Poland: What happened in 2020 and significant events in 2021

Polish Law: Year in Review 2020 and Year to Come 2021 captures the key legislative and regulatory changes announced in 2020 and indicates the expected changes for the year to come 2021. There are links to further reading, where available.

Updates in

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key areas in 2020 and 2021

Significant legal and regulatory events in 2020

Legislative changes during 2020 affected a wide range of legal areas. Our team of experts highlight the key points to help you navigate those changes successfully.

Impact of Covid-19: Energy & Infrastructure legislation in 2020 focused on mitigating the adverse consequences of the Covid-19 pandemic and adjusting regulations accordingly. These included an extension of statutory deadlines for completion of the RES projects benefiting from CfD awards resulting from the auctions or permitting significant changes to contracts awarded by way of public procurement.
Covid-related legislation also increased energy consumers’ protection, e.g.  by temporarily suspending the option to cut off gas or energy deliveries to households who had delayed paying bills.

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Simplified Restructuring Procedure: Simplified Restructuring Proceedings were introduced into the Polish legal system based on “Anti-Crisis Shield 4.0”, as a temporary measure, which may be initiated by 30 June 2021. Although the Simplified Proceedings are designed to combat the effects of the Covid-19 pandemic, Shield 4.0 does not make them conditional on the debtor getting into financial difficulties during the pandemic or in connection with its occurrence. The Simplified Restructuring Proceedings are a modified version of the arrangement approval proceedings within the meaning of the Restructuring Law, that are commenced by the debtor rather than the court. The aim of these Simplified Proceedings is to enable a quicker and more effective completion of the arrangement, giving the debtor protection against enforcement of claims by creditors, and at the same time reducing its powers of independent asset management.

DEA exemption for third country firms: A new additional exemption for third country firms conducting certain MiFID activities has been introduced into Polish law.  This exemption allows third country firms to carry out certain MiFID activities, i.e. dealing on own account or executing orders, when using direct electronic access (DEA). There are certain side requirements for firms to be eligible for this exemption, but this may provide a significant opportunity for third country entities in a post-Brexit world.

WHT regulations postponed again: The rules regarding the payments subject to WHT exceeding PLN 2M a year made to foreign taxpayers were further postponed until 30 June 2020 and then until 31 December 2020.

New VAT rates matrix: The introduction of the new VAT rates matrix came into force at the beginning of July 2020. The amendment introduced new lists of goods and services, subject to reduced VAT rates. The new list is no longer based on the Polish Classification of Goods and Services codes of 2008, but on the Combined Nomenclature - for goods: and the current Polish Classification of Goods and Services of 2015 - for services.

Mandatory dematerialisation of shares: A new regulation to the Commercial Companies Code dated 30 August 2019 introduced the mandatory dematerialisation of shares of joint stock companies and partnerships limited by shares. Now, information on shareholders will be disclosed in an electronic shareholders’ register to be maintained by an external entitled entity, i.e. a brokerage house, a bank conducting brokerage activity or the Central Securities Repository. Paper shares shall dematerialise on 1 March 2021.

Identification of shareholders in listed companies: New regulations on the identification of shareholders in listed companies came into force in mid-2020 (implementing the SRD II in Poland). Under the regulations, entities keeping securities accounts or omnibus accounts shall make available to the listed company, information making it possible to identify the shareholders of the listed company and the number of shares issued, held by each of those shareholders. New regulations also introduced other rights and possibilities, aimed at facilitating shareholders’ active participation in the affairs of listed companies.

New legal venture aimed at start-ups: A simple joint stock company will be introduced in March 2021, as a new type of company. This is a hybrid between a limited liability company and a joint stock company aimed particularly at start-ups. The company rules enable resolutions to be adopted electronically, contributions to be made in the form of providing services or work, and shares to be issued without nominal value and to be transferred in a documentary form.

Shares subject to a public offer need to be registered: The new requirement to register shares subject to a public offer came into force in January 2020. Issuers of shares subject to a public offer are required to submit to the Polish Financial Supervision Authority, certain information on these securities and the issuance, within 14 days of their allocation. The requirement does not cover other securities, e.g. bonds, investment certificates etc.

Employment-related measures in response to Covid-19: In response to the Covid-19 outbreak, the Polish Parliament introduced various employment-related measures aimed at protecting workplaces and employers meeting certain criteria (the so called “Anti-Crisis Shield”). Key measures include: (i) reduction of remuneration of employees during economic downtime; (ii) reduction of working time and remuneration of employees; (iii) subsidies for the remuneration reduced during the period of economic downtime and reduced working time; (iv) subsidies for the social security contributions payable by the employer on the benefits granted; (v) introduction of various flexible working time arrangements and less favourable employment conditions for employees; and (vi) deferment of payment of social security contributions. The Anti-Crisis Shield also made it possible for employers to instruct their employees to work remotely as well as lifting certain obligations stemming from labour law for the time of the pandemic (for example: the obligation to carry out periodical medical examinations of employees).

Changes in posting of employees: The Polish regime on posting of employees within the framework of provision of services has been amended as a result of implementing Directive 2018/957. New, innovative, regulations provide for, inter alia: (i) extending the definition of posting of employer so that it also covers temporary work agencies and agencies renting personnel; (ii) a 12-month guarantee period for the application of set minimum employment conditions to an employee posted to Poland (which may be extended up to 18 months) — afterwards extended rules of local employment law apply to posted employees; and (iii) fines for the breach of certain obligations applying to posting of employees ranging between PLN 1,000 and PLN 30,000.

Implementation of Employee Capital Plans (PPK): Since 1 January 2019, an obligation for employers to implement Employee Capital Plans (Pracownicze Plany Kapitałowe) has been in force. During the first phase this private pension savings accumulation system should have been established by the biggest employing entities hiring at least 250 people. They should have concluded contracts for the management of PPK by 25 October 2019 and contracts for operating PPK by 12 November 2019. The next phases of implementation were commenced on 1 January 2020 by companies with at least 50 employed individuals (here, the deadline for concluding the PPK management contract was extended due to Covid-19 to 27 October 2020 and for the PPK operation contract to 10 November 2020). The final phase commenced on 1 July 2020 for those entities with at least 20 employed individuals (with the same deadlines specified in the previous sentence). A failure to fulfil the implementation is subject to a fine ranging between PLN 1,000 to PLN 1,000,000.

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IP courts established in 2020 despite pandemic: Despite the Coronavirus pandemic, specialised intellectual property courts began their work on 1 July 2020. According to the amended Code of Civil Procedure, all cases related to intellectual property, including copyrights, trademarks, inventions, utility models, designs, geographical indications, integrated circuits topographies, unfair competition and some of the IP-related moral rights are to be settled by judges specialising in intellectual property law, in five selected district courts in Poland: Warsaw, Poznań, Gdańsk, Katowice and Lublin. Appeal proceedings in such cases will be settled by the courts of appeal in Warsaw and Poznań. Further amendments to the Code of Civil Procedure concern the implementation of new evidentiary means (i.e. preservation of evidence; information claims), and the obligatory legal representation of the legal advisers, advocates or patent attorneys in most IP cases.

Implementation of the DSM directive still on a rocky road: Work on the implementation of the Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC continues and is currently the subject of public consultations initiated by the Ministry of Culture and National Heritage. Directive 2019/790 shall be implemented by 7 June 2021. The Polish government filed an action for the annulment of Article 17(4)(b) and Article 17(4)(c), in fine of Directive 2019/790 with the CJEU (case C-401/19) arguing it could result in adopting regulations analogous to preventive censorship. Poland raised a plea alleging infringement of the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union which was examined by the CJEU at the hearing on 10 November 2020, during which the Polish government upheld its previous position. The opinion of the Advocate General will be delivered in April 2021.

Significant legal and regulatory events in 2021

The ability to anticipate change is crucial in legal transactions and for managing risk effectively. This section summarises the most important changes to look out for in 2021.

Special Act for offshore wind farms: The Promotion of Electricity Generation in Offshore Wind Farms Act, the so called Offshore Act, should come into force in 2021. Under this draft, support will be provided in two phases. The first phase is dedicated to currently advanced offshore projects, which will be granted the CfD by way of an individual decision from the Polish Regulator. These decisions are to be issued no later than the end of June 2021. The second phase concerns the winners of the auctions scheduled for 2025, 2027 and 2028. The support is to be granted in the form of a right (for 25 years) to cover the negative balance between the market value of sold electricity and its value arising from the individual decision/auction bid. Individual decisions and the auction-based scheme require the approval of the European Commission.

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Amendment of the Distance Law: The Polish Wind Energy Investments Act, so called Distance Law, dated 2016, prohibited issuing new construction permits for wind turbines located closer than 10 times their total height (including tower, nacelle and blades) from any housing estates (“10H” restriction). The “10H” restriction has limited several greenfield project developments and adversely affected the onshore wind industry in Poland. Now Polish authorities have announced planned amendments to the Distance Law, softening the “10H” rule. However, the details are currently unknown. In the most likely scenario, the restriction could be lifted (in specific cases) following the consent of local authorities. The onshore industry expects the amendment to come into force in 2021. This scenario is realistic since compliance of the Distance Law with EU regulations was undermined by the European Court of Justice.

Investment Funds & Alternative Investment Fund: It is intended to implement into the Polish legal system the EU directive on cross-border distribution by collective investment undertakings and on facilitating cross-border distribution of such undertakings in mid-2021. It is aimed at simplifying requirements related to marketing foreign funds in Poland, such as lifting the obligation to appoint a fund’s representative and paying agent.

Implementation of CRD V/CRR II: The Ministry of Finance is working on the implementation of changes resulting from CRD V/CRR II into the Polish legal system. The most important changes will include licensing requirements and supervision powers towards financial holding companies and mixed financial holding companies, changes to the regulatory reporting duties or rules relating to capital requirements.

Implementation of AMLD V: A draft bill adjusting Polish anti-money regulations to the requirements of the 5th Anti-Money Laundering Directive is currently being processed. According to the new law, obliged entities will be required to report any discrepancies regarding beneficial owners detected in the entries in the Polish central beneficial owners register when applying customer due diligence measures. Other changes include: enhancing the frequency and intensity of applying customer due diligence measures, and imposing a ban on credit and financial institutions offering and keeping anonymous accounts, passbooks or safe-deposit boxes. The draft bill requires trust or company service providers to be licensed to conduct their activity in Poland.

Properties’ restitution issue: The amendment to the Act on removing the legal effects of restitution decisions issued in violation of the law concerning Warsaw properties came into force on 20 October 2020. This regulation refers solely to properties within the Warsaw borders and significantly extends the list of prerequisites for issuing decisions on the refusal to establish the right of perpetual usufruct for the benefit of former property owners. It also considerably limits the former owners’ possibilities to pursue their restitution claims. Investors often consider such claims a source of potential investment risk. The general act that comprehensively regulates the restitution of such properties countrywide has still not been adopted. However, seeing the direction of change, it is possible that new amendments, if introduced in 2021, may extend these regulations nationwide.

Definition of real estate company for tax purposes: It is highly likely that a definition of a real estate company will be introduced into the CIT Act. A real estate company will become a remitter of income tax with respect to income obtained from the sale of its shares by its foreign shareholder. If a real estate company does not have information about the value of the transaction, the tax due will be  19% of the market value of the shares being sold. Real estate companies and entities holding shares therein, whether directly or indirectly, will also be obliged to provide the tax authority with information on entities holding shares in the real estate company.

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Imposition of CIT on limited partnerships: CIT tax will most likely be imposed on limited partnerships having their registered office or management board in Poland. These planned changes mean that, in fact, profits achieved by limited partners will be subject to economic double taxation: first at the moment of achievement thereof by a limited partnership, and secondly at the moment when any profits of a partnership are paid out to partners. General partners of limited partnerships will be entitled to deduct from income tax, calculated on income from their shares in profits of a limited partnership, the tax amount paid by such partnership, proportionally reducing the general partner’s profit obtained from participation in such partnership. It is assumed that the planned regulations will apply from 1 May 2021, but the taxpayer can decide whether the limited partnership will obtain the taxpayer status earlier.

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Other important changes in tax regulations: There are several other important tax changes likely to be introduced in 2021. These include: (1) a new obligation to prepare and publish a report on the implementation of tax strategy (for taxpayers whose revenues exceed EUR 50M in a tax year and tax capital groups); (2) extension of the exemption from the tax on revenue from buildings due to Covid-19; (3) increase in the revenue limit which allows application of a reduced CIT rate of 9% from EUR 1.2M to EUR 2M; (4) limitations in settling tax losses.

PFSA proposes one threshold in public tender offers: The changes proposed by PFSA to the Act on public offerings on tender offers, aim to simplify the regulation of tender offers, mainly by establishing only one threshold - 50%. If reached, this threshold would trigger a mandatory bid requirement for all shares in the company (currently, a shareholder crossing the 33%% threshold is required to bid for shares carrying up to 66% votes, then crossing the 66% mark triggers a bid for all shares). PFSA's proposal is based on supervisory experience, judgments of the Supreme Court and analysis of solutions adopted in the EU.

Introduction of holding law: In August 2020, the Government Legislation Centre published on its website draft law proposal of amendments to the Commercial Companies Code. These introduce the so-called holding law. The proposed regulations regulate the relationship between a parent company and its subsidiaries. Parent companies, among others: (1) will be authorised to give binding instructions to their subsidiaries, (2) will get unlimited access to information on their subsidiaries. As the legislation is at an early stage, it is currently impossible to determine precisely when the proposed reform will come into force. 

Electronic Companies Register: From March 2021 it will be possible to apply for the registration of changes in the Companies Register electronically. The same procedure will apply to all documents filed with the Register. This change should significantly speed up the court registration process and facilitate access to company files.

Whistleblowing Directive: The EU Directive No. 2019/1937 on protection of a person who reports breaches of EU law came into force in December 2019. Poland will have until 17 December 2021 to transpose the new rules into national law. The directive envisages minimum standards ensuring that whistleblowers are protected effectively throughout the member states.

New regulations on remote working on the way: The Polish government is working on the draft bill introducing remote working to the Polish Labour Code. Current provisions of the Code do not provide for comprehensive regulation in this field, except for general rules on telework, defined as arrangements assuming the provision of work, on a regular basis, through electronic means of communication. The aim of the new regulation is to reflect the current pandemic work environment and to cover non-regular arrangements, in which the work does not necessarily need to be provided through electronic means of communication. However, the draft is currently at a very early stage of legislative proceedings.

New reporting obligations for social security payers: From 1 January 2021, each social security payer in Poland and a person commissioning performance of a specific task will be obliged to inform the Social Security Office (Zakład Ubezpieczeń Społecznych) on each contract for performance of a specific task (umowa o dzieło) concluded with a person who (i) is not an employee and/or (ii) does not provide services for his/her employer under such a contract. The deadline for submission will be seven days following execution of such contract.

New Electronic Communications Law: In July 2020, the draft Electronic Communications Law was submitted to public consultations in Poland. The main purpose of the act is to implement Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code. According to the draft, the new law should replace the Telecommunications Act of 16 July 2004 and will cover a wider scope of matters, relating not only to the telecommunication sector, but also to all electronic communications. The new Law should regulate inter alia matters related to the rights and obligations of electronic communications entrepreneurs, “over-the-top” (OTT) services, network and service security, processing of telecommunications data, direct marketing and cookies. Directive (EU) 2018/1972 shall be implemented by 21 December 2020. However, in Poland this deadline seems to be unrealistic and the implementation will happen in 2021 at the earliest.
 

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