CEE Legal Matters

Category: Poland

  • Covid-19 – Filing Court Pleadings

    Businesses are still forced to file register applications and pleadings in paper form with handwritten signatures, using a universal postal service provider. Fortunately, the Covid-19 Act gives more time for taking procedural steps and actions. Also, some courts are being pro-active, allowing essential pleadings to be filed via email.

    At the legislative stage, a draft of the recently adopted Covid-19 Act envisaged eagerly anticipated changes, such as:

    • the possibility of filing court pleadings via the Electronic Platform of Public Administration Services (ePUAP), signed with qualified electronic signatures; and
    • the possibility of filing applications and court pleadings via email, with scans of documents bearing handwritten signatures attached.

    However, in its final form, the Covid-19 Act that entered into force on 31 March 2020 offers no solutions that could streamline the process of filing court pleadings while the threat of epidemic or an actual state of epidemic announced in response to the
    Covid-19 outbreak persists. What is more, no measures have been put in place to deal with a potential suspension of operations by the Polish postal service provider.

    Some courts have decided to be more pro-active in their approach, reorganising their work based on instructions issued by heads of particular courts and allowing carefully chosen, essential pleadings (such as appeals and requests for statements of reason) to be filed by email. This is the case, for example, with the regional courts in Warsaw and Gdańsk. The hope is that other institutions will now follow suit.

    Fortunately, the Covid-19 Act changes time limits for taking procedural steps and actions: new time limits will not begin to run and those already running were suspended as soon as the Covid-19 Act entered into force. If nothing else, this solution is guaranteed to considerably lower the demand for court pleadings until the epidemic is under control.

    By Marzanna Sobaniec, Partner, and Cezary Zawislak, Associate, Penteris

  • LWW Opens Doors in Poland

    Former KKLW Partners Krzysztof Lyszyk and Wiktor Wesolowski have left that Polish firm to open their own: LWW.

    According to LWW, the firm ”provides services for both business and the public sector, advising both Polish investors and international corporations. It offers a full range of advisory services for business, at the same time paying particular attention to corporate affairs, mergers & acquisitions, the regulated market, public-private sector cooperation, and dispute resolution.”

    “We provide comprehensive legal advice for businesses, but in deciding to form LWW we wanted to focus on what we are best at – interdisciplinary projects whose fundamental goal is to build and protect our clients’ market position,” says Lyszyk.

    “What sets us apart is our effectiveness, attitude, and innovation,” adds Wesolowski. “We know that, very often, it’s an unwillingness to compromise and 120% engagement that ultimately decides a case. We don’t have a cut-and-dried approach to our work – we look for opportunities and take advantage of them as they arise, and we respond to potential dangers well ahead of time.”

  • Radzikowski, Szubielska i Wspolnicy Advises ZPUE on PLN 180 Million Financing

    Radzikowski, Szubielska i Wspolnicy has advised ZPUE on financing it received from, among others, Santander Bank, Citihandlowy-Bank Handlowy w Warszawie, and ING Bank Slaski. The facility agreement was executed on March 3, 2020, for a total amount of PLN 180 million.

    ZPUE is an electrical switchgear manufacturer based in Poland.

    Radzikowski, Szubielska i Wspolnicy’s team included Partner Agnieszka Piasecka and Senior Associates Joanna Jablonska and Edward Bielinski.

    Radzikowski, Szubielska i Wspolnicy did not reply to our inquiry on the matter.

  • Dentons Advises CPI Property Group on Acquisition of Moniuszki 1A Office Building in Warsaw

    Dentons has advised CPI Property Group on its acquisition of the Moniuszki 1A office building in Warsaw from Canadian investment fund Catalyst Capital.

    According to Dentons, “CPI is engaging in the office market in Warsaw and has invested EUR 800 million in total. As part of this newly launched strategy, CPI already acquired the modern Equator I, II, IV, Eurocentrum, WFC, and Green Corner A office buildings.”

    The Moniuszki 1A office building is located in Warsaw’s Srodmiescie district. The total office space of this nineteen-story building is 10,000 square meters.

    Denton’s team was led by Partner Monika Sitowicz, Senior Associate Andrzej Wloch, and Associate Karolina Ostrowska, with the assistance of Associate Aleksandra Lukasik.

    Dentons did not reply to our inquiry on the matter.

  • Covid-19 – State Support for Businesses

    Over the coming months, businesses will be able to apply for various forms of state support, which may be mixed and matched depending on circumstances.

    Standstill Allowance

    • one-off allowance of PLN 2,080, subject to possible extension for another month
    • for sole traders whose income in the preceding month did not exceed PLN 15,681 and was at least 15% lower than the month before that, provided that they have not suspended operations
    • for sole traders whose income in the preceding month did not exceed PLN 15,681, in the case of sole traders who suspended operations after 31 January 2020
    • for persons working under contracts of mandate made no later than on 1 February 2020, provided that their income in March was at least PLN 1,300 gross (otherwise, they can apply for an amount corresponding to their actual income)
    • persons employed under civil-law agreements whose total income in the preceding month was lower than PLN 1,300 gross can only receive the amount of their last month’s income and not the full amount of standstill allowance

    Social Security Contributions

    • sole traders and persons working under contracts of mandate may be released from the obligation to pay social security contributions for March, April, and May 2020
    • microenterprises may be released from payment of social security and health insurance contributions for March, April, and May 2020, both for entrepreneurs and their employees
    • sole traders who employ other people may be released from the obligation to pay their own social security contributions, provided that their income in the preceding month did not exceed PLN 15,681 net
    • only microenterprises registered with the Polish Social Insurance Institution (ZUS) as contribution payers prior to 1 February 2020 are eligible

    Care Allowance for Children

    • sole traders and persons working under contracts of mandate may receive an additional 14-day care allowance for children up to the age of 8
    • contingent on timely payment of voluntary sickness insurance contributions in the past

    Low-Interest Loans

    • microenterprises may apply to the Labour Office for low-interest loans of up to PLN 5,000 to be repaid within 12 months
    • microenterprises that continue to employ their staff as of 29 February 2020 for the next 6 months will not have to repay the loan
    • available only to microenterprises registered with the Polish Social Insurance Institution (ZUS) as contribution payers prior to 29 February 2020

    Salaries and Flexible Working Hours

    • businesses forced into a standstill due to quarantine may receive a maximum subsidy of PLN 1,533.09 per employee (including social insurance contributions attributable to the employer)
    • if employees are working part-time due to lower turnover, the maximum total amount of subsidy is PLN 2,452 per employee (including social insurance contributions attributable to the employer)
    • for businesses that recorded a drop of at least 15% in sales over two months in 2020 or a month-to-month drop of at least 25% in revenue compared with the corresponding period of the previous year
    • maximum settlement period of 12 months
    • optional introduction of a 12-hour working day as part of a system of equivalence
    • shorter minimum rest periods – 8 hours day-to-day and 32 hours per week
    • possibility of lowering salaries and reducing working time, as well as suspending payment of any bonuses, commissions, etc.
    • no effect on employees’ rights under the Labour Code, including annual leave
    • employers who violate statutory limits will not be eligible for state support

    By Jeremiasz Kusmierz and Piotr Bobrowski, Senior Associates, Penteris

  • DZP Successful for City of Krakow Road Administration Before the National Appeal Chamber

    Domanski Zakrzewski Palinka has successfully represented the City of Krakow Road Administration before Poland’s National Appeal Chamber regarding a PPP project involving the design, construction, and operation of part of a tramway. The City of Krakow Road Administration was also represented by solo practitioner Marzena Juskiewicz.

    According to DZP, “the private partner [on the project] filed an appeal against the Terms of Reference in connection with a breach of the Public Procurement Law, the Act on Public-Private Partnerships, and the Civil Code, inter alia, by the contracting authority using its dominant position and blatantly privileging itself, e.g., by the provisions of the PPP agreement on the division of certain risks, the status of the investor, and the procedure for concluding transactions securing the risk of fluctuations in interest rate.”

    The National Appeal Chamber dismissed the appeal in its entirety.

    DZP also reports that, “the Contracting Authority indicated that the law had not been breached. The questioned provisions of the PPP agreement do not lead to the contracting authority being excessively privileged and they strike a fair balance between the interests of the parties. For example, on the one hand, the PPP agreement contains a number of so-called compensation events for the private partner and, on the other, it provides for a competitive procedure for concluding the transactions for the security required by the public party in a long-term contract.”

    Domanski Zakrzewski Palinka’s team included Senior Associates Michal Wojciechowski and Michal Przychoda. The firm previously advised the Polish Ministry of Development on the same project (as reported by CEE Legal Matters on June 16, 2017).

  • Covid-19 – Anti-Crisis Shield – Leases

    Covid-19 – Anti-Crisis Shield – Leases

    In its current form, the so-called Anti-crisis Shield features a number of regulations concerning lease agreements. An overview of the proposed changes follows.

    Shopping Centres

    Rent Reduction and Limited Liability

    Tenants who meet certain criteria can expect a 90% discount on rent (unless a particular lease agreement offers a more favourable solution) and will not be held responsible for any non-performance or improper performance of the agreement caused by bans or restrictions introduced by the government. The above applies to tenants who:

    • conduct business in shopping centres with sales areas larger than 2,000 m2,
    • are required to suspend or limit their operations due to a threat of epidemic or an official state of epidemic, and
    • suspend their operations, as required.

    It is important to note that all three conditions must be met in order to receive protection. Additionally, if the amounts due are still unreasonably high, courts may adjust them to reflect the generally accepted principles of community life.

    Stores Allowed to Restock on (Most) Sundays

    As long as the threat of epidemic or an official state of epidemic persists, as well as for a period of 30 days after the restrictions are lifted, stores will be able to restock on Sundays unless there is a public holiday that happens to fall on a given Sunday. This means that once the Act enters into force, stores will be allowed to accept, unload, and display basic products on most Sundays, instructing their regular staff to perform these tasks or hiring someone else to do it.

    Commercial and Office Premises

    No Lease or Rent Rate Termination

    Until 30 June 2020, landlords will not be able to terminate lease agreements or rent rates unless the tenant breaches contractual provisions or violates legal regulations on the manner of using premises or unless the building in which the premises are located needs to be demolished or renovated.

    Lease Extension by Tenants

    Tenants will be able to extend lease agreements made before the act enters into force and set to expire after its enactment but before 30 June 2020 without changing lease conditions. As long as the tenant informs the landlord about the intended extension no later than on the planned expiry date, the lease term will be extended until 30 June 2020.

    No such extension is possible if any of the following is the case:

    • the tenant has been in delay with payment of:
    • rent, or
    • other amounts due on account of using the premises, or
    • amounts that the landlord collects on behalf of another person or company

    for (at least) a single settlement period during the last six months before the Act enters into force or – if the agreement was concluded less than six months before the Acts enters into force – during the term of the agreement, and the total amount of debt exceeds monthly rent;

    • the tenant has breached the lease agreement by using the premises in a manner contrary to their agreed or intended use or has damaged the premises by neglecting to perform contractual obligations;
    • the tenant has leased or subleased the premises (or a part of the premises), or allowed a third party to use them free of charge, without obtaining the landlord’s prior written consent as required.

    By Malgorzata Blahuciak, Izabela Bogucka, Iga Piotrowska, Senior Associates, and Alicja Dzienisik, Junior Associate, Penteris

  • Greenberg Traurig and Dentons Advise on Deka Immobilien’s Acquisition of Generation Park Z

    Greenberg Traurig has advised Deka Immobilien on the acquisition of the Generation Park Z office building from Skanska. Dentons advised Skanska on the deal.

    The Generation Park Z is located in the Wola business district in Warsaw. It is a part of the Generation Park office complex, which offers 84,000 square meters of office space and is certified with LEED at Platinum level.

    Greenberg Traurig’s team was supervised by Partner Radomil Charzynski and consisted of Senior Associate Karolina Kuzniak and Associate Michal Niecko.

    Dentons’ team was led by Partner Bartolomiej Kordeczka and Senior Associate Martyna Racz-Suchocka, working with the assistance of Associate Anna Misztela.

  • DLA Piper and Dentons Advise on Elite Partners Capital’s Acquisition of Logistics Park in Warsaw

    DLA Piper has advised Elite Partners Capital on the purchase of a five-warehouse logistics park covering more than 200,000 square meters in the south-west of Warsaw, from P3 Mszczonow. Dentons advised the sellers on the deal.

    Elite Partners Capital is a fund based in Singapore that is engaged in real estate investment and management.

    DLA Piper’s team included Partner Michal Pietuszko, Counsel Bartek Palusiak, Senior Associate Anna Jarczok, Associate Agata Koczorowska, and Junior Associates Pawel Szymanski and Paulina Galicka.

    Dentons’ team included Partner David Dixon, Managing Counsel Jakub Sobotkowski, Counsel Agnieszka Nagorska-Kordeczka, and Associate Paulina Dabek.

  • Covid-19 – Practical Tips from Penteris – Employment and Contracts

    Covid-19 – Practical Tips from Penteris – Employment and Contracts

    On 2 March 2020, Poland’s Parliament adopted the (new) Act on Specific Measures related to Preventing and Combating Covid-19, other Contagious Diseases and Crisis Situations Caused thereby, which allows employers to order employees to work from home. The employer should follow the rules governing so-called telework (Labour Code: ‘work performed regularly outside the employment establishment using electronic communication means, e.g. using computers’).

    If an employer requires employees to work from home, but is not able to provide appropriate and sufficient equipment for teleworking, employees are entitled to full remuneration.

    Labour Costs

    Despite the current economic situation, employers are not allowed to place employees on unpaid leave or decrease their remuneration. Please note for businesses that face complete stoppages, remuneration received by employees during the stoppage period cannot be lower than the employee’s base rate salary (or 60% of the salary if the base rate is not specified). A decrease in remuneration cannot result in payment of remuneration lower than the statutory minimum remuneration for work.

    Employees Unable to Frequent Work due to Covid-19

    Employees infected or placed in quarantine by the Public Health Inspectorate are treated as employees on sick leave and receive remuneration.

    For employees who are unable to come to work due to a lack of means of transport (in particular those unable to return to Poland from overseas), the employer is generally not obliged to pay their remuneration.

    Reacting to Covid-19 Infections

    There is no legal requirement to close an office in case of suspected or confirmed cases of a Covid-19 infection. Obligations to adopt the necessary actions (e.g. quarantine) may be imposed on the employer and/or affected employees by the Public Health Inspectorate. As a result of the general duty to protect the health of employees (if there is a confirmed case of infection), the employer should adopt proportionate preventive measures, such as ordering affected employees to work from home, disinfecting the company’s premises and the suchlike.

    If there is a suspected case of Covid-19, the employer may order employees displaying symptoms of infection to take a medical examination. Potentially infected employees may be ordered to work from home.

    Contracts

    Impossibility to Perform Contractual Obligations

    Under Polish contract law, a party is not liable for damage caused by the non-performance or improper performance of contractual obligations if this is a result of circumstances for which the obliged party is not responsible. Unless agreed otherwise by the parties, the responsibility is on the obliged party to prove that it acted with due diligence in order to perform the obligations correctly.

    At the same time if the performance of one of the mutual obligations becomes impossible as a result of circumstances for which neither party is responsible, the party who was to undertake the performance cannot demand mutual performance, and if already received, the party shall be obliged to return it to the other party. It is worth mentioning that impossibility may be of a factual or legal character. Therefore, this also covers restrictions introduced by the authorities such as quarantine. If the performance by one of the parties becomes impossible only in part, that party loses the right to the appropriate part of the mutual performance. However, the other party may rescind the contract if partial performance would have no significance for it in view of the nature of the obligation or in view of the intended purpose of the contract.

    Unless stipulated otherwise in the contract, in most cases a party objectively precluded from performing a contract may not demand mutual performance from the other party, but on the other hand will not be liable for the non-performance of the contract itself.

    Change of Circumstances as a Reason for Amending Contracts

    If due to an extraordinary change in circumstances, the performance of contractual obligations entails excessive difficulties or exposes one of the parties to a substantial loss which the parties did not foresee, a court may, having considered the parties’ interests, in accordance with the principles of community life, designate the manner in which the obligation should be performed, the value of the performance or even rule to terminate the contract. If terminated, a court may, as needed, decide how accounts should be settled between the parties.

    The party may use this course of action at any time (it is not subject to limitations of time periods of claims) until the obligation (contract) is still in force. This means that if a party fulfils its obligation before lodging a lawsuit it may not demand anything from the other party. Also, if the other party effectively rescinds the contract and e.g. charges the party with contractual penalties, the party affected by extraordinary circumstances will not be able to take advantage of this course of action any longer.

    Practical Solutions to Avoid Future Disputes

    If the performance of a contract is likely to be impacted by the current situation, parties should collect evidence and record the reasons for particular business decisions being taken in reaction to the current situation. Collecting such evidence in the future, after the crisis has passed, may prove to be more difficult.

    Parties are advised to take all possible action to mitigate the damage which can result from a lack of performance of one’s contractual obligations. Potential disputes will focus on ascertaining whether a party defaulting on their obligations acted diligently and in compliance with the principles of contractual loyalty after the extraordinary circumstances occurred. Therefore, the better the affected party acts in the wake of unexpected events, the better the outcomes it can expect.

    By Jeremiasz Kusmierz, Senior Associate, Penteris