Category: News

We would like to present to you the significant changes concerning evictions that have been introduced recently. These may be of key importance for property managers and landlords in particular.

On 14 April 2022, an amendment to the Law on Assistance to Citizens of Ukraine was published (Act of 8 April 2022 on amending the Law on Assistance to Citizens of Ukraine in connection with the armed conflict on the territory of Ukraine and certain other laws, Journal of Laws of 2022, item 830, hereinafter:  “special purpose act” (in Polish: “specustawa”). It repeals the ban on evictions and restrictions on real property auctions, facilitates assigning a PESEL number, introduces new forms of support and broadens the definition of a citizen of Ukraine. The amendment is therefore of significant importance not only for Ukrainian citizens, but also, inter alia, for creditors whose debtors occupy premises without any legal title.

Until now, the total ban on evictions was in force, as introduced in Article 15zzu of the Act of 2 March 2020 on special solutions related to preventing, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them (i.e. J./ L. of 2021, item 2095, as amended). Pursuant to it, during the period when an state of epidemic emergency or a state of epidemic declared due to COVID-19 was in force, no enforcement titles ordering the vacating of residential premises were executed.

Therefore, it was not relevant that the tenant did not pay rent or did not have a legal title to the premises at all – during the coronavirus outbreak no one could be evicted. Admittedly, this provision did not apply to the situation of lending a building or its part to Ukrainian citizens for residential purposes, pursuant to Article 68 of the special purpose act. In this case it was exceptionally possible to evict the tenants.

However, the latest amendment introduces a total repeal of the eviction ban. It was repealed under Article 20 of the special purpose act, which came into force on 15 April 2022. Thus, from now on, the Covid regulations will not protect indebted tenants occupying premises without a legal title. In this context, it is already possible to start enforcing court judgments ordering eviction. It should be noted, however, that due to the large number of evictions in the near future, bailiffs will have a lot of cases, whereas they are limited by time.

Another change implemented by the amendment is the repeal of restrictions on the real property auctions in situation the debtor still lives there. The amendment applies to the Code of Civil Procedure, specifically Article 952¹ § 5 of the CCP. Prior to the amendment, Covid regulations had introduced a ban on auctioning off a residential apartment or land property developed with a residential building, if it was used to provide for the debtor’s housing needs. However, the special purpose act abolishes the above restrictions and repeals Article 952¹ § 5 of the CCP. This change came into force retroactively, i.e. it is effective from 24 February 2022.

In the near future, it is therefore possible to proceed not only with evictions, but also with the auctioning of debtors’ property, even when it is used for residential purposes.

In the latest edition of the prestigious ranking “The Legal 500 Europe, Middle East & Africa 2022″ of 11 April 2022, JLSW Law Firm has been honoured once again. Law firms and individual lawyers from over 80 European countries, including Poland, are ranked in various categories. JLSW Law Firm 2022 is recommended in the area of construction law.

JLSW has been selected as a specialist in construction and public procurement law. JLSW provides legal services to buyers and contract providers, which means that our clients range from construction contractors to companies in the energy sector and architects.

The Legal 500 is a prestigious international ranking of several thousand law firms. For over 30 years, every year, on the basis of an in-depth, material analysis of completed projects and clients’ opinions, it identifies and recommends the best specialists in over 20 areas of law and 150 jurisdictions.

To be included in the ranking, a firm describes its achievements over the past year and provides a list of contacts of people who, based on their experience of cooperation over that period, can give recommendations to the firm. The ranking honours law firms that provide the most professional and innovative advice to clients around the world.

By using a comprehensive research programme which is updated every year, The Legal 500 is able to precisely reflect the current state of the legal services market in a particular country and in a particular field. The ranking is therefore a reliable source of information about professional and trustworthy specialists.

Further to the previous article, which was published on our website on 14 April 2022, this time we would like to discuss in more detail the issues relating to groups of companies and binding instructions.

The amendment of the Code of Commercial Companies (hereinafter: “CCC”) introduces the definition of a group of companies in Article 4 § 1 item 5¹. A group of companies is defined as a parent company and a subsidiary or subsidiaries, being companies, guided, in accordance with a resolution on participation in a group of companies, by a common strategy to pursue the common interest (interest of a group of companies), justifying the exercise of a uniform management by the parent company over the subsidiary or subsidiaries.

Therefore, the definition of a parent company will also be amended to be understood as a commercial company that exerts a decisive influence on the operations of a subsidiary or a subsidiary cooperative, in particular by concluding an agreement between the parent company and the subsidiary providing for the management of the subsidiary or the transfer of profits by it.

The new regulations clarify the grounds for companies comprising a group of companies to follow a common economic strategy. As indicated in the amendment substantiation, this is intended to enable parent companies to exercise uniform management over their subsidiaries. As a result, the key term in the regulation will be „the group interest”, which, in addition to the company interest, should also be taken into account in the activities of the parent company and the subsidiary, unless they are intended at harming the creditors or minority shareholders of the subsidiary.

The provisions of Section IV are to introduce detailed regulations for participation in a group of companies. First of all, both the participation in a group of companies and the designation of the parent company will require a resolution adopted by the general meeting of shareholders or the general meeting of the subsidiary. These facts will have to be disclosed by the parent company and the subsidiary in the Register of Entrepreneurs at the National Court Register. In case of parent companies having their registered offices outside Poland, disclosure of the above information in the subsidiary’s register will suffice.

Another key change in connection with the introduction of a group of companies is the institution of binding instructions. Parent companies will be entitled to issue binding instructions to subsidiaries participating in the group of companies. The binding instructions may concern the handling of the company’s affairs, provided that they are justified by the interest of the group of companies and are not in conflict with specific provisions. Referring to the issued instruction, the subsidiary’s management board will have to adopt a resolution on the execution of the instruction and inform the parent company thereof, or adopt a resolution on refusal to execute the instruction and inform the parent company thereof.

The amendment allows subsidiaries to adopt a resolution on refusal to execute instructions, if:

• the execution would lead to the company’s insolvency or threat of insolvency,
• there is a justified fear that the instruction is in conflict with the company’s interest and will cause damage to it that will not be repaired by the parent company or another subsidiary being a member of the group of companies within two years of the event. Moreover, the company deed or articles of association may provide for other grounds for refusal.

The draft also indicates the requirements to be met by a binding instruction, i.e.:

• it must have the written or electronic form;
• it must indicate:
  • the subsidiary’s conduct expected by the parent company in connection with the execution of the binding instruction,
  • the interest of the group of companies that justifies the execution of the parent company’s instruction by the subsidiary,
  • the anticipated benefits or damages for the subsidiary, if any, which will result from executing the parent company’s instruction,
  • the anticipated manner and time for compensating the subsidiary’s damage incurred as a result of executing the parent company’s instruction.

In addition, the amendment introduces also other regulations relating to groups of companies, such as:

• the parent company’s right of access to the subsidiary’s documents,
• the right of the subsidiary’s shareholders or minority shareholders to file a motion with a court to appoint an expert to examine the accounts and operations of the group of companies,
• the parent company’s liability towards the subsidiary for any damage connected with the execution of a binding instruction and not remedied within the time limit set out in the binding instruction, unless it is not culpable,
• the parent company’s liability towards the subsidiary’s shareholders for reduction in the value of their shareholding resulting from the execution of the binding instruction by the subsidiary.

 

On 4 April 2022 President Andrzej Duda signed the amendment to the Code of Commercial Companies passed by the Polish Parliament. The amendment is of significant importance for all limited liability companies. The changes implemented by the amendment will enter into force six months after the date of its publication.

The amendment introduces into the Commercial Companies Code a definition of a group of companies, and consequently, the definition of a parent company will also be changed. The newly amended regulations also contain a (quite non-transparent) concept of group’s interest, as well as rules concerning participation in a group of companies and the obligation to notify this fact in the register of entrepreneurs of the National Court Register.

Another significant modification is the introduction of the institution of binding instructions that a parent company may issue to its subsidiary in connection with the aforementioned group’s interest, as well as reasons for a subsidiary’s refusal to execute a binding instruction, and rules for the parent company’s liability towards its subsidiary for any damage incurred as a result of executing a binding instruction that was not remedied within the period indicated in the binding instruction.

According to the legislator’s concept, the new regulations are intended to enable a parent company to exercise uniform management over its subsidiaries.

Moreover, the amended regulations also include modification of the statutory rules of liability of members of supervisory boards and management boards in corporate companies. The act introduces the business judgment rule. The idea is that this rule excludes liability for any damage caused to the company as a result of decisions made by the authorities which turned out to be wrong, provided that they were made within the limits of justified business risk and based on information adequate to the circumstances.

The amendment also specifies the obligations of supervisory boards, which will include:

• evaluation of reports on the company’s activities and financial statements for the previous financial year in terms of their compliance with the accounting books and documents, as well as with the factual situation,
• evaluation of the management board’s proposals concerning profit distribution or loss coverage,
• preparing and submitting to the general meeting of shareholders an annual report on the results of the evaluation referred to above and a report on the activity of the supervisory board for the previous financial year (supervisory board report).

In order to be able to diligently perform the aforementioned duties, supervisory boards will have the right to access all documents of the company, review its assets, and request binding explanations from members of the management board, proxies and persons employed in the company or cooperating with the company.

What is more, supervisory boards of limited liability companies and joint-stock companies will have the right to establish ad hoc or permanent committees of the supervisory board; also, a new element is the institution of a supervisory board advisor.

The amendment also provides for a squeeze-out procedure, under which a subsidiary may request its parent company to buy out the shares or stocks of minority shareholders (representing not more than 10% of the share capital), if the parent company holds directly at least 90% of the share capital of the subsidiary.

The changes provided for in the amendment also involve the rules of taking minutes of the management board’s resolutions, as well as inviting to the supervisory board’s meetings.

The discussed amendment to the Code of Commercial Companies is one of the largest and most extensive changes to this act since it was adopted. Given its scale, the individual issues which will be affected by the amendment will be discussed more comprehensively in the next posts.

Keep tuned to our News section for further updates.

The war in Ukraine is having a huge impact on numerous areas of our lives, private, professional and public ones. Entrepreneurs have already noticed a significant increase in the prices of products, fuels and other raw materials necessary for their businesses. In addition, entrepreneurs employing Ukrainian workers have got into a difficult situation overnight, due to the sudden loss of these workers. Indeed, most of the Ukrainian men employed by Polish entrepreneurs have returned to Ukraine to defend their country.

The significant rise in prices, the disruptions in raw material supply chains and the ever-increasing inflation rate may generate further problems, for example, those related to mutual settlements and keeping the deadlines of concluded contracts, in particular public procurement contracts. These types of contracts specify rigid frameworks for performance by contractors, and a failure to meet the deadline for performance of a public procurement contract often results in the imposition of severe contractual penalties by contracting authorities. The same applies to remunerations of contractors, who, at the time of setting the price for their tenders, did not take into account the possibility of such a dramatic change in the de facto global situation.

 

When can a public procurement contract be amended?

The Public Procurement Law provides for the possibility of amending contracts. The relevant regulation is contained in Article 455 of the Public Procurement Law (“PPL”), which lists the circumstances in which an amendment to the contract is permissible and does not require holding a new contract award procedure.

The parties to public procurement contracts can amend their contracts based on the review clauses, as indicated by Article 455.1.1 of the PPL. This provision assumes that the content of a public procurement contract may be amended based on clear, precise and unambiguous contractual provisions, provided for in the procurement notice or in the contract documents. The type and scope of the amendments, as well as the conditions for introducing them in the contract, must be specified. It should be borne in mind, however, that the provisions regarding the rules for introducing price changes must not provide for amendments which would modify the general nature of the contract.

However, in the current situation, Article 455.1.4 of the PPL is gaining particular importance. It provides for the possibility to amend contracts due to circumstances that the contracting authority, acting with due diligence, could not have predicted, provided that the amendment does not modify the general nature of the contract, and the price increase caused by each subsequent amendment does not exceed 50% of the value of the original contract.

For example, in order to justify the need to amend a part of the contract that concerns remuneration with a sudden increase in fuel prices following the outbreak of the war in Ukraine, it must be proved that the increase in the price of fuel, which constitutes one of the main costs of contract performance, was caused by circumstances that the contracting authority, acting with due diligence, could not have predicted. The outbreak of the war in Ukraine and the high inflation rate, both of which resulted in a sudden significant increase in fuel prices, could be regarded as such circumstances.

 

Substantial amendment to a public procurement contract

When introducing amendments to a public procurement contract, one should bear in mind the content of Article 454 of the Public Procurement Law, which introduces the requirement to conduct a new contract award procedure in the event of a substantial amendment to the contract.

Section 2 of the above-mentioned provision indicates what kinds of amendments should be regarded as substantial. Thus, “an amendment to a contract is substantial, if it changes significantly the nature of the contract in relation to the original contract, in particular if the amendment:

• introduces conditions which, had they been applied in the contract award procedure, would or could have attracted other contractors, or would have resulted in the acceptance of different tenders;
• disturbs the economic balance of the parties to the contract in favour of the contractor, in a way that is not provided for in the original contract;
• significantly extends or reduces the scope of benefits and obligations resulting from the contract;
• consists in replacing the contractor to whom the contract has been awarded with a new contractor, in cases other than those indicated in Article 455.1.2.”

We may expect that in the near future contractors will start appealing to contracting authorities to introduce relevant amendments to public procurement contracts, and the contracting authorities’ task will be to precisely analyse the possibilities and grounds for introducing amendments to the contracts, in accordance with the Public Procurement Law.

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.