Poland: What happened in 2021 and significant events in 2022
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Increased consumer protection: In the legislative pipeline there are two draft laws concerning the increased protection of consumers. These will implement Directive No. 2019/2161 (as regards the better enforcement and modernisation of Union consumer protection rules) and Regulation No. 2017/2394 (on co-operation between national authorities responsible for the enforcement of consumer protection laws, repealing Regulation No. 2006/2004). According to the draft laws, the Polish Competition Authority will gain more powers, e.g., a right to conduct searches (and not only inspections) of undertakings in cases concerning the protection of consumer interests. Moreover, consumers will be better protected in the digital sphere. The draft laws will also eliminate certain unfair practices used by undertakings during sales at events. It is expected they will be enacted quickly and will come into force during 2022.
Changes to the Public Offering Act: The Government is planning significant changes including a tender offer regime (which is intended to introduce a voluntary tender offer for shares in a public company, irrespective of the number of shares already held, and to change the mandatory tender offer threshold to 50%). Moreover, it is anticipated that the KNF will receive further powers with respect to public companies.
Changes to the act on financial instruments trading: In 2022, the Government aims to significantly change financial instruments trading. The proposed amendments simplify certain investment firm procedures and extend some powers of the KNF (Komisja Nadzoru Finansowego).
Anticipated changes simplify the procedures for obtaining investment firm authorisation and clarify their obligations regarding clients and data protection. Additionally, there are proposals to add new information obligations for an investment firm under which outsourcing agreements will be notified to the KNF. The changes are part of the Government’s plan to ensure the development of capital markets and protect investors.
New holding company law: The Commercial Companies Code (CC Code) is planned to be amended to introduce a holding company law structure. Parent companies will be given the right to give legally binding instructions to their subsidiaries. The instructions, which are to be given in the interest of the group rather than the subsidiaries, will be binding for the latter.
This planned amendment to the CC Code has been criticised largely due to the limited options for the subsidiaries to not follow the instructions given and the limited scope of liability of the parent company towards the subsidiary and its creditors. The draft wording is being considered by Parliament.
Remote working – regulations on the way: The Government is drafting a bill introducing remote working to the Labour Code. The current wording of the Code doesn’t provide for comprehensive regulation in this field. Presently, remote working is regulated by general rules on telework and the Covid-19 Special Act. However, this is insufficient and incomplete. The new bill will set out a detailed framework for employees on remote working from locations agreed with their employer. It also sets out how employers can oversee employees during working hours and the employee rights as well as health and safety rules.
Changes to sick pay: From 1 January 2022, major changes to how sick pay is calculated will come into force. New regulations provide for, inter alia: (i) reducing the period for collecting sickness allowance; and (ii) including in the sickness allowance benefit period, under certain conditions, periods of previous sick leave.
Implementation of the EU Whistleblowing Directive: In October 2021, the Government Legislation Centre published the draft law for the implementation of the EU Whistleblowing Directive. The draft law creates minimum standards which ensure that individuals reporting or disclosing information about a potential breach of law during their course of employment, are protected. The directive imposes several new obligations on certain employers, including, inter alia, the obligation to establish appropriate internal procedures for receiving and processing reports. Poland will have until 17 December to implement the directive. However, there is no certainty that the legislative process will be completed by then.
Onshore wind industry faces restrictions: Growth of the onshore wind industry in Poland may be hampered by restrictions which are expected to come into force in 2022. The restrictions provide that distances between WTGs (Wind Turbine Generator) and residential buildings must be at least 10 times the height of the wind turbine generator. In May 2021, the Government published a draft Distance law amendment enabling local authorities to shorten that distance to a minimum of 500 metres.
If introduced, the change will be of crucial importance for the future of the industry. Results of the recent CfD (Contracts for Difference) auctions proved critical for the onshore wind sector in Poland. In line with the Polish Regulator’s press release, the CfD auctions (held in June 2021) may result in the development of 2.2GW PV units and only 0.3GW onshore wind farms.
Crowdfunding regulation: Crowdfunding regulation will be introduced to conform existing Polish law on crowdfunding platforms to EU law. The KNF is indicated as the competent authority to supervise these platforms. Moreover, certain information requirements for the issuer of securities will be simplified.
Regulated financial institutions – changes to the outsourcing regime: The Council of Ministers are working on a package of regulations to change the outsourcing regime for regulated financial institutions, specifically bank outsourcing. The new law is intended to relax current barriers in outsourcing and includes, inter alia, (i) extending the possibility of sub-outsourcing by extending the number of suppliers in the supply chain, (ii) changing the rules of outsourcing to non-EEA countries by designation of a prior consent from the regulator for such outsourcing and (iii) deregulation of outsourcing services to the extent these are performed by regulated entities.
Real estate market – significant tax changes: Companies investing in real estate assets in Poland should note the following tax changes:
Polish Order – major tax changes: Revolutionary draft amendments to the Polish tax law titled “the Polish Order” were enacted by the Parliament on 29 October 2021. The changes to the tax regulations, which are likely to be confirmed by the President, will come into force at the beginning of 2022. The act contains over 250 pages of amendments with some regulations still unclear.
Some of the key changes include:
1. Personal income tax (PIT):
In principle, this would effectively lead to an increase in taxation of higher-salaried individuals from 17% to 24.75% and 32% to 39.75%.
2. Minimum corporation tax:
Tax will be imposed on corporate entities in two different scenarios: (i) when a taxpayer reports tax loss in a tax year from sources of revenue other than capital gains, (ii) when a taxpayer reports taxable income from economic activity equal to less than 1% of tax revenue. This rule will also apply to permanent establishments located in Poland. The minimum income tax would equal 10% of a particular tax base – it would cover 4% of tax revenue other than capital gains. In-scope companies should then add to that amount the surplus of expenses due to debt financing incurred in favour of related entities, plus postponed income tax resulting in increasing the gross profit or decreasing the net loss, plus expenses for specific intercompany services or intangibles. There would be the possibility to carry forward the minimum income tax and deduct it from the regular CIT calculated in the following three years.
Long awaited changes in Withholding Tax (WHT) regulations: The WHT pay and refund mechanism (for payments above PLN 2m annually) is expected to be narrowed down to payments of interest, dividends and royalties made to related entities. This change has been postponed several times by the Ministry of Finance since 2019, but is expected to finally come into force in 2022. Other changes include modification of the definition of a beneficial owner and requirements regarding their status.
Draft Electronic Communications law: The draft Electronic Communications law was published in late 2020 and submitted for public consultation in Poland. However, it has not yet been adopted by the Parliament.
The main purpose of the law is to implement the EU Directive 2018/1972 on European Electronic Communications Code. The law will replace the Telecommunications Act 2004 and will be wider in scope, covering not only the telecom sector but all other forms of electronic communications. It will regulate matters related to the rights and obligations of electronic communications entrepreneurs, “over-the-top” (OTT) services, network security, processing of data, direct marketing, and cookies. The time limit for the transposition of the EU Directive has been extended from 21 December 2020 to the second half of 2022.