Poland: What happened in 2021 and significant events in 2022
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key areas in 2021 and 2022
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.
ECN+ Directive: For the past two years Poland has been working on the implementation of EU Directive 2019/1 to empower the competition authorities of the member states to be more effective enforcers and to ensure the proper functioning of the internal market. Draft law was published in early 2021 and the legislative work in Poland continues. The most significant change is the introduction of a parental liability doctrine: the possibility of fining a parent company liable for competition law infringements committed by its subsidiary. We expect the draft law to be enacted soon given the deadline for implementation was 4 February 2021.
Anticompetitive agreements – first fines imposed on individuals: For the very first time, the Polish Competition Authority imposed fines on individuals holding management positions who were involved in anticompetitive arrangements between undertakings. So far, such fines have been imposed in three cases: two concerned horizontal agreements regarding inter alia price fixing and market sharing one concerned vertical restraints on resale prices. There are pending cases, so we can expect more decisions imposing fines on individuals next year.
Application of competition rules in employment law: The Polish Competition Authority has initiated two proceedings concerning the application of competition law to employment related arrangements. This follows the growing global trend of competition authorities combating no-poach or wage-fixing arrangements.
Implementation of CRD V/CRR II: Since April 2021, new regulations implementing CRD V/CRR II have been in force. The most important changes include licensing requirements and supervision powers towards financial holding companies and mixed financial holding companies, and changes to the regulatory reporting duties or rules relating to capital requirements.
Investment funds and alternative investment funds: In 2021, the EU directive on cross-border distribution by collective investment undertakings was implemented into Polish law. Polish law now reflects that of the EU, including the law relating to the discontinuing of the marketing of units or shares of a UCITS or AIF. One of the local consequences of the implementation, which may be particularly relevant to foreign funds, is lifting the obligation to appoint a fund representative and paying agent in Poland.
Commercial e-register: In July 2021 the commercial e-register was finally introduced, replacing the old paper register. All company files are now available electronically and it is expected that the registration process will speed up significantly.
Simple joint stock company introduced to the market: Regulations on simple joint stock companies were introduced to the CC Code in July 2021. A simple joint stock company is one that has no share capital and is very simple to establish. It may have a management board, a supervisory board or a board of directors. This is a new form of governance in Polish commercial law. This type of company has been mainly used to establish start-ups quickly. But it may also be utilised for joint ventures.
Social security payers – new reporting obligations: From 1 January 2021, each social security payer in Poland is obliged to inform the Social Security Office (Zakład Ubezpieczeń Społecznych) of each task-related contract (umowa o dzieło) concluded with a person who (i) is not an employee and/or (ii) does not provide services for their employer under such a contract. The deadline for submission is seven days following the execution of the contract.
Contributions for social security of partners of companies: From 18 September 2021, shareholders of single-shareholder limited liability companies and partners of general partnerships, professional partnerships and limited partnerships are subject to social security, regardless of whether the company pursues business activities, generates income or hires employees. The period during which the company’s activity is suspended is excluded from this obligation.
Special Act for offshore wind farms: In early 2021, the new Offshore law came into force. It is a reference point for large wind investments in the Baltic Sea. The law provides for a two-phase CfD support scheme, where the CfD entitlement remains in force for 25 years from the first day of electricity production). In the first phase, CfD support has already been awarded by the Polish Regulator to the most advanced offshore projects. Once the individual CfD support is approved by the European Commission (EC), investors will likely enter into advanced negotiations with banks and financing institutions. The second phase is auction-based and will take place in 2025.
RES friendly changes in the law: The time limit for conducting CfD auctions for the RES (Renewable Energy Sources) installations was initially set for the end of 2021. This period has been extended by six years (until the end of 2027) by the Renewable Energy Sources Act amendment of 11 August 2021, which came into force on 30 October 2021. The extension is subject to the EC’s approval. Under Polish law, the operation of small RES installations is exempt from the obligation to obtain a generation licence. The RES Act amendment expanded the definition of small installations by increasing the upper threshold for their total installed capacity from 500 kW to 1 MW. Extension of the CfD support scheme and the liberalisation of rules concerning green electricity generation is expected to accelerate the RES industry development in Poland.
Real estate company defined for tax purposes: A definition of a real estate company has been introduced by the Corporate Income Tax (CIT) Act. A real estate company is 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 data related to 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, directly or indirectly, are also obliged to provide the tax authority with information on entities holding shares in the real estate company.
Implementation of the fifth Anti-Money Laundering Directive: The Directive which has been implemented in Poland through the Act on Counteracting Money Laundering and Terrorist Financing, sets out, inter alia, additional obligations for entities under which they are required to report any discrepancies regarding beneficial owners detected in the Polish central beneficial owners register when applying customer due diligence measures. Other changes include those relating to high risk factors, the frequency and intensity of applying customer due diligence measures and setting new standards in terms of PEP (Politically Exposed Persons) identification. The regulations also require company service providers or crypto-currency intermediaries to be registered in Poland to be able to conduct their activity.
CIT imposed on limited partnerships: CIT was imposed on limited partnerships which have their registered office or management board in Poland. Profits generated by the partners are subject to double taxation: first when the profit is made by the limited partnership, secondly when the profit is paid out to the partnership. The profits made by Partners of limited Partnerships are non-tax deductible.
New policy for artificial intelligence: In early 2021, a resolution adopted by the Council of Ministers on the development of artificial intelligence in Poland from 2020 was announced (AI Policy). The AI Policy outlines the actions that Poland should implement and the objectives it should achieve in the short term (until 2023), medium term (until 2027), and long term (after 2027). The activities and purposes have been divided into six areas: (i) AI and society, (ii) AI and innovative companies, (iii) AI and science, (iv) AI and education, (v) AI and international co-operation, and (vi) AI and the public sector. The AI Policy aims to help society, companies, academics, and the public administration take advantage of the opportunities arising from the development of AI. The implementation is the responsibility of the Minister of Digital Affairs.
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