As the first half of 2017 draws to an end, dispute resolution in Poland continues to face dynamic changes. This is due to numerous pieces of legislation being implemented as well as certain policy issues of the ruling party. We focus in this article on several trends or changes that our clients are struggling with or which might affect businesses in the foreseeable future.
The Polish Act on Temporary Employees dated July 9, 2003 (Journal of Laws of 2003, No. 166, item 1608, as amended) has been in force since 2004. The Act contains many flaws, however, resulting in the unequal treatment of temporary employees compared to employees hired directly under employment agreements.
The OECD’s Base Erosion and Profit Shifting (BEPS) Project
A few years ago OECD and G20 Leaders noticed that the international tax landscape had changed dramatically. The financial crisis and aggressive tax planning by multinational enterprises had resulted in significant losses to state budgets, and perceived tax evasion had become part of the political agenda. Consequently, joint actions were taken to increase transparency and the cross-border exchange of information in tax matters and to address the weaknesses of an international tax system that had created opportunities for questionable tax tactics.
On May 17, 2017, a governmental draft of the act on actions for damages caused by in-fringements of Competition law (the “Private Enforcement Act”) was approved by the upper house of the Polish parliament. It is now awaiting the presidential signature. Alt-hough this legislative proposal was forced by EU Directive 2014/104/EU (the “Private En-forcement Directive”) and it mostly transposes its provisions into Polish law, it also intro-duces revolutionary changes to the law of delicts and the corresponding civil procedure.
The new Payment Services Directive (PSD2), scheduled to enter into force on January 13, 2018, will change the established business models in the payment market. This is due to new types of payment services and new rules which oblige banks to assist third party providers (TPP) in accessing their accounts and initiating payment transactions. Much depends on how PSD2 will be transposed into national legislation, a process which should be completed by January 13, 2018.
The Polish tax authorities have once again changed their view on the VAT classification of specific activities. This time, the shift in opinion concerns real estate deals. Until quite recently, tax authorities agreed that in general the sale of a commercial building constituted a supply of goods and thus was subject to VAT.
Wolf Theiss is announcing the arrival of former Allen & Overy Partner Jacek Michalski as a Partner and head of the corporate and M&A practice in the firm's Warsaw office.
SPCG has won a dispute for Olesnica City in the Court of Appeal in Wroclaw against Krzysztof Gołab – an administrative receiver of TIWWAL sp. z o.o. w upadlosci likwidacyjnej (in liquidation bankruptcy) – involving contractual penalties imposed on Olesnica City for the alleged non-submission of the design documentation.
GESSEL has acted as counsel to NPN II, a private equity fund managed by Krokus PE, on its sale of a 100% stake in Comfort S.A. to an entity from the Golbeck Group. PwC Legal reportedly advised on the transaction, which still requires antitrust clearance from the Office of Competition and Consumer Protection.
Schoenherr has advised US asset manager KPS Capital Partners on its acquisition of DexKo Global's production facilities in Austria and Poland from private equity investment firm Sterling Group L.P. Harris Williams & Co. acted as special advisor to Sterling Group L.P.'s Board, and Willkie Farr & Gallagher acted as legal counsel on the acquisition, which closed on July 25, 2017. The financial terms of the transaction were not disclosed.
On June 20, 2017, CEELM reported that mBank sold its majority shares in housing project company mLocum to another housing company called Archicom S.A. in Poland. We reached out to Monika Powroznik, Deputy Director for mBank, to enquire about the cooperation with her external counsel on this specific sale.
With ever-increasing spending on research and development and innovation, patents and patent applications are becoming an increasingly important part of business throughout the world, including Poland. Patentable inventions as well as confidential technological know-how now constitute key assets of numerous businesses operating across all sectors of the Polish market.
WKB has advised OGP Gaz-System SA on its contractor selection procedure and the conclusion of an agreement with Ramboll Danmark A/S, the contractor responsible for carrying out analytical, research, and design work necessary to obtain permits for the construction of the Baltic Pipe. The agreement was signed on August 3, 2017.
CMS has advised REICO, the manager of the largest and oldest Czech open-ended real estate fund, on the purchase of the Proximo I office building in Warsaw from Proximo I sp. z o.o. Sp. K., part of the Hines Russia & Poland fund. In addition to CMS, REICO was advised by international advisory firms CBRE, TPA, and DIL, while the seller was represented by Cushman & Wakefield, Crido, and Dentons.