Author: kancelaria

The first cases of COVID-19 were detected in China on 17 November 2019. This triggered a series of events which had led to the official declaration of the pandemic by WHO on 11 March 2020. More than two years after the outbreak of the pandemic, under  the Ordinance of the Council of Ministers of 25 March 2022 on the establishment of certain restrictions, orders and prohibitions in connection with the occurrence of the state of epidemic (Journal of Laws item 673), Poland lifts many Covid-related restrictions that had been introduced in the country since 10 March 2020.

Below, we are analysing the main regulations of the above mentioned ordinance, in particular those restoring the “old reality”.

 

Abolishment of the obligatory use of masks

Paragraph 10 of the ordinance in question repeals the ordinance of the Council of Ministers of 25 February 2022, which ordered the covering of mouths and noses with masks in means of public transport, in public areas, during religious worship, in schools and higher education institutions until 31 March 2022. The obligation to wear masks in buildings where medical activities are carried out and in pharmacies will remain valid until 30 April 2022.

 

Abolishment of the isolation and quarantine obligations due to COVID-19

Under the new regulations, the persons who are in quarantine, isolation or home isolation on the date of entry into force of the Ordinance are required to remain so. On the other hand, persons who test positive for COVID-19 will be on sick leaves in line with the ordinary procedures, or sent to home isolation on the basis of the doctor’s decision.

 

Who is considered a COVID-19 vaccinated person?

As defined in the ordinance, a person vaccinated against COVID-19 is a person who has received a valid certificate of protective vaccination against COVID-19 with a vaccine approved for marketing in the European Union or included in the list of vaccine equivalents approved for marketing in the Republic of Poland, as maintained by the National Institute of Public Health – the National Research Institute, and at least 14 days have elapsed since the administration of the single-dose vaccine or the second dose of the two-dose vaccine, and in the case of subsequent doses, since the day of administration of that dose.

 

The issue of the EU digital COVID certificate

The Ordinance specifies two forms of issuing the EU digital COVID certificate:

• in electronic form – automatically via the ICT system referred to in art. 7 of the Act of 28 April 2011 on the information system in healthcare, or
• in paper form – at the request of the data subject, from the ICT system referred to in art. 7 of the Act of 28 April 2011 on the information system in healthcare, by:
  1. entities providing preventive vaccination against COVID-19,
  2. a primary health care physician or a primary health care nurse.

Arrival to Poland from outside the Schengen Area. Abolishment of the quarantine obligation after crossing the border.

As of 28 March 2022, under the provisions of the above mentioned Ordinance, all restrictions regarding travelling to the Republic of Poland are lifted, which means that travellers are no longer obliged to:

– present vaccination certificates when crossing the border,

– test for SARS-CoV-2,

– undergo the so-called entry quarantine.

 

Test orders

Minister of Health Adam Niedzielski also announced that as of 1 April 2022 the testing policy will be changed. Tests will be free only in case of having a doctor’s order.

 

Is this the end of the pandemic?

The Minister of Health also announced that despite the lifting of the restrictions, the epidemic is not over yet. He urged the citizens to continue to be cautious and responsible. In addition, the Minister expects the pandemic to return in autumn, as this is a time of increased risk, when we return to closed spaces. Therefore, the state of epidemic will be maintained in Poland, and, after some time, it may be changed into the state of epidemic emergency.

On 16-17 February 2022, an online conference entitled “RES Market – Trends, Regulations and Practical Problems” was organised by MM Conferences S.A., a company based in Warsaw. The event featured a series of lectures on topics related to the renewable energy sources market, such as the legal conditions for the RES investment process, the support system for RES energy producers, wind energy in Poland, the regulations and prosumer billing following the amendments of the RES Act and the Energy Law.

Mateusz Górniaczyk, trainee legal counsel from the Energy Law Department, represented our Law Firm in the event. He gave a lecture in which he reviewed the latest and planned legal changes on the market of renewable energy sources, including the Offshore Wind Act, the amendment of the RES Act regarding the reduction of licensing requirements for small plants and the modification of the current prosumption system, as well as the upcoming legislative changes related to the adjustment of the Polish legislation to the EU regulations.

One of the important legal changes discussed during the lecture, which we would like to outline briefly, is the introduction of a new prosumption system through the amendment to the RES Act. Under the new system, known as net-billing, electric energy injected into the grid by a prosumer will be billed to an obligated or selected seller at its market value. The value of energy will be determined on the basis of market quotations for electric energy on the day-ahead market. In practice, energy sold by a prosumer will be much cheaper than the purchased one. The new billing system is to come into force as of 1 April 2022. It is also worth mentioning that the amendment introduces the institutions of a virtual renewable energy prosumer and a collective renewable energy prosumer. The former will be able to set up a renewable energy installation on a building that does not belonging to them and still produce energy directly for their own needs. The latter will be able to set up renewable energy installations on multi-apartment buildings and deduct the surplus of produced electricity from the inhabitants’ bills. This will enable groups of energy consumers, who have not had such an opportunity so far, to benefit from the support for prosumer energy. It should be stressed, however, that in general the new system will be less favourable to new prosumers than the current one. The changes will expose prosumers to greater investment risk associated with a longer period of return from the built RES system.

The conference enabled an exchange of opinions and discussing very topical issues and problems with the application of the RES market regulations. The information obtained by our team during the event will certainly be applied by specialists from our Energy Law Department in order to provide comprehensive legal services.

This week the government has adopted a draft law on assistance provided to Ukrainian citizens in connection with the armed conflict on the territory of Ukraine. The regulations are intended to support the Ukrainian citizens who enter Poland directly from the territory of Ukraine in connection with the ongoing operations. The draft law sets out, among other things, the specific rules for legalising residence and employment of citizens of Ukraine, and it includes regulations concerning education, upbringing, care of children and students who are citizens of Ukraine, as well as access to social benefits and medical care for Ukrainian citizens.

Below, we are analysing the main assumptions of the draft Ukrainian special law, in particular those concerning the legalisation of residence of Ukrainian citizens and providing them with access to the labour market, which will definitely make it easier for Polish entrepreneurs to provide assistance to them by, among other things, creating jobs for them.

 

Legalisation of residence

Citizens of Ukraine who left their homeland as a result of the Russian aggression in the period starting on 24 February 2022 and who declare their intention to stay in the territory of our country will be allowed to stay in Poland for 18 months. What is important, the 18-month period will be counted from 24 February 2022, therefore the stay of the above mentioned Ukrainian citizens in the territory of the Republic of Poland will be considered legal until 24 July 2023.

The draft law also provides a procedure for further legalisation of residence of the above mentioned persons. A citizen of Ukraine, whose stay in the territory of the Republic of Poland is or was considered legal on the basis of the above mentioned regulations, will be granted a temporary residence permit, upon request. The permit will be granted once for a period of 3 years, counting from the date of issuing the decision. The Ukrainian citizens can submit the application for granting the above mentioned permit no earlier than after 9 months from the date of entry and no later than within 18 months following 24 February 2022. The Ukrainian citizens who will be granted a temporary residence permit will be entitled to work on the territory of Poland without the need to possess a work permit.

On the other hand, Ukrainian citizens who on 24 February 2022 already stayed on the territory of Poland on the basis of a national visa will have their legal stay and the validity of their visas extended by law until 31 December 2022.

The special law provides also for a deformalised procedure for obtaining the PESEL number by citizens of Ukraine who came to Poland in connection with the war. This solution will enable access for them to a number of public services, including online services, because the act specifies that after obtaining the PESEL number the Ukrainian citizens will also have access to the trusted profile.

 

Work

The draft act provides also for easier employment of Ukrainian citizens, which may be an important aspect for Polish entrepreneurs. The Ukrainians fleeing the war are to be guaranteed access to the Polish labour market and they will be able to register in district employment offices as unemployed persons or persons seeking work.

In order to employ a Ukrainian citizen legally residing in Poland, the employer will only be required to notify the relevant employment office, within 7 days, about having commissioned work to them. The notification will be made via the ICT system – praca.gov.pl.

Ukrainians, whose stay in Poland will be legalised under the special law or the foreigners law, will also be able to undertake and carry out business activity in our country, on the same conditions as Polish citizens – on condition that they obtain the PESEL number.

 

Health care, education, benefits

The Ukrainian special law also includes many other forms of assistance to Ukrainian citizens. They are to be guaranteed access to medical care on similar conditions as Polish citizens. The whole process is to be financed from the state budget, and the National Health Fund will account for each medical service provided to a Ukrainian citizen by the public health service. Free psychological assistance is also to be provided to Ukrainian citizens fleeing the Russian aggression.

Moreover, the draft law includes solutions to ensure access to free education for Ukrainian children, youth and students who fall under the provisions of the law. In addition, the Ukrainians are to be entitled to receive family benefits, child-support benefits, the “good start” benefit and the family care capital, after meeting the relevant conditions.

In principle, the solutions contained in the special law are to enter into force on the day of being announced in the Journal of Laws and apply retroactively as of 24 February 2022.

Link to the draft law discussed above:

Draft law on assistance provided to Ukrainian citizens in connection with the armed conflict on the territory of Ukraine [PL]

The entrepreneurs in the times of pandemics of coronavirus deal with many problems resulting from the provisions introduced connected with the current epidemiological situation. One of them is the issue of possibility to review the Covid passports in order to increase the above the statutory limit of a number of the persons taking part in the events organised, as well as using the services of hotels and restaurants or gastronomic outlets operating therein.

Since mid December, there have been new restrictions applicable, i.a. in the limits of the persons taking part in defined events (e.g. parties or meetings organized in restaurants, weddings or consolations). The limits still do not include those fully vaccinated against COVID – 19. This exclusion may raise enthusiasm and hope of the entrepreneurs for the organization of events or meetings for the more numerous than the limit established from above, a number of the guests invited. However the principle introduced raises also a number of problems for the entrepreneurs due to the lack of regulations allowing for the organisers of such events  to review the fact of being vaccinated by the participants (presenting Union digital COVID certificate – the so called “Covid passport” or the certificate on vaccination, test result and recovery).

The Minister of health during the conference in December indicated that the limits introduced are not applicable for the persons vaccinated. In turn, in reply to the question in what way the entrepreneurs are to check the fact of being vaccinated, as no provisions were introduced which would authorise them to do it he said that currently applicable provisions of the Regulation give a possibility for the organisers, within the events organized by them, to establish internal regulations for the purposes of the events organized. He also indicated that these regulations should be construed in this way that for the established limit the organiser allows the participants to enter without presenting the certificate, and if the limit is exceed the consent of the person wishing to participant in the organized event for the review of the Covid passport, is default. If however they do not present such a passport, they will not just enter and this is the way in which in the opinion of the Minister of health such regulations of the events should be construed.

Certain tools allowing for the entrepreneurs to review the fact of being vaccinated against COVID-19 by the participants wishing to participate in the meeting organised or the event are foreseen by the draft of the act by the Members of Polish Parliament on special solutions assuring a possibility to conduct business activity during the COVID-19 epidemics, which entered the Seym on 14 December 2021. The draft assumes that the entrepreneurs whose clients belong to the group of the persons vaccinated against  COVID-19 (possessing Union digital COVID certificate) or possessing negative test result for coronavirus or the certificate on passed infection are not subject to temporary limitations in the scope of conducting business  activity, such as, i.a. the limit of the clients who can be at the same services in a given room belonging to the entrepreneur. It also foresees the right for the entrepreneur to demand from the client to present a proper document, e.g. certificate on vaccination or passed infection of the SARS-CoV-2 virus. The person who refuses to present the document shall be treated as the person non-vaccinated against COVID-19, not possessing the status of recovery or not possessing negative result of diagnostic test towards COVID-19, which shall mean that the he will have the add person to the established limit of persons.

The works over the project are pending therefore the solutions described above may be modified or specified. However it should be taken into account that the introduction of the act may not solve all the problems which are dealt with by the entrepreneurs concerning the fact of vaccination against COVID-19 or experiencing the infection caused by the
SARS-CoV-2 virus.

 

We have pleasure to inform on recent success in our Law Firm! We had an opportunity to conduct the case with case law nature which completed with obtaining by our Client the favorable judgment in the case and stating the invalidity of the resolution of the meeting of shareholders of the limited liability company.

 

The cases concerned the possibility to suspend a member of the management board of the limited liability company in the situation when the company’s agreement does not settle such an issue. Then the question raises whether the partners dispose of the right to suspend the members of the management board at all.

 

The above issue is not definite as the dispute in the doctrine and judicature lasts until the present day. In the scope two excluding each other interpretations are presented:

1) the meeting of shareholders may not suspend the member of the management board when the company’s agreement does not grant such a right as the regulation of the limited liability company does not contain an analogical standard to the joint stock company which should be interpreted as the aware act of the legislator who in this way did not grant such a right ex lege;

2) it is possible to suspend the member of the management board by the meeting of shareholders even when the company’s agreement does not grant such a right.

 

The Appeal Court in Poznań agreed on the second of the views presented above – presented also by the Law Office from the beginning of the procedure as well as on the stage of recommending to the Client the decision on adopting the resolution in the subject of suspending the member of the company’s management board.

 

The Court stated that the above position is justified with the result of reasoning and  maiori ad minus – if one may want „more”, one may “less”. In accordance with the principle, because the meeting of shareholders may recall the member of the management the more it may suspend him in activities. The court justified also its position with exceptional nature of the regulation of art. 368 § 4 k.s.h. as an exception from the basic principle in accordance with which the supervisory board decides on personal composition of the management board of the joint stock company.

We are currently working on a case for one of our Clients regarding a call for information, where a controversial legal issue has arisen and has now been submitted for decision to the Supreme Court. The issue concerns providing access to subscribers’ data who infringe the author’s economic rights and is based on recently amended provisions of the Code of Civil Procedure (CCP) that introduced the so-called ‘intellectual property proceedings’.

 

However, a court of first instance dismissed our Client’s petition, holding that even though the proceedings proved that the Client was entitled to assert the claims referred to in Article 79(1) of the Copyright Law, the petition could not be upheld under the currently applicable provisions (i.e., Article 479¹¹⁵ of the CCP). In the opinion of the court, the changes in the laws constituting the basis for the petition, made by the Act of 13 February 2020 amending the Code of Civil Procedure and certain other acts (Journal of Laws of 2020, item 288), decidedly limited the scope of information that could be made available when compared to the legal situation before the amendment of, inter alia, Article 80 of the Copyright Law. The court found that currently, there are no grounds to demand access to personal data of subscribers using Internet access services in violation of the author’s economic rights.

 

The JLSW Law Firm filed a complaint against the above decision, indicating that the purpose of introducing the new regulations was the lack of effectiveness in pursuing claims by entitled parties against infringers of intellectual property rights. The problem was the low effectiveness of legal remedies available to them, especially at the pre-trial stage. Therefore, the legislator’s goal was to systematise and create a uniform legal instrument that will enable the rights holder to obtain additional information on the infringement of these rights. In addition, another goal was to not to restrict access to information and the release of documentation to persons whose author’s economic rights have been infringed.

 

As a result of a complaint filed by our Law Firm, the Court of Appeal in Warsaw, VII Commercial and Intellectual Property Division, decided to present a legal issue raising serious doubts to the Supreme Court for resolution:

“Can the court, based on Article 479¹¹⁵ §1.1 of the CCP, when taking into account a request of an entitled party for providing information (referred to in Article 479¹¹³ of the CCP) oblige the entity indicated in Article 479¹¹⁴ item 2 of the CCP to provide information on the names and surnames of producers, manufacturers, distributors, suppliers and other previous holders from or for whom the goods or services were acquired or provided, as well as of the anticipated wholesalers and retailers of those goods or services, in the case of a user of Internet access services using an IP address?” And, in case of a negative answer: “Can the above-mentioned information be made available under Article 479 ¹¹⁵ §1 item 3 of the CCP?”

 

At present, the case has been registered under file reference no. III CZP 59/21 and is waiting for consideration. Undoubtedly, the answer to the above question and the adoption of a resolution by the Supreme Court will allow for correct interpretation of the above provisions and will significantly improve possibilities of obtaining information by entities whose author’s economic rights have been infringed.

Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law will impose a new obligation on businesses to have a ‘whistleblowing’ system in place already in December this year. The directive is commonly referred to as the ‘whistleblower directive’, as it is intended to provide protection to individuals working in the private or public sector who report or disclose information about a breach of law.

 

The obligation to have a reporting system in place will not only be imposed on public administrations or social organizations but also legal entities in the private sector. Beginning from 17 December 2021, it will apply to companies with 250 or more employees. However, for entities with a headcount of 50 or more, the obligation to report breaches will come into effect on 17 December 2023. The situation is slightly different for businesses involved in financial market regulation or AML – those are to be subject to the obligation to implement whistleblower protection requirements regardless of the number of employees.

 

In fact, the concept of whistleblowers is defined quite broadly. According to the directive, a whistleblower can be an employee, a self-employed person, a shareholder or partner in companies (and a member of their bodies), a volunteer or a trainee. Such a person will be protected, in particular, if they have reported a breach through one of the channels provided for in the directive.

 

The directive provides that there will be three channels for reporting breaches in the Member States. The first of these will be internal reporting, which takes place within the organization in which the whistleblower works. Alternatively, there will be external reporting, (i.e., to a relevant outside authority). The last channel is called ‘public disclosure’, which is when the information is made public.

Whistleblowers are to be afforded a number of remedial measures – notably a prohibition on disclosure of identity unless the whistleblower gives consent.

 

The remedies provided for in the directive are also intended to protect against possible retaliation against the reporting person. They ensure that a whistleblower is not sent on unpaid leave, suspended, withheld from promotion or dismissed.

However, it should be noted that we are currently waiting for a draft Polish law which will undoubtedly dispel the remaining uncertainties and help our clients prepare for the upcoming changes.

Incidentally, we are pleased to inform the readers about the recent success of our law firm. In the 35th issue of Newsweek, the managing partner of our firm, legal adviser Tomasz Janaszczyk, had the pleasure to introduce the readers to the planned changes and present the benefits resulting from them. We invite you to read the article.

 

The JLSW Law Firm has once again been recognised in the prestigious ranking of ‘The Legal 500’. For the year 2021, we have been recommended in the area of construction law.

The Legal 500 is a prestigious, international ranking of law firms. For more than 30 years, based on an in-depth, factual analysis of conducted projects and clients’ opinions, it has been identifying and recommending the best specialists in more than 20 areas of law and 150 jurisdictions every year.

To be ranked, a firm must describe its achievements over the past year and provide a list of contacts who can recommend the firm based on their experience. The Legal 500 specialists use independent and constantly improved research tools to establish a hierarchy of the best law firms in each country, taking into account the specialisation of their team on the basis of an analysis of orders and conversations with clients.

Using a comprehensive research program updated every year allows The Legal 500 to reflect the current situation in the legal services market in a particular country and in a particular field very accurately. The ranking is, therefore, a reliable source of information on professional and trustworthy specialists – which is extremely valuable when, for example, looking for someone to cooperate with from a different region of jurisdiction.

 

Below the link to the article on Legal Netlink Alliance page:

https://www.legalnetlink.net/news/jlsw-construction-practice-ranked-in-2021-legal-500