During the epidemic caused by the COVID-19 pandemic, the Polish Development Fund, within the framework of the Anti-Crisis Shield, introduced two programmes: Financial Shield 1.0 and Financial Shield 2.0. Under both of these programmes, financial support was provided to entrepreneurs; however, in order to receive it, enterprises had to first fulfil a number of requirements stipulated in the regulations of these programmes. Currently, the PFR is addressing calls to some of the entrepreneurs who have managed to receive this financial support to return all the subsidy funds received, together with interest.

In a previous article, we pointed out the irregularities that PFR may invoke when demanding the return of the entire subsidy granted with interest. We encourage you to read the previous text for a comprehensive understanding of this issue. However, what if an entrepreneur who met the requirements for financial support received a payment summons or a payment order?

Request for payment
If you receive a demand for payment, the safest course of action is to write a response to it, raising the issue that the demand is unfounded. This is not a letter that has to be answered within a time limit, however, it is not worth delaying the drafting of such a response. In the case of calls for payment that do not contain any basis, i.e. their content does not specify the specific provisions of the Financial Shield regulations that the entrepreneur, in the opinion of the PFR, has not complied with or has, in the opinion of the PFR, violated, it is advisable to ask the authority in response to such a call on what basis the call for payment was issued. The authority’s response can later be used as evidence in court proceedings and, in the event of inconsistencies between the arguments in such a response and those in the lawsuit, the likelihood of the court dismissing the authority’s action is increased.

Payment order
The next step that can be taken by the PFR is to file a statement of claim, which will be served on the entrepreneur through the court together with the order for payment. In such a situation, it is necessary to draw up an objection to the order for payment within two weeks of its receipt, i.e. two weeks from the day it is delivered by the postman or collected from the post office. The 14-day time limit runs from the day following receipt of the letter (e.g. if you receive the order on Tuesday 16 July, you have until Tuesday 30 July to respond).This time limit is very important due to the fact that if an objection is not made within it by sending it by registered mail or by depositing it at the registry office of the relevant court, the authority’s claim will automatically be recognised, and this will most likely result in bailiff enforcement.Taking the defence in court proceedings and filing an objection will remove such risk from us until the trial is over. The wording of the objection should, by analogy with the response to the order for payment, raise the issue that the order for payment is completely unfounded. It is also important to refute the plaintiff’s claims by, for example, proving that the requirements for subsidy are met through documentation or pointing out logical errors in the opposing party’s argumentation.

Argumentation
The rebuttal of the authority’s claims is a highly individual issue due to the fact that the PFR’s argumentation is likely to be based on the content of the Financial Subsidy Agreement, which for both Shield 1.0 and Shield 2.0 has changed over the years. Given this, it is crucial to have the specific Agreement that the company in question has entered into with the authority and to carefully examine its content in terms of the provisions regarding the need for the company to repay the subsidy in full. However, the most common claim of the PFR will be that the company made false statements in the Application for Subsidy.
It is worth remembering that in the event of a lawsuit, the burden of proof lies with the authority and it is the authority that must prove that the enterprise has submitted an Application containing false information.

If your enterprise has received a summons for payment or a payment order, you are welcome to contact our Law Firm.Our team will assist you not only at the stage of court proceedings, but will also provide comprehensive legal services in the scope preceding the court road.

Authors:

Mateusz Górniaczyk, lawyer

e-mail: mateusz.gorniaczyk@jlsw.pl

Marta Marcinkowska, assistant solicitor

e-mail: marta.marcinkowska@jlsw.pl