet shops – the ranking criteria must now be transparent and indications must be made if there was any paid positioning.” Finally, he says that the most important “offline innovation is the requirement of discount promotion notifications – you have to notify your customers what the lowest price of a product was within the past 30 days. This is a decisive method of combating fake promotions, for example, those that sometimes appear around Black Friday,” he explains.

Furthermore, Konarski reports changes to the European Electronic Communication Code. “The changes were supposed to be implemented two years ago, yet the draft law stands before parliament only now. The government decided to add some provisions that were not in the directive and which could potentially affect all internet users,” he says. “The government added a proposal that would enable both it and the intelligence services to have automatic access to internet communication data, such as WhatsApp or emails. This spurred serious parliamentary discussions with respect to privacy intrusions,” he points out.

Finally, Konarski highlights a new code of ethics that the “Legal Advisors Association passed at the start of the year. This new regulation introduces an extremely stringent set of rules when it comes to conflicts of interest.” According to these changes, “conflict exists even in the instances where one partner of the firm represents, for example, a large pharmaceutical company, with another partner representing a generic drug company – without any links, other than these sectors being connected – it’s a conflict,” he explains. Under the new rules, the law firm would have to apply for special client approval and to apply special technical measures to erect a privacy wall to keep client file access separate. “While these changes affect only Legal Advisors and not Attorneys at Law, it is easy to see how large organizations with dozens of lawyers could encounter problems in organizing their work,” Konarski concludes.