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“Anti-Crisis Shield 3.0” – support for Polish entrepreneurs during the Corona Virus pandemic – supplement to version 2.0

“Anti-Crisis Shield 3.0” – support for Polish entrepreneurs during the Corona Virus pandemic – supplement to version 2.0

We regularly inform you about successive governmental bills referred to as “Anti-Crisis Shields”. On 31st March this year the Anti-Crisis Shield 1.0 was adopted and entered into force on the very same day. On 18th April the Anti-Crisis Shield 2.0 entered into force. On 28-29th April 2020 further drafts were published, including a draft law on interest subsidies on bank loans granted to provide liquidity to entrepreneurs affected by COVID-19 (draft law on subsidies), as well as the draft law amending certain laws regarding protective measures with relation to the spread of SARS-CoV-2. On 30th April the latter draft was adopted by the Sejm and passed to the Senate. Government work on the draft law on the subsidies is still ongoing.

Below you will find a summary of the solutions contained in the already binding law, so called Anti-Crisis Shields 1.0 and 2.0, divided into specific relevant topics. We have marked these solutions in black. Whereas the amendments and supplements put forward under the draft law amending certain laws regarding protective measures with relation to the spread of SARS-CoV-2, now called Anti-Crisis Shield 3.0, have been marked in red. In addition, we pointed out in italics the changes proposed under the draft law on subsidies, which, however, has still not been enacted nor submitted to the Sejm in its final version.

This summary was prepared by our law partner sdzlegal Schindhelm and has been kindly made available to us for forwarding.

SDZLEGAL Schindhelm Team

Contents

  1. CO-FINANCING FOR ENTREPRENEURS
  2. WAGE SUBSIDY
  3. STOPPAGE BENEFIT
  4. LOANS TO MICRO-ENTREPRENEURS
  5. NEW SUPPORT FORESEEN IN THE ANTI-CRISIS SHIELD 2.0.
  6. SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
  7. PIT
  8. CIT
  9. VAT
  10. TRANSFER PRICING
  11. OTHER TAXES AND FEES
  12. OTHER TAX ISSUES
  13. LABOUR LAW
  14. REMOTE WORK
  15. LEGALISATION OF FOREIGNERS PERMIT
  16. OCCUPATIONAL SAFETY AND HEALTH (OSH)
  17. THE PROLONGATION OF SOME OF THE COMPETENCES
  18. CREDIT AGREEMENTS
  19. PUBLIC PROCUREMENT
  20. WASTE MANAGEMENT
  21. ENERGY LAW
  22. TOURISM INDUSTRY
  23. LEASE CONTRACTS
  24. TRADE INDUSTRY
  25. FUNCTIONING OF COMPANIES
  26. INVESTMENT FUNDS AND FINANCIAL MARKET SUPERVISION
  27. BUILDING LAW
  28. INDUSTRIAL PROPERTY LAW
  29. SUPPORT FOR CREATORS AND ARTISTS
  30. ADMINISTRATIVE AND COURT ADMINISTRATIVE CASES
  31. CIVIL, CRIMINAL AND PUBLIC PROCURMENT CASES
  32. INSOLVENCY AND RESTRUCTURING PROCEEDINGS
  33. HYBRID DELIVERY

CO-FINANCING FOR ENTREPRENEURS

A part of the costs of business of an entrepreneur who is a natural person and does not employ employees shall be co-financed. The co-financing shall be granted in case of a decrease of the entrepreneur’s turnover by at least 30%.

A turnover decrease is defined as a decrease in the sale of goods or services (in volume or value), calculated as a proportion of the entrepreneur’s total turnover for any 2 consecutive months, falling after 31.12.2019 to the day preceding the date of submitting the application for co-financing, to the total turnover of the entrepreneur reached during analogous 2 consecutive months in 2019. A month is also considered to be 30 consecutive calendar days in a row when the two-month comparative period begins during a calendar month, i.e. on a day other than the first day of the calendar month.

The co-financing is provided by the local authority (starosta) on the basis of a contract concluded with the entrepreneur, for a maximum of 3 months, starting from the month of submission of the application for co-financing. The co-financing amounts:

  • in the event of decrease of the entrepreneur’s turnover by at least 30% – to 50% of the minimum wage per month;
  • in the event of decrease of the entrepreneur’s turnover by at least 50% – to 70% of the minimum wage per month;
  • in the event of decrease of the entrepreneur’s turnover by at least 80% – to 90% of the minimum wage per month.

The co-financing shall be paid on a monthly basis. The entrepreneur is obliged to operate its business during the period for which co-financing was provided. In the event of not operating business for the period described above, the entrepreneur is obliged to return the co-financing without interest, proportionally to the period of not operating the business, within 30 days of the date of delivery of the local authority’s (starosta) call. The Council of Ministers may extend the maximum period of co-financing by a way of a regulation.
The application for the co-financing shall be submitted by the entrepreneur to the local employment agency (powiatowy urząd pracy) having jurisdiction over the place of the conducting business, within 14 days from the date of announcement of recruitment by the director of the local employment agency. We recommend to check regularly the website of the relevant local employment agency.
To the co-financing granted until the date of entry into force of the anti-crisis shield 2.0. the provisions in the wording of the new act shall apply.

In connection with the downtime resulting from counteracting COVID-19, there is no reduction in funding from the State Fund for Rehabilitation of the Disabled (Państwowy Fundusz Rehabilitacji Osób Niepełnosprawnych; PFRON) of the costs of operation of institutes of economic activity (zakłady aktywności zawodowej).

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WAGE SUBSIDY

Employee Benefits Guarantee Fund (Fundusz Gwarantowanych Świadczeń Pracowniczych) shall subsidise employees’ wages for the benefit of entrepreneurs who have recorded a decrease in turnover. The decrease in turnover shall amount to:

  • not less than 15% calculated as the ratio of the total turnover in any two consecutive calendar months after 31.12.2019 until the day preceding the date of application, compared to the total turnover from the corresponding 2 consecutive calendar months of the previous year, or
  • not less than 25% calculated as the ratio of the total turnover for any given calendar month, after 31.12.2019 until the day preceding the application date, compared to the turnover of the previous month.

The employer shall be able to obtain subsidy:

  • up to the amount of 50% of the minimum wage – in case of introducing economic downtime, considering working time;
  • up to the half of the wage for work in reduced working hours, but not more than 40% of the average monthly wage from the previous quarter – in case of a reduction in working hours, considering working time.

The subsidy is not to be granted in relation to the wages of persons whose wage obtained in the month preceding the month in which the application was submitted was higher than 300% of the average monthly salary from the previous quarter, announced by the President of the Central Statistical Office on the basis of regulations on pensions from the Social Security Fund, in force on the date of application.

The maximum period for receiving such benefits shall amount up to 3 months.

The anti-crisis shield 2.0. extends the catalogue of entities that are entitled to apply for this kind of support. Eligible entities are also non-governmental organizations and public benefit organizations as well as state-owned persons. In the anti-crisis shield 3.0. it is proposed to remove state legal persons from the group of eligible entities.

A change regarding the rules of the reduction of employees’ working time was also introduced. The amendment concerns granting employers the right to reduce the working time by maximum of 20%, and not, as before, only equally by 20%. The employee’s remuneration may still not be lower than the minimum wage for work, with reference to the working time.

The subsidy will be paid for a total period of 3 months, starting from the month of submitting the application, and not, as before, from the day of submitting of the application.

The draft law on subsidies proposes to introduce the possibility of obtaining subsidy from the Employee Benefits Guarantee Fund (Fundusz Gwarantowanych Świadczeń Pracowniczych) for the wages of employees not covered by the downtime and reduced working hours in case of a decrease in turnover. Employees’ wages may be co-financed up to half of the amount of such wages, but no more than 40% of the average monthly wage from the previous quarter, in force on the day of application submission.

The subsidy is not to be granted in relation to the wages of persons whose wage obtained in the month preceding the month in which the application was submitted was higher than 300% of the average monthly salary from the previous quarter, in force on the date of application submission.

A significant change in terms of the admissibility of termination of an employment contract after the period of receiving the subsidy was also introduced. The employer is entitled to terminate the employment contract after the period of receiving subsidy. Previously, after the termination of the co-financing, the employer was not entitled to terminate the employment contract for the period corresponding to the period of co-financing. As for now, the employer is obliged not to terminate the employment contract with the employee only during the period of receiving the subsidy to the remuneration due to that employee.

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WAGE SUBSIDY ON THE BASIS OF CONTRACT WITH THE LOCAL AUTHORITY (STAROSTA)

Further funding, not only relating to the remuneration of persons employed under a contract for employment, but also employed under an outwork or contract of mandate or other contract for the provision of services, may be granted by the local authority on the basis of a contract with the entrepreneur. The co-financing concerns part of the wage and due costs on these wages and social security contributions. Micro, small and medium-sized enterprises can apply for this kind of funding.

The condition for obtaining the co-financing is that the entrepreneur shows a decrease in turnover. This term is understood as a decrease in sales of goods or services in quantitative or value terms, calculated as the ratio of the total turnover in any two consecutive calendar months after 1.01.2020 until the day preceding the date of application, compared to the total turnover from the corresponding 2 consecutive calendar months of the previous year. A month is also considered to be 30 consecutive calendar days in a row when the two-month comparative period begins during a calendar month, i.e. on a day other than the first day of the calendar month.

The co-financing amounts:

  • in the event of decrease of the turnover by at least 30% – maximum up to the amount of 50% of the total wage of individual employees covered by the application for co-financing, together with social security contributions due on these wages, but not more than 50% of the minimum wage plus social security contributions from the employer in respect of each employee;
  • in the event of decrease of the turnover by at least 50% – maximum up to the amount of 70% of the total wage of individual employees covered by the application for co-financing, together with social security contributions due on these wages, but not more than 50% of the minimum wage plus social security contributions from the employer in respect of each employee;
  • in the event of decrease of the entrepreneur’s turnover by at least 80% – maximum up to the amount of 90% of the total wage of individual employees covered by the application for co-financing, together with social security contributions due on these wages, but not more than 50% of the minimum wage plus social security contributions from the employer in respect of each employee.

Co-financing may be granted from the day of submitting the application, for a period not longer than 3 months. The anti-crisis shield 2.0. provides for a change in this respect. The funding is due for the entire month in which the application is submitted, and not only for part of the month commencing from the date of submission of the application.

The co-financing shall be paid on a monthly basis, after the entrepreneur submits a declaration on the employment in a given month of employees covered by the contract with the local authority and the wage’s costs of each of these employees and the social security contributions due on those wages, as of the last day of the month for which the co-financing shall be paid. The draft law on subsidies proposes to amend it in such a way that the payment is made on the basis of the data attached to the application, i.e. data on the employment of the employees covered by the application and the amount of wage of each employee covered by the application and the social security contributions due from that wage.

The draft law on subsidies proposes to introduce an obligation for the entrepreneur to inform the local employment agency (powiatowy urząd pracy) within 7 working days of any change in the data concerning the employment of employees covered by the application and the amount of wage of each employee, if this affects the amount of the subsidy paid.

Under the anti-crisis shield 2.0. a regulation was introduced, according to which an entrepreneur is obliged to maintain in employment the employees covered by the contract only for the period for which co-financing was granted. Therefore, the originally introduced requirement to maintain the employment of employees after the end of the subsidy collection was canceled. If this condition is not met, the entrepreneur will have to return the subsidy, without interest, in proportion to the period of failure to maintain in employment the employees covered by the contract, within 30 days from the date of delivery of the notice of the local authority (starosta).

The application for the co-financing shall be submitted by the entrepreneur to the local employment agency (powiatowy urząd pracy) having jurisdiction over the place of the conducting business, within 14 days from the date of announcement of recruitment by the director of the local employment agency. We recommend to check regularly the website of the relevant local employment agency.

The anti-crisis shield 3.0. proposes to introduce the possibility of obtaining the subsidy for the wages of disabled employees, on which the employer benefits from a subsidy to the wages under the provisions of the Act on vocational and social rehabilitation and employment of disabled persons (ustawa o rehabilitacji zawodowej i społecznej oraz zatrudnianiu osób niepełnosprawnych). The subsidy is to be used in the part not subject to co-financing under this Act. The support is to be used by employers who are micro, small and medium-sized enterprises.

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STOPPAGE BENEFIT

Persons conducting business activity and performing civil law contracts shall be entitled to a stoppage benefit, if they are not subject to social insurance on another account. The above is also applicable to foreigners legally residing in the territory of the Republic of Poland.

The stoppage benefit is granted if, following the occurrence of COVID-19, a stoppage in business activity has occurred, respectively, by a person conducting non-agricultural business activity or by ordering party with whom a civil-law contract has been concluded.

The Act on Subsidies provides that applications for stoppage benefit may be submitted only via the IT system made available by ZUS.

A person conducting business activity is entitled to a stoppage benefit if he or she started this activity before 1 February 2020 (the crisis shield 3.0. provides for an extension of this date to 1 April 2020) and:

  • did not suspend the business activity and the revenue from conducting this activity obtained in the month preceding the month of submitting the application for the stoppage benefit was at least 15% lower than the income obtained in the month preceding that month;
  • suspend the business activity after 31 January 2020;
  • The draft law on subsidies additionally provides that the condition for receiving a benefit will be not being subject to social insurance on another account.

A person performing a civil law contract is entitled to a stoppage benefit if:

  • the civil-law contract was concluded before 1 April 2020;
  • the revenue from the civil law contract obtained in the month preceding the month in which the application for the stoppage benefit was submitted was not higher than 300% of the average monthly wage from the previous quarter, announced by the President of the Central Statistical Office (Prezes Głównego Urzędu Statystycznego) on the basis of the regulations on pensions from the Social Insurance Fund, in force at the day of submitting the application;
  • The draft law on subsidies additionally provides that the condition for receiving a benefit will be not being subject to social insurance on another account.

The benefit is a one-off payment of 80% of the minimum wage. The anti-crisis shield 2.0. provides for maximum of three payments in place of only one payment provided for in the anti-crisis shield 1.0. The condition for granting further benefits is to make a declaration that the material situation shown in the application has not improved. A further payment shall be due not earlier than in the month following the month of payment of the previous stoppage benefit. In case of a person running a non-agricultural business activity, to which the provisions on flat-rate income tax in the form of a tax card apply and which has benefited from the exemption of sales from value added tax, the benefit amounts to 50% of the minimum wage.

If the revenues from civil law contracts, obtained in the month preceding the month in which the application for the stoppage benefit was submitted, are less than 50% of the minimum wage for work estimated in 2020, the entrepreneur is entitled to the stoppage benefit in the amount of the sum of wages for the performance of these civil law contracts. Applications for stoppage benefit may be submitted to the Social Insurance Institution (Zakład Ubezpieczeń Społecznych, ZUS) at the latest within 3 months of the month in which the announced epidemic state was cancelled. The Council of Ministers may, by way of a regulation, grant a new payment of the stoppage benefit for persons who have already received this benefit.

No set-off or enforcement proceedings shall be made from the stoppage benefit.

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LOANS TO MICRO-ENTREPRENEURS

A local authority (starosta) may grant a single loan of up to PLN 5.000 to cover the current costs of business for micro-entrepreneur who operated a business before 1.03.2020 1.04.2020. The loan’s fixed interest rate per year is 0,05 of the rediscount rate for bills of exchange accepted by the National Bank of Poland (currently the rediscount rate is 1,05). The repayment period may not exceed 12 months, with a grace period for repayment of capital and interest of 3 months from the date of granting the loan.

An application for a loan is to be submitted by a microentrepreneur to the relevant local employment agency (powiatowy urząd pracy) for the place of conducting the business by that microentrepreneur, after an announcement by the director of the local employment agency. We recommend to check regularly the website of the relevant local employment agency. In the application for a loan, a microentrepreneur declares what was the number of the employees in his firm as of 29.02.2020 in terms of full-time work.

According to the anti-crisis shield 2.0. the conditions of loan remission were changed. The loan may by remitted provided that the entrepreneur will operate the business activity within 3 months from the date of its granting. The requirement to maintain employment and therefore to submit the declaration on employment status was waived. The loan may be also granted to entrepreneurs not employing any employees.

To loans granted before the date of entry into force of the anti-crisis shield 2.0. the provisions in the wording of this new act apply.

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NEW SUPPORT FORESEEN IN THE ANTI-CRISIS SHIELD 2.0.

The anti-crisis shield 2.0. introduced the possibility to provide entrepreneurs with the support necessary to maintain and continue their business activities in the face of threats caused by the economic effects of the COVID-19 pandemic.

The support foreseen in the anti-crisis shield 2.0. applies only to those entrepreneurs whose difficult financial situation is connected with the spread of COVID-19. The support will not be available to entrepreneurs for whom: (i) insolvency was declared or (ii) restructuring proceedings were opened. In case of entrepreneurs, with regard to whom applications for opening of any of the above mentioned proceedings have been submitted, support procedures defined in the anti-crisis shield 2.0. will be suspended until their final consideration.

Support will be offered on market terms for repayable financial instruments, in particular through loans, guarantees, sureties, leasing and other financial instruments. The entity responsible for implementing the support is the Agencja Rozwoju Przemysłu S.A. (“ARP” or “Agency”) and its subsidiaries. The support have to be appropriate to the magnitude of the actual financial impact that the entrepreneur has incurred as a result of the declaration of an epidemic emergency or state of epidemic as well as the scale of its business activity.

An entrepreneur interested in obtaining support must submit an appropriate application together with the following attachments:

  • a statement confirming the difficult financial situation and data concerning the financial situation;
  • a plan of measures which the entrepreneur intends to take to stabilize his financial situation;
  • an authorization to obtain data on the entrepreneur’s financial situation, collected by authorized public bodies and institutions.

A template of the application with a list of attachments and explanations as to how to complete and submit it are to appear on the ARP website. The Agency will also include a detailed list of financial instruments offered. It will be possible to submit the application electronically.

The entrepreneur’s application will be processed immediately, not later than within 14 days of its submission. In case of formal defects, the entrepreneur will be called upon to make them up within 5 days. After positive verification of the application, the entrepreneur will be authorized to conclude a support agreement with the Agency. The agreement will include in particular the rules and deadlines for the transfer of support, its form and value, rules and deadlines for reimbursement, control powers, forms of security and rules of liability. The agreement will be concluded within 5 days from the date of agreeing its terms. In the case of a significant number of applications, the aforementioned deadlines may be extended.

It will be possible to conduct the proceedings by means of electronic communication. If a written form is reserved for the validity of a legal action, during the period of an epidemic emergency or state of epidemic and one month after its cessation, it will be possible to provide the support on the basis of an agreement concluded in a documentary form.

The support will be provided from funds of the state budget or from the European Union’s aid funds intended to help entrepreneurs affected by COVID-19.

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SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

The draft law on subsidies provides that any applications concerning ZUS’s receivables can only be submitted via the IT system made available by ZUS.

At the contribution payer’s request, who reported less than 10 insured persons to social security, unpaid contributions for social security, health insurance, Labour Fund (Fundusz Pracy), Solidarity Fund (Fundusz Solidarnościowy), Employee Benefits Guarantee Fund (Fundusz Gwarantowanych Świadczeń Pracowniczych) or Briding Pension Fund (Fundusz Emerytur Pomostowych), due for the period from 1.03.2020 to 31.05.2020 shall be released. According to the anti-crisis shield 2.0. the condition for the release is that the payer was reported to the social security:

  • before 1.02.2020 and as of 29.02.2020,
  • between 1.02.2020 and 29.02.2020 and as of 31.03.2020,
  • between 1.03.2020 and 31.03.2020 r. and as of 30.04.2020.

The anti-crisis shield 2.0. provides also for the extension of the catalogue of entities entitled to exemption from the obligation to pay social security contributions. It applies also to payers who reported less than 50 insured persons for social security. The exemption concerns 50% of the total amount of unpaid contributions due indicated in the declaration submitted for the given month.

An exceptional provision was also introduced whereby the exemption may also cover contributions paid for March 2020. The contributions paid will be refunded. In principle, however, the exemption still applies only to unpaid contributions.

In the anti-crisis shield 3.0. two new categories of entities are introduced, which are to be entitled to exemption from ZUS for the period from 1 April to 31 May 2020, i.e. for two months of contributions. The self-employed are also to be exempt:

  1. whose revenue from their activity in the first month for which the application is submitted was higher than 300% of the forecasted average gross monthly wage in the national economy in 2020, but their income in February 2020 was less than PLN 7 000;
  2. benefiting from a start-up relief, whose revenue from operations in the first month, for which the application is submitted was higher than 300% of the forecasted average monthly gross wage in the national economy in 2020, or was not higher than 300% of the forecasted average monthly gross wage in the national economy in 2020, but their income in February 2020 was lower than PLN 7 000.

In the case of an entrepreneur who does not employ employees, an application may only be submitted by one who in the first month concerned by the submission of the application achieved revenue from non-agricultural activity not exceeding 300% of the forecasted average monthly gross wage in the national economy in 2020. During the redundancy period the right to social security benefits is retained from the payment of contributions.

Persons covered by agricultural pension insurance are exempt from the payment of contributions for this insurance for the second quarter of 2020.

Under the anti-crisis shield 2.0, a provision was also introduced that revenues from the exemption from the obligation to pay contributions do not constitute revenue within the meaning of the provisions on personal income tax and corporate income tax.

In addition, in the case of a deferral of the payment or a payment in instalments concerning the contributions due for the period from 1 January 2020 no prolongation fee shall be charged if the application is submitted in the right time. Only by way of a regulation may the Minister competent for public finance refrain from collecting interest in whole or in part for late payment of tax arrears. No such regulation was issued so far.
The anti-crisis shield 2.0. provides that Social Insurance Institution (Zakład Ubezpieczeń Społecznych, ZUS), at the request of the debtor, will waive the collection of default interest in the event of late payment of contributions due for the period after 31.12.2019. The exemption will have to depend on the situation of the payer, related to the occurrence COVID-19. The payer will be entitled to submit an application to the Social Insurance Institution within the period of the emergency epidemic state or epidemic state or within 30 days following their cancellation.

The period of entitlement to rehabilitation benefits shall extended for further period of 3 months from the date of expiry of a given decision.

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PIT

Taxpayers who have suffered negative economic consequences due to the COVID-19 epidemic may pay the tax advances collected in March and April 2020 on income from the public service relationship, employment relationship, outwork, cooperative employment relationship, and social security benefits until 1.06.2020.

The provisions regarding PIT payments on the so-called bad debts to the taxpayer who is the debtor do not apply if, as a result of COVID-19, the taxpayer’s revenues in 2020 will be at least 50% lower than the previous tax year. This also applies to taxpayers using flat-rate taxation.

The creditor is still entitled to receive an advance of the unpaid credibility value within 90 days from the payment date. The draft Law on Subsidies includes, that in 2020 the right to receive will be executed within 30 days from the date of payment, if in the given settlement periods the taxpayer have suffered negative economic consequences due to COVID-19. It also concerns taxpayers who in 2020 chose simplified method of paying advances as well as taxpayers using a flat-rate taxation method, but deduction should include an appropriate part of the claim.

Taxpayers, who because of COVID-19 in 2020:

  • will suffer a loss on non-agricultural business activity and
  • will achieve total revenues from non-agricultural economic activity lower by at least 50% than the total revenues achieved in 2019 from this activity,

may once reduce revenue or income achieved in 2019 from non-agricultural economic activity by the amount of this loss, but no more than by the amount of PLN 5 000 000, by submitting a correction of the tax return for this year.

The draft Law on Subsidies also proposes to include contractual penalties and damages as tax deductible costs, if a defect in the goods, works and services performed, or a delay in removing these defects, arose in connection with the state of epidemic threat or the state of the COVID-19 epidemic.

Stoppage benefit received under the COVID-19 Act shall be exempted from income tax. The exemptions also shall apply to taxpayers using flat-rate taxation.

The taxpayer may deduct donations made in 2020 to counteract COVID-19, depending on the month of making a donation up to 200% of its value. The draft Law on Subsidies proposes to expand the catalogue of donor beneficiaries to include care facilities, shelters and Nursing Homes. Donations can also be deducted by a taxpayer using flat-rate taxation. Further tax facilities support applies to entities producing goods related to fighting the epidemic and those conducting research in this area.

In addition, the draft Law on Subsidies provides for the taxpayer’s a right to calculate in-kind donations as the form of personal computers or tablets, that were donated to educational institutions, from the tax base including periods 01.01.2020 to 30.09.2020. The equipment shall be complete and usable and not older than 3 years. In this case the month of donation determines the amount of deduction, giving the possibility of deduction for up to 200%. Donations can also be deducted by a taxpayer using flat-rate taxation.

Donations received to fight COVID-19 under Draft Law on Subsidies shall be exempted from an income tax.

Small taxpayers who have chosen the simplified form of advance payments for 2020 may opt out of it during the tax year if they have suffered negative economic consequences due to COVID-19.

The deadline for tax payments on revenues from properties for the months March-May 2020 is postponed to 20.07.2020 if, as a result of COVID-19, the taxpayer’s revenues in a given month are lower by at least 50% compared to the same month of the previous year tax.

In addition, the draft Law on Subsidies proposes that in a situation of temporary limitation of business activity (other than agricultural activity) resulting from COVID-19, a taxpayer, which pays income tax in the form of a tax card, is not obliged to notify the head of the tax office about the start and end of a break in conducting this activity.

We also note that according to the ordinance of the Minister of Finance, submitting an annual tax return and payment of the tax by the taxpayer by 31.05.2020 (not 30.04.2020) does not result in criminal and fiscal consequences and no default interest is charged. In the anti-crisis shield 3.0. it is suggested that these interest should not be presented in the tax arrears declarations, which may be important for entities applying for financial support under government programs.

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CIT

The provisions regarding CIT payments on the so-called bad debts to the taxpayer who is the debtor does not apply if, as a result of COVID-19, the taxpayer’s revenues in 2020 will be at least 50% lower than the previous tax year.

The creditor is still entitled to receive an advance of the unpaid credibility value within 90 days from the payment date. The draft Law on Subsidies includes, that in 2020 the right to receive will be executed within 30 days from the date of payment, if in the given settlement periods the taxpayer have suffered negative economic consequences due to COVID-19. It also concerns taxpayers who in 2020 chose simplified method of paying advances as well as taxpayers using a flat-rate taxation method, but deduction should include an appropriate part of the claim.

Taxpayers, who due to COVID-19 in 2020:

  • will incur a loss on their activities and
  • will achieve total revenues at least 50% lower than the total revenues achieved in 2019,

may once reduce income achieved in 2019 by the amount of this loss, but no more than by the amount of PLN 5,000,000 by submitting a correction of the tax return for this year. The provisions apply by analogy to tax years that not overlap with calendar years.

The draft Law on Subsidies also proposes to include contractual penalties and damages as tax deductible costs, if a defect in the goods, works and services performed, or a delay in removing these defects, arose in connection with the state of epidemic threat or the state of the COVID-19 epidemic.

The taxpayer may deduct donations made in 2020 to counteract COVID-19, depending on the month of making a donation up to 200% of its value. The draft Law on Subsidies proposes to expand the catalogue of donor beneficiaries to include care facilities, shelters and Nursing Homes. Further tax support applies to entities producing goods related to fighting the epidemic and those conducting research in this area.

In addition, the draft Law on Subsidies provides for the taxpayer’s a right to calculate in-kind donations as the form of personal computers or tablets, that were donated to educational institutions, from the tax base including periods 01.01.2020 to 30.09.2020. The equipment shall be complete and usable and not older than 3 years. In this case the month of donation determines the amount of deduction, giving the possibility of deduction for up to 200%. Donations can also be deducted by a taxpayer using flat-rate taxation.

Donations received to fight COVID-19 under Draft Law on Subsidies shall be exempted from an income tax.

Small taxpayers who have chosen the simplified form of advance payments for 2020 may opt out of it during the tax year if they have suffered negative economic consequences due to COVID-19.

The deadline for tax payments on revenues from properties for the months March-May 2020 was postponed to 20.07.2020 if, as a result of COVID-19, the taxpayer’s revenues in a given month are lower by at least 50% compared to the same month of the previous year tax.

In the anti-crisis shield 2.0. it has been introduced that the condition specified in the CIT Act classifying taxpayers as a capital tax group in the form of not occurring in companies – group members of arrears in tax payments will be considered fulfilled also, if the taxpayer suffers from negative economic consequences due to COVID-19 in 2020.

In addition, we would like to notice that according to the ordinance of the Minister of Finance, the deadline for filing the CIT declaration has been extended. Taxpayers whose tax year ended in the period from 01.12.2019 to 31.01.2020, should file a tax return and pay calculated tax by 31.05.2020.

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VAT

Deadline for all taxpayers for submitting a new JPK_VAT file were postponed from 1.04.2020 to 1.07.2020.

The deadline for submitting notification that a payment has been made to the account not included to the list of VAT taxpayers was extended to 14 days.

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TRANSFER PRICING

The information on transfer pricing may be submitted until 30.09.2020.

In the anti-crisis shield 2.0. the deadline for preparing local transfer pricing documentation and submitting statements on preparation of local transfer pricing documentation has been extended until 30.09.2020. Moreover, the deadline for attaching group transfer pricing documentation to the local transfer pricing documentation has been extended until 31.12.2020.

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OTHER TAXES AND FEES

The annual perpetual usufruct fee (opłata za użytkowanie wieczyste) for 2020 may be paid by 30.06.2020. The Council of Ministers may extend this period by a way of regulation. The draft Law on Subsidies proposed to postpone this deadline until the end of January 2021.

In addition, it is expected that entities which will experience a decline in their economic turnover due to COVID-19, that pay an annual fee for perpetual usufruct of real estate owned by the State Treasury, will be able to reduce their fee in proportion to the number of days in the year in which the epidemic threat and epidemic status were in force. The condition of being entitled to the reduction is to report, that the reduced fee will be paid to appropriate local government unit, and that there will be no arrears in settling the tax liabilities and contributions up to the third quarter of 2019. If the same conditions are met, it may also be possible not to pay a rent and allowances for perpetual usufruct of real estate owned by the State Treasury, for the period of the next three months in 2020, following the month in which the notification was made, and agreement is settled in a form of lease, tenancy or other use agreements concluded for a period of at least three months in relation to real estate belonging to the State Treasury.

Loans granted to entrepreneurs whose financial liquidity has deteriorated in connection with COVID-19 are not subject to tax on civil law acts. The rule applies to contracts made until 31st August 2020.

In the anti-crisis shield 2.0. an obligation to pay the tax on civil law transactions in case of a sale or conversion of virtual currencies is now introduced.

There is no general exemption from property tax: land, buildings, and structures related to business operations. The exemption may be introduced by the district council by way of resolution. In addition, the head of the district council (mayor, city president) may extend the dates of payment of property tax installments payable in April, May, and June, no longer than until 30.09.2020.

A excise tax inspector may decide not to be present at the inspection regarding excise goods. The controlled person should inform the controlling person about the course of the control.

The application of the Retail Tax Act was postponed. It shall first apply to revenues from retail sales achieved from 1.01.2021.

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OTHER TAX ISSUES

If the payment deadline is postponed or taxes paid to the state budget are paid in installments (including PIT, CIT), no extension fee shall be charged if the application is submitted in due time.

The deadline for issuing individual interpretations was extended by additional three months.

During an emergency epidemic state or epidemic state declared due to COVID-19, the running of terms in proceedings and controls conducted under the Tax Ordinance (Ordynacja podatkowa), customs and tax inspections and proceedings in matters related to gambling does not start, and existing terms are suspended for this period. [concerning other deadline see COURT AND ADMINISTRATIVE CASES]

Term does not start, and existing term is suspended also:

  • concerning disposal of the matter without notice by the authority,
  • in other matters, in which the authority’s lack of objection, decision, order or other resolution entitles a party or participant in the proceedings to take action or affect the scope of rights and obligations of a party or participant in the proceedings,
  • for expressing by the authority opinion or for issuing of individual interpretations, except for individual interpretation referred to in Tax Ordinance (Ordynacja podatkowa).

Until 30.06.2020 deadlines for tax schemes other than cross-border schemes may not expire.

In relation to tax schemes, the draft Law on Subsidies defines, that the time limits for tax schemes will not start and deadlines will be suspended for the period from 31.03.2020 to the 30th day after cancellation of the epidemic emergency status or epidemic status. In the case of a cross-border tax scheme, the time limits will be suspended only until 30.06.2020. Regulation will apply from 31.03.2020.

The Council of Ministers may by way of a regulation suspend administrative enforcement proceedings against monetary receivables. Withdrawals from a seized bank account may be made during the suspension period.

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LABOUR LAW

The employer shall be able to reduce wages in the event of economic downtime by no more than 50%. Reduced wages cannot be lower than the minimum wage. An employer who has experienced a decrease in business trading as a result of COVID-19 may reduce working hours by 20%, not more than 0.5 FTEs Employers are granted additional rights to make the working time more flexible. Up to 50% of the minimum wage may be subsidised from the funds of the Employee Benefits Guarantee Fund (Fundusz Gwarantowanych Świadczeń Pracowniczych).

[regarding the reduction of working time for foreigners, see LEGALIZATION OF FOREIGNERS PERMIT].

The draft law on subsidies proposes to introduce the possibility to reduce the working time by up to 20%, not more than to 0.5 full time, or to cover the employee with economic downtime, subject to a reduction in the wages of the employee covered by the downtime by not more than 50%, in the event of a decrease in revenue from the sale of goods or services and a consequent significant increase in the burden on the wages fund. The employee’s wage may not be lower than the minimum wage for work, including the working hours.

A significant increase in the burden on the wage fund shall be understood as an increase in the quotient of the employees’ wages costs, including social security contributions and revenues from the sale of goods or services from the calendar month indicated by the employer and falling from 1 March 2020 to the day preceding the employer’s use of the said entitlement, by no less than 5% in comparison with such quotient from the previous month. Reduction of working time or covering the employee with a downtime under the above rules does not preclude the possibility of applying for a grant from the resources of the Guaranteed Employee Benefits Fund, provided that the relevant conditions are met [see WAGE SUBSIDY].

The draft law on subsidies also provides that in the event of a decrease in turnover or a significant increase in the burden on the wages fund, severance pay, compensation or any other monetary benefit payable by the employer to the employee due to the termination of the employment contract may not exceed ten times the minimum wage for work. This regulation is to apply accordingly in the case of termination of a civil law contract or in connection with the termination of a paid function.

It is also proposed that the employer may suspend the obligation to create or the operation of a company social benefit fund, making a basic contribution to the fund and paying holiday benefits in the event of a decrease in turnover or a substantial increase in the burden on the wages fund. The provisions of collective bargaining agreements or remuneration regulations which set a higher amount of the contributions to the fund and other social and welfare benefits than those set out in the law are also not to apply. In return, the fund’s contributions are to be applied in the amount provided for in the Act on Company Social Benefits Fund.

An employer with a decrease in business trade (by 15% or 25%) may introduce the following changes:

  • reduce the uninterrupted daily rest from 11 to 8 hours;
  • reduce the uninterrupted weekly rest from 35 to 32 hours;
  • conclude an agreement on the introduction of a balanced working time system where it is admissible to extend daily amount of working time, however for not more than 12 hours in the settlement period not longer than 12 months;
  • conclude an agreement on the application of employment conditions less advantageous than the ones stipulated in the contracts of employment concluded with the employees to the extent and for the period determined in the arrangement (so-called crisis agreements).

The anti-crisis shield 2.0. extends the catalogue of employers who are entitled to change the schedule or the system of employees’ working time or to order employees to work overtime, in particular by:

  1. employers employing employees in an enterprise performing the function of an ex officio seller within the meaning of Article 3 (29) of the Act of 10 April 1997 – Energy Law;
  2. entrepreneurs conducting business consisting in the provision of banking activities within the meaning of Article 5 of the Act of 29 August 1997 – Banking Law;
  3. entrepreneurs operating in the agri-food sector, related to with the production or supply of food.

The catalogue of rights of such employers have also been extended by granting them the right to oblige the employee to remain outside normal working hours ready to perform work in the workplace or in another place designated by the employer and to instruct the employee to exercise the right to rest in the place designated by the employer.

The Crisis Shield 3.0 proposes changes to the determining of the amount free of deductions from the wage for work. If, due to activities related to counteracting SARS-CoV-2 virus, the employee’s wage has been reduced or the employee’s family member has lost the source of income, the amounts free from deductions set out in the provisions of the Labor Code are increased by 25% for each non-income family member who is dependent on the employee.

A family member means:

  1. a spouse or parent of a common child, and
  2. a child up to the age of 25, as well as a child over 25 years of age, with a disability certificate if in connection with this disability she or he is entitled to a nursing benefit or special care allowance, or a carer’s allowance.

However, family members do not include a child who is under the care of a legal guardian, a married child or an adult child with their own child.

In addition, the draft law on subsidies proposes to grant the employer the right to grant the employee on the date indicated by him and without the consent of the employee and bypassing the leave plan for overdue annual leave, up to 30 days of leave.

For employers in Phase II of the implementation of Employee Capital Plans (Pracownicze Plany Kapitałowe; PPK) the maximum deadlines for taking the required actions were postponed by adopting the deadlines initially foreseen for Phase III. A contract to manage the PPK shall be concluded by 27.10.2020 and a contract to run the PPK shall be concluded by 10.11.2020.

From the date on which an emergency epidemic state or epidemic state is declared, periodic medical examinations of employees shall be suspended. However, an employee shall still not be admitted to work without a current medical certificate stating that there are no contraindications to work in a particular position, i.e. without an initial examination. The check-up examinations are also not suspended.

If the authorised doctor is not available, the check-up or preliminary examination may be performed by another doctor. Such examination expires after 30 days.

The circle of those entitled to the care allowance is extended to include children who have a judgment with a severe or moderate degree of disability up to the age of 18 or adults with disabilities or a decision on the special needs education. The allowance is also to be granted to persons insured in the Agricultural Social Insurance Fund (Kasa Rolniczego Ubezpieczenia Społecznego; KRUS). The Act also provides for the granting of another care allowance of 14 days due to the necessity of personal care over a child under 8 years old. The Council of Ministers may decide on an extension in a separate regulation.

In the anti-crisis shield 3.0. it is proposed that care allowance will also be granted in the event of closure of a school, rehabilitation center, support center, occupational therapy workshop or other day care center of a similar nature due to COVID-19, attended by an adult disabled person, an insured person work because of the need to personally take care of a disabled adult.

Additional care allowance would also be granted to a person taking care of a disabled child or with a certificate of need for special education, and to a disabled adult also in the case of opening an institution, in a situation where, by the choice of the guardian, the disabled child or person would stay at home and not take advantage of activities conducted by the institution.

The period for receiving care allowance, regardless of whether it will be collected due to the closure of the facility, or when the facility was open, could not be longer than 14 days. The abovementioned allowances are to be due from 25 May 2020.

The anti-crisis shield 2.0. extends the catalogue of the entities authorized to receive care allowances to include police officers, special services, the Border Guard (Straż Graniczna), the State Protection Service (Służba Ochrony Państwa), the State Fire Service (Państwowa Straż Pożarna), the Customs and Tax Service (Służba Celno–Skarbowa) and the Prison Service (Służba Więzienna).

The anti-crisis shield 2.0. grants an additional entitlement to the Prime Minister. In the event of an emergency epidemic state or epidemic state being announced, the Prime Minister by way of regulation is authorized to introduce another day off from work.

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REMOTE WORK

The draft law on subsidies provides for a clarification of the rules of remote work. An order to perform remote work may be issued if the employee has the following skills and the technical and accommodation capacity to perform such work and the type of work permits it. The means of work and materials for work needed to perform remote work as well as logistical support for remote work shall be provided by the employer. When performing remote work, the employee will be allowed to use means of work not provided by the employer, as long as this allows for the respect and protection of confidential information and other legally protected secrets, including company or personal data, as well as information the disclosure of which could expose the employer to damage.

At the employer’s order, an employee performing remote work will be obliged to keep records of the activities performed, including, in particular, a description of those activities, as well as the date and time of their performance.

The order to perform remote work may be withdrawn by the employer at any time.

The rules of the employer’s responsibility for health and safety and in case of accidents are to be changed. at work. The employer is to be responsible for the health and safety of remote work and for accidents at this work only to the extent of the means of work they provide or materials for work.

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LEGALISATION OF FOREIGNERS PERMIT

The deadline for submitting an application for a residence permit shall be extended to 30 days after the cancellation of an emergency epidemic state or state of epidemic respectively. During the above mentioned period the foreigner’s stay will be legal.

The same rules apply to the expiry of the visa and the residence permit.

Under the anti-crisis shield 2.0. the stay in Poland of a foreigner is considered legal up to 30 days after the end of an emergency epidemic state or epidemic state, if the legal basis for this foreigner’s stay in Poland is:

  • Schengen visa,
  • a visa issued by another Schengen State,
  • a residence permit issued by another Schengen State,
  • visa-free regulations,
  • a long-stay visa issued by another Member State of the European Union, which is not a Schengen State, if it entitles its holder to stay in the territory of Poland in accordance with the provisions of European Union law,
  • a residence permit issued by another Member State of the European Union, which is not a Schengen area country, if it entitles its holder to stay in the territory of Poland in accordance with the provisions of European Union law,
  • residence card of a family member of an EU citizen, a document confirming the right of permanent residence and permanent residence cards of a family member of an EU citizen.

During the period of legal residence, a foreigner is entitled to perform work if she/he has a work permit or a declaration of employment.

The anti-crisis shield 3.0 allows for the possibility to change the conditions of performing work by a foreigner specified in temporary residence and work permits (including for the purpose of performing work in a profession requiring high qualifications), work permit, seasonal work permit and declaration of employment. The project solves the problem that we have been paying attention to and introduces the possibility of including foreigners in the agreements on changes in the working hours and salaries of employees.

The anti-crisis shield 2.0. also provides for the extension of the validity of residence cards, the validity of which will expire during the period of an epidemic emergency or state of epidemic. The validity of the cards has been extended to 30 days from the date of the last of the above mentioned states to be cancelled. The same rules apply to temporary identity certificates for foreigners.

Also the validity of the Card of the Pole has been extended to 3 months from the date of cancellation of an emergency epidemic state or epidemic state caused by the COVID-19 virus.

The anti-crisis shield 3.0 also provides for the extension of the validity of Polish foreigners’ identity documents to 30 days from the date of cancellation of an epidemic emergency or state of epidemic caused by COVID-19.

The proposed amendments provide for extending the validity of seasonal work permits to 30 days from the date of cancellation of an epidemic hazard or state of epidemic caused by COVID-19. The condition for extending the seasonal work permit will be to have a permit that was valid after 13 March 2020 or if a foreigner had a declaration of assignment of work entered in the register of declarations in which at least one day of the work period falls after 13 March 2020.

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OCCUPATIONAL SAFETY AND HEALTH (OSH)

Special rules have been introduced for conducting initial OHS training. During the period of emergency epidemic state or epidemic state, initial occupational health and safety training is to be conducted in full by means of electronic communication. This shall not apply to on-the-job training of:

  • an employee employed as a blue-collar-worker;
  • an employee employed in a position exposed to hazardous factors;
  • an employee transferred to the positions referred above;
  • a student undergoing practical apprenticeship or student undergoing a student apprenticeship.

The deadlines for conducting initial and periodic training in the scope of OHS are extended, if the date of their performance would fall during the period of the emergency epidemic state or epidemic state.

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THE PROLONGATION OF SOME OF THE COMPETENCES

Both the anti-crisis shields 1.0. and 2.0. have been prolonged / suspended until after the end of an epidemic emergency or state of epidemic, certain rights and obligations related to the performance of certain works or professions. In addition to regular workers’ medical examinations [see LABOUR LAW] and OHS training [see OHS], this concerns in particular:

  • prolongation of the certificate of disability or degree of disability, partial inability to work, total inability to work, total inability to work and inability to exist independently, inability to exist independently, parking cards for the disabled, pensioner’s identity card (shield 1.0.);
  • prolongation of the trusted profile of entities performing public tasks (shield 1.0.);
  • ADR (transport) prolongation (shield 1.0.);
  • prolongation of the certificate for drivers engaged in road transport (shield 1.0. and 2.0.);
  • prolongation of the authorization of qualified electricians (shield 1.0.);
  • prolongation of certificate of competence in operation of networks and electrical equipment and installations (shield 1.0. and 2.0.).

The anti-crisis shield 3.0 envisages further following prolongations:

  • prolongation of certificates of competence for welding, brazing, soldering and plasticizing and heat treatment in the course of manufacture, repair and modernization of technical equipment and manufacture of components used for manufacture, repair or upgrading of these facilities, and extension of certificates of competence for persons operating and maintaining technical equipment (shield 3.0.);
  • prolongation of the UDT (the Office of Technical Inspection) certificates (shield 3.0.);
  • prolongation of the permits to sell alcohols (shield 3.0.).

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CREDIT AGREEMENTS

  1. change in the repayment terms or dates of the cash loan or credit agreement
  2. It is possible to change the conditions or repayment terms of loan agreements granted before the day 8.03.2020 to micro, small and medium-sized entrepreneurs. Importantly, the changes must be justified by the assessment of the borrower’s financial and economic standing made by the bank not earlier than on the day 30.09.2019 and not on the current situation.

    In the anti-crisis shield 2.0. new entities were added to the catalogue of entities authorized to request an amendment of the conditions of the repayment terms of a cash loan or a credit agreement, in order to include all the entrepreneurs (regardless of the size of their business) and non-governmental organizations.

    An amendment to loan agreement is made on conditions agreed between the bank and the borrower however, it may not cause deterioration of the borrower’s financial and economic situation.

  3. credit subsidies
  4. Draft law on subsidies provides the possibility for entrepreneurs to receive subsidies covering interest on bank loans granted on the basis of loan agreements concluded until 31st December 2020 due to the difficult financial situation arising from the spread of SARS-CoV-2 virus infection.

    The subsidies shall apply to revolving and non-revolving working capital loans, granted in PLN, in order to ensure financial liquidity, and they also shall apply to loan agreements concluded before the date of entry into force of the draft law if their conditions are adjusted to the conditions specified in the law.

    An entrepreneur who meets the following conditions can apply for a loan with a subsidy covering an interest of it if:

    • at the date of 31st December 2019 r. did not meet the criteria of a company in difficulty in the meaning of EU law, and therefore, in particular, it was not in arrears with the payment of contributions and taxes;
    • conducts business activity on Polish territory or has suspended its performance in connection with COVID-19 after 1st February 2020;
    • did not take any other loan under the Act;
    • has lost financial liquidity, understood as the ability to repay liabilities due on time, or is at risk of losing financial liquidity due to the consequences of the spread of COVID-19.

    An application for a loan with a subsidy can be submitted to selected banks. In the application, the entrepreneur will have to make a statement under pain of criminal liability that It meets the conditions for obtaining a loan with a subsidy, and provide documents confirming the loss of liquidity. The bank will grant a loan after verification of the entrepreneur’s creditworthiness, including in the event that the entrepreneur’s difficulties are of a temporary nature and after obtaining a subsidy to a loan, the entrepreneur will regain the ability to pay its liabilities on time and the ability this will be maintained until the end of the loan agreement.

    The loan subsidy will be granted to cover a period of up to 12 months, it will relate to interest on capital and will constitute state aid within the meaning of EU law.

  5. a possibility to suspend the performance of the loan agreement
  6. Draft law on Subsidies provides that during the period of the epidemic emergency or state of epidemic, the borrower, on the basis of the application, is to be entitled to suspend, in particular:

    • consumer loan agreements;
    • mortgage loan agreements;
    • agreements covered by the Act on state aid in the repayment of certain housing loans, granting guarantee bonuses and refunding guarantee bonuses paid to banks.

    If the borrower is a party to more than one loan agreement with a given lender, the application for suspension of performance of the agreement will only apply to one of these agreements.

    In the case of consumer loan agreements and mortgage loan agreements, the suspension will last a maximum of 3 months. It will apply to all contractual payments, with the exception of insurance charges. The agreement suspension period is not to be considered as a loan period. The loan period and all the periods provided for in the agreement are to be extended by the period of suspension of performance of the agreement. The suspension may apply to agreements concluded before 13th March 2020.

    In the case of a loan agreement covered by state aid, the bank will be able to suspend the repayment of the housing loan for a period not longer than 2 quarters throughout the loan repayment period, regardless of on the amount of household income of this borrower. Suspension of repayment will not limit the ability of the borrower to exercise other rights provided for by the State aid rules.

An amendment to loan agreement is made on conditions agreed between the bank and the borrower however, it may not cause deterioration of the borrower’s financial and economic situation. [on deadlines see COURT AND ADMINISTRATIVE CASES]

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PUBLIC PROCUREMENT

Each party to a public procurement contract is required to inform the other party without any delay of the impact, if any, the COVID-19 might have on the proper performance of that contract.

The impact of COVID-19 on the proper performance of the contract must be confirmed by appropriate documents or statements. By way of an example (the catalogue is open), the draft act lists such documents as those relating to:

  • absent employees or other associates who are or could be involved in the execution of the contract;
  • orders issued by voivodes or decisions issued by the Prime Minister related to the countermeasures against COVID-19;
  • the suspension of supply of products, product components or materials as well as difficulties in accessing equipment or difficulties in providing transport services;
  • further circumstances which prevent or significantly limit the possibility of performing the contract.
  • the suspension of supply of products, product components or materials as well as difficulties in accessing equipment or difficulties in providing transport services;
  • further circumstances which prevent or significantly limit the possibility of performing the contract.

The above-mentioned circumstances may also apply to a subcontractor or a second-tier subcontractor.

The anti-crisis shield 2.0. provides that in the case of contractors registered outside of the territory of Poland or conducting activities related to the performance of the contract outside the territory of Poland, instead of the above-mentioned documents, the documents issued by relevant institutions in these countries or statements of these contractors should be submitted.

If the contracting authority decides that the circumstances surrounding the occurrence of COVID-19 may affect or do in fact affect the proper performance of the contract, then, in consultation with the contractor, it may amend the contract by, in particular:

  • changing the delivery deadline or suspending the performance of the contract or parts thereof;
  • changing the way in which supplies, services or works are performed;
  • changing the scope of the contractor’s performance including a corresponding change in contractor’s remunerationor changing the way the contractor’s remuneration is settled.

The draft law on subsidies provides that the contracting authority’s power to amend a contract should be his or her obligation. The contracting authority is to be obliged to amend a contract if circumstances occur that affect its proper performance. Should such circumstances in fact occur, the change of contract will depend solely on the contracting authority’ decision to do so.

In the case of the main contract amendment related to public procurement, the contractor and the subcontractor have to agree on the appropriate amendments to the subcontract. The terms of the subcontract shall not be less favorable than those of the main contract. The same applies to the contract with the subsequent subcontractor.

Moreover, if the provisions of the contract contain more favourable conditions for the contractor concerning the amendments to the contract, the provisions of the contract shall apply and not the COVID-19 Act. The circumstances surrounding the occurrence of COVID-19 do not constitute a valid reason for withdrawal from the contract.

The above mentioned regulations, related to the possibility of making changes to the agreement, apply accordingly to agreements on public procurement, to which the 29.01.2004 Act on Public Procurement does not apply.

The 29.01.2004 Act on Public Procurement regulating public contracts for essential supplies or services does not apply in cases where the protection of public health against COVID-19 so requires or where there is a high probability of rapid and uncontrolled spread of the disease.

During the state of an emergency epidemic state or epidemic state outbreak and regulations related with free movement constraints, it will be possible to conclude public procurement contracts in electronic form bearing a qualified electronic signature, with the consent of the contracting authority.

The draft law on subsidies provides various regulations protecting the contractor. During the period, in which a state of emergency or a state of epidemic in connection with COVID-19 is declared as well as for the consecutive 90 days from the date of cancellation of the last of these states, the ordering party will not be able to deduct any contractual penalty for non-performance or improper performance of the contract The contractor’s remuneration or other claims may not be satisfied by a performance bond.

The condition therefore is that the event, for which this penalty has been reserved, occurred during one of the above-mentioned states.

Public contracts are to continue to be awarded in accordance with the rules of the Public Procurement Law, but with certain modifications. As a rule, the contracting authority is to be obliged to pay the remuneration in parts, after the performance of a part of the contract, or to grant an advance payment for the contract performance. This refers to contracts concluded for a period longer than 12 months. Moreover, the provisions of the contract will have to specify the percentage of remuneration paid for the execution of particular parts, with the percentage value of the last part not exceeding 50% of the contractor’s remuneration and the advance payment not less than 5% of the remuneration due to the contractor. In the case of construction work contracts with a completion date longer than 12 months, the contracting authority should be able to indicate in the contract documents the percentage of the last part of the remuneration, which may not be higher than 50% of the remuneration due to the contractor.

The maximum amount of security on due performance of the contract (hereinafter referred to as „security”) is to be reduced from 10% to 5% of the total price determined in the offer or the maximum nominal value of the contracting authority’s obligation under the contract, unless a higher amount of security (up to 10%) is justified by the subject of the contract or the occurrence of risks related to the execution of the contract, as described by the contracting authority in the Terms of Reference. The contracting authority shall also be entitled to return the performance bond after a part of the contract has been performed, if such an option is provided for in the Terms of Reference.

Proceedings initiated and not completed before the date of entry into force of the new regulations, but also agreements signed as a result of these proceedings and agreements concluded earlier, shall be subject to the previous regulations.

It is also proposed to amend the provisions on the opening of a public procurement procedure by means of an open tender by waiving the obligation to place a notice in a publicly accessible place. It would be sufficient to place an announcement on the orderer’s website.

[on deadlines see ADMINISTRATIVE AND COURT ADMINISTRATIVE CASES]

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WASTE MANAGEMENT

In the absence of technical and organizational possibilities in a voivodship (województwo) required to dispose of waste “generated in connection with counteracting COVID-19 other than medical waste with infectious properties” in accordance with applicable regulations – the local authority (wojewoda) may issue an order regarding the management of this waste also binding for entrepreneurs. The order may also concern:

  • transferring unsorted (mixed) municipal waste to installations other than municipal ones;
  • disposal on landfills or thermal treatment of municipal waste without (any or specific) initial treatment processes.

The order does not have to refer only to municipal waste “generated in connection with counteracting COVID-19”, but to all municipal waste.

Moreover, a voivode may issue an order changing or excluding criteria concerning the selective collection of municipal waste, specified in municipal regulations and provisions of law. Moreover, the local authority (wojewoda) may also, at the request of a commune mayor, change the frequency of municipal waste collection and the manner of providing services by municipal selective waste collection points.

Until the implementing regulations have been issued, municipal waste and waste from the treatment of municipal waste may be thermally treated in an operating installation that had obtained an integrated permit or a permit for processing these waste before the date of entry of the draft act into force.

The problem of classifying municipal waste generated in homes, e.g. by persons in quarantine, and then it’s safe collection remains unresolved. The act also does not introduce the possibility of processing waste beyond the limits resulting from permits. Although the act allows for the possibility of disposal on landfills unprocessed municipal waste, it lacks any regulations regarding the marshal fee.

In the anti-crisis shield 2.0. there was a significant change in those provisions: in the absence of technical and organizational possibilities for the disposal of waste generated “in connection with counteracting COVID-19, other than medical waste with infectious properties” in accordance with applicable regulations – a voivode may issue an order regarding the management of this waste, also binding for entrepreneurs, concerning also the storage of medical waste by their generator.

We also point out that according to the Ministry of Climate and the Chief Sanitary Inspectorate, the waste from persons subject to quarantine should be treated as municipal waste.

The anti-crisis shield 3.0. extends the validity of decisions in the field of waste management, which validity would end during the period of epidemic emergency or epidemic. This applies in to two situations: 1) when the permit for the collection or processing of waste or the permit for the production of waste covering collection or processing of waste or the integrated permit covering collection or processing of waste has been issued for a fixed period of time or 2) when the entity has submitted update application to change the decision by March 5th 2020 – the decision remains valid until the matter is resolved by the authority.

It also extends the deadlines for reports and information obligations under the Act on Waste – a number of provisions are intended to facilitate waste management in fulfilling its obligations (including in the scope of the Waste Database Register z “BDO”). It has been proposed to allow entities keeping paper records to not enter these information to BDO. Thanks to this change, entities keeping paper records will not have to complete this data in BDO. It will also be possible to conduct business after submitting an application for entry into the BDO – you will no longer have to wait for the entry.

In addition, the deadline for submitting reports on municipal and post-consumer waste management is to be postponed.

Commune councils are to be authorized to adapt the regulations for maintaining cleanliness in the commune until the end of 2020 (and not until September 6th 2020).

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ENERGY LAW

Under the anti-crisis shield 1.0. following amendments have been made:

  • the validity of qualification certificates for electricians expiring between 1.03. and 30.06.2020 has been prolonged until 31.12.2020;
  • during the emergency epidemic state or epidemic state the energy enterprises cannot exercise their statutory right to cease supply of gaseous fuels, heat or energy, or terminate the power sales agreements under circumstances set out in the act (in the anti-crisis shield 3.0. this restriction is limited only to certain categories of energy consumers: households and entities whose activity has been banned or limited);
  • renewable energy producers benefiting from the support system may apply to the President of the Energy Regulatory Office (Prezes Urządu Regulacji Energetyki; URE) to prolong the deadline to generate or sale the energy for the first time;
  • the President of the URE has to decide on subsidies for energy-intensive sectors and subsectors for 2019 until 31.07.2020, instead of 30.09.2020.

 

The anti-crisis shield 2.0. is focused on the extension of a variety of deadlines and a decrease in formalities imposed on participants of the electricity market.

The manner of fulfilling of some informational duties of energy companies towards the President of the URE has been changed. The monthly statements about entities commissioning storage, reloading, transmission or distribution of liquid fuels, about types, quantity, and destiny of generated, imported and exported liquid fuels, as well as information about the types and locations of liquid fuels infrastructure may be submitted using electronic mail.

On the terms and conditions set out in details in the anti-crisis shield 2.0., following deadlines and periods are extended:

  • the period for which distribution system operators and LNG system operators has been appointed – until 31.12.2020;
  • the deadline for submission to the President of URE of the draft of the development plan or its update – until 31.03.2021;
  • the deadline for submission to the President of URE of the statements concerning the implementation of the development plan – until 30.04.2021
  • the validity period of license for operating a business in the energy sector – until 31.12.2020, provided that an application for extension at least 30 days prior to the expiry of license has submitted;
  • the deadline to fill in missing parts in the application for license – 60 days (instead of 30), and in the event of proceedings initiated but not completed before or during the emergency epidemic state or epidemic state – 60 days after such state has been called off;
  • the deadline to submit the information about the performance of agreements concerning the purchase of natural gas from abroad – 30 days from the end of the second quarter of 2020 (instead of 30 days from the end of the first quarter);
  • the term of office of commissions issuing the qualifications certificates for electricians – until 31.12.2020 (until 31.12.2020 they are also allowed to do qualifications for operating on grids, devices, and installations remotely).

The draft law on subsidies is about to extend the next validity period, i.e. validity deadline for certificates for electrical fitters in renewable energy sources. It is planned it will remain valid no longer than until 60th day after the day when the epidemic state or the emergency epidemic state has been canceled, whichever takes place later.

The new act modifies detailed rules for announcement, organization and carrying out of auctions for the sale of energy in 2020. In particular, the President of the URE has gotten greater freedom to use the Internet Auction Platform (it enjoyed similar freedom, for other reasons, in 2019). For the next time it is possible to keep in force the grid connection agreements for renewable energy sources that have not been terminated – this time they may be in force until 30.06.2022.

A new definition of energy wood will be applicable until 31.12.2020. It decreases the quality requirements for such wood.

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TOURISM INDUSTRY

The client have the right to withdraw from a travel contract before the start of the event when the need to withdraw has a direct link with the epidemy. On the same basis, the organizer is allowed to terminate such a contract.

The parties shall settle accounts after 180 days. Within this period, a client may agree to accept a voucher worth at least as much as he or she has paid to the organizer – then a rescission or termination do not take effect and the other party may use the voucher within one year from the day the vent was expected to take place.

Similar provisions have been proposed for entrepreneurs and farmers providing accommodation services as well as for fairs and congresses organizers, cultural, entertainment and leisure operators or those who organize exhibitions or outdoor events.

In the anti-crisis shield 2.0. it has been additionally introduced that the rules provided above apply to entrepreneurs not only conducting activities related to the organization of exhibitions and congresses, but also providing rooms and space for training, conferences or exams.

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LEASE CONTRACTS

Subject to detailed rules set out in the draft act:

  • until 30 June 2020 the tenant may make a declaration that the term of the lease contract shall be extended until this date;
  • until 30 June 2020 the landlord is allowed to neither terminate the lease contract nor increase the rent by giving notice;
  • when the termination notice or the rent increase notice has been filed prior to the entry into force of the act and the notice period ends between its entry into force and 30.06.2020, the tenant may make until 30.06.2020 a declaration that the notice period for termination of the lease contract or increase of the rent shall be extended until this date.

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TRADE INDUSTRY

During the ban on operating in commercial facilities having a commercial area exceeding 2.000 m², the mutual obligations of the parties to the lease, tenancy or other similar agreements whereby the commercial area is given for use, expire so as the obligation to pay the rent does.

After the end of the ban, the user of the commercial area (e.g., the tenant) should submit to the party that makes the area available (e.g., the owner of this area) an unconditional and binding offer to extend the term of a contract under current conditions by the duration of the ban plus further six months. The offer should be submitted within three months from the day when the ban was lifted. Provisions concerning the expiration of the mutual obligations of the parties cease to bind upon the ineffective lapse of the period to submit an offer. It means that in such a case the landlord will be allowed to demand from the other party payment of the rent and other fees and charges due for all months when the ban was in force. The Act does not exclude the provisions of the Civil Code regulating contractual relationships in the event of the introduction of legal restrictions on the freedom of economic activity.

The ban on Sunday shopping shall not apply to some activities related to the trade, such as unloading, receipt, and exposition of essentials. Such activities may be carried out by an employer or a worker. This does not apply to Sundays being public holidays.

The application of the Act on Tax on the Retail Sector has been postponed. It shall apply to income generated from 1.01.2021.

The application of the provisions on the consumer contracts to the sole traders, including provisions about the right of withdrawal from distance contracts, has been stopped until 1.01.2021.

The competent ministers will be allowed to adopt regulations providing for maximum prices or maximum wholesale and retail margins applied in the sale of goods or services of key importance for health protection, human safety or costs of living for households. Applying prices and margins higher than the maximum is about to be forbidden under pain of administrative penalty.

The maximum amount of non-interest credit costs shall be decreased.

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FUNCTIONING OF COMPANIES

Board members of limited liability companies and joint-stock companies shall be released from liability for stop making claims to contractors arising in a relationship with non-performance or improper performance of a public procurement contract due to circumstances related to COVID-19. The same protection shall be granted if the public procurement contract was amended. The exemption concerns criminal liability (Article 296 § 1 of the Penal Code – criminal offense of mismanagement) and civil liability (Article 293 § 1 or Article 483 § 1 of the Commercial Companies and Partnerships Code).

The deadline for complying with the obligation to submit information to the Central Register of Beneficial Owners (Centralny Rejestr Beneficjenta Rzeczywistego) shall be postponed from 13.04.2020 to 13.07.2020.

The anti-crisis shield 3.0. provides for the postponement of deadlines related to the obligatory dematerialisation of shares. The deadline for the first call for shareholders to submit share documents in the company is to be changed, from 30 June 2020 to 30 September 2020. It is also planned to postpone the date of expiry of the share documents and obtain the binding force of the entries in the register of shareholders – from 1 January 2021 to 1 March 2021.

The minister competent for financial institutions, by way of a regulation, may set a different date for the adoption by the general meeting of a public company of a resolution on remuneration policy for members of the management board and the supervisory board. At present, there is no information that the minister plans to exercise the aforementioned power, so in the current situation the deadline of 30 June 2020 for adopting such a resolution remains binding.

The possibility shall be introduced to hold meetings by the management and supervisory boards of limited liability and joint-stock companies using the means of communication at a distance (in telephone or video conference mode). The management boards shall be entitled to adopt resolutions also by circulation, also its members shall be entitled to cast votes in favour of resolutions through another board member. The same possibilities shall be provided to supervisory boards. The existing restrictions on the prohibition of adopting resolutions in writing or by means of direct remote communication shall be removed, if they concern the election of the chairman and vice-chairman of the supervisory board, the appointment of the management board and the dismissal and suspension of these persons.

It shall also be allowed to participate in the general meeting of shareholders by means of electronic communication, unless the company contract or its statutes state otherwise. With respect to shareholders’ meetings and general meetings convened before the date of entry into force of the act, the person convening the meeting may decide to enable participation in them by electronic means of communication, subject to the obligation to inform the shareholders thereof in the manner provided for the convening of the meeting and no later than 4 days before the date of the meeting.

Additionally, we point out that in the meantime, the minister competent for public finance has postponed the deadlines for the implementation of financial reporting obligations of commercial law companies and other entities by 3 months.

In the anti-crisis shield 2.0. it has been clarified that within the framework of remote meetings of the supervisory board, the board may also take decisions for which the company contract (statutes) provides for a secret ballot, unless any member of the supervisory board objects. Moreover, the possibility of remote voting has been introduced also in entities other than the companies, i.e. cooperatives, foundations and associations.

It has also been introduced that the subscription for shares under the share capital increase in a joint-stock company in a private placement procedure may be made by the subscriber by filling in a form available in the ICT system and affixing a qualified electronic signature, a trusted signature or a personal signature.

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INVESTMENT FUNDS AND FINANCIAL MARKET SUPERVISION

According to in the regulation of the anti-crisis shield 2.0., participants of the investment fund may participate in the fund’s meeting using electronic communication means. The fund statutes may exclude such a possibility. Participation by means of electronic communication is possible if it has been approved by the person convening the meeting. Electronic participation in a meeting of participants must include in particular: (i) real-time two-way communication enabling the public to express themselves in the course of the meeting and (ii) the possibility to cast the voting rights before or during the meeting.

The notice convening the fund’s meeting of contributors, if the person calling the meeting allows participation by electronic means of communication, must include details of this in its content.

Similar rules, allowing participation in the fund’s meeting using electronic means of communication, are foreseen for the investor board and the investor meeting. The person calling the meeting shall decide on the possibility to participate in the investor board in this way.

Administrative decisions and decisions of the Polish Financial Supervision Authority (Komisja Nadzoru Finansowego, KNF), issued by way of resolutions, may take the form of an electronic document. Such a document must be signed by the chairman or deputy chairman of the Polish Financial Supervision Authority with a qualified electronic signature, a trusted signature or a personal signature to be effective. In such a situation, the KNF office will deliver to the party a copy of the decision or provision, without signature, with an annotation of affixing the decision or provision with a qualified electronic signature, a trusted signature or a personal signature.

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BUILDING LAW

Anti-crisis shield 1.0. shows that in the event of design, construction, reconstruction, renovation, maintenance and demolition of building objects, including changes in the way of use, in connection with counteracting COVID-19, the following provisions shall not apply:

  • the Construction Law,
  • the Act on Planning and Spatial and planning acts referred to in this act,
  • the Act on the Protection of monuments and care for monuments.

Conducting construction works and changing the way of using a building object or its part in connection with counteracting COVID-19 requires the investor to immediately inform the architectural and building administration authority. If conducting construction works, mentioned above, causes a danger for the life or health of people, the architectural and building administration body, by a decision subject to immediate execution, immediately sets the requirements for necessary safeguards for their conduct. In the case of carrying out construction works in connection with counteracting COVID-19, the commencement of which requires obtaining a building permit, the investor is only obliged to ensure that management and supervision of these construction works are taken by a person with building qualifications in the relevant specialties.

According to the anti-crisis shield 2.0. the same principles apply for the design, construction, reconstruction, renovation, maintenance and demolition of buildings regarding the continuity of essential services, in particular in the field of telecommunications, public communications, transport, health services, energy, trade, water or sewage management, sewage treatment, public order, defense.

The Draft law on Subsidies, next to the abovementioned construction works, mentions also changing the way of use the building and emphasizes that the principles described in shield 1.0. may be used in the case of buildings related to maintaining the continuity of essential services, if the performance of specific works or a change of use are necessary to maintain them.

In the case of carrying out construction works or changing the way of use of buildings related to maintaining the continuity of essential services, in the information addressed to the architectural and building administration authority, the investor should justify the circumstances that these works are necessary to maintain the continuity of essential services and are directly used to counteract and combat COVID -19 and submit investor’s statement on the right to use the property for construction purposes. If it is impossible to make a statement due to the permanent inability to obtain the consent of the owner, perpetual usufructuary or property manager, the information sent to the architectural and building administration authority, should also include the justification for this circumstance. In the event of being unable to contact also through the architectural and building administration authority, the authority will issue a decision limiting the way of use of the property by granting an authorization to carry out certain construction works or changing the use of the building object and seizing the property for its execution. The decision will be immediately enforceable. The authority will not make any notifications if the immediate beginning of construction works or changing the way of use of building are necessary to maintain the continuity of essential services directly to counteract and combat COVID-19 or to prevent significant damage and in relation to real estates with unregulated legal status.

The investor for whom a permit for perform of certain construction works or a change the way of use the building will be issued, will be obliged to restore the property to its previous condition immediately after completion of the works or change the way of use the building.

In addition, during the emergency epidemic state or epidemic state announced due to COVID-19, there is no obligation to obtain an occupancy permit regarding to some building objects for which it was obligatory to obtain a building permit, and building objects for which they were to be used before finish all construction works.

Applications for an occupancy permit that have been submitted before the entry into force of the anti-crisis shield, if no decision on the occupancy permit has been issued, will be treated as a notice of completion of construction works. The deadline for filing of an objection in this case will be counted from the date of entry into force of the anti-crisis shield 2.0.

[on deadlines see ADMINISTRATIVE AND ADMINISTRATIVE COURT CASES]

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INDUSTRIAL PROPERTY LAW

In the period from 8.03.2020 to 30.06.2020, the deadline for filing an objection to an application for a trademark and submission of a translation of the European patent into Polish by the Polish Patent Office as well as the deadline for submitting a limited translation into Polish or revised European patent have been stopped. The dates will start again on 1.07.2020.

In the anti-crisis shield 3.0. it is proposed that patent documents, protection certificates and other certificates issued by the Patent Office will affixed with an electronic seal of the Polish Patent Office and a qualified electronic signature of a person authorized by the President of the Office, if were issued in an electronic form,

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SUPPORT FOR CREATORS AND ARTISTS

Creators and artists running their own businesses and working on a mandate contract or a specific work contract may receive financial support up to 80% of the minimum wage.

The collection of remuneration for the organization of collective management of copyright or related rights (including the association of authors ZaiKS) is suspended. The obligation to transfer payment on the revenue generated from the screening of films and advertisements in the cinema to the Polish Film Institute (Polski Instytut Sztuki Filmowej) and the data related to it by the cinema operator is also abolished.

The draft Law on Subsidies proposes introducing the payment obligation for leading entities, providing on-demand audiovisual media service (e.g. Netflix, HBO etc.), for state of the Polish Film Institute in amount of 1.5%, calculated from a total revenue, generated by those entities from users fees for an access to publicly available media services.

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COURT AND ADMINISTRATIVE CASES

In the period an emergency epidemic state or epidemic state declared due to COVID-19 the deadlines specified in the administrative law shall stop or be suspended. This applies to:

  • deadlines on which depends the right to seek a remedy before a court or an administrative body as well as deadlines to perform by the party any action which may modify rights or obligations that party;
  • limitations periods for claims or other deadlines, the exceeding of which leads to expiration or alteration of property law rights or claims and receivables as well as falling into delay;
  • mandatory time-limits, the exceeding of which may produce negative effects to the party;
  • deadlines for making entries by entities or organizational units subject to the entry in the appropriate register of activities that cause the obligation to report to this register, as well as time limits for the performance of obligations by these entities resulting from the regulations on their system – this includes, in particular, entries in Central Register and Information on Economic Activity (Centralna Ewidencja i Informacja o Działalności Gospodarczej, CEiDG) and National Court Register (Krajowy Rejestr Sądowy, KRS).

The anti-crisis shield 3.0 provides for the rescinding of the provisions under which the course of procedural and judicial deadlines was suspended. This would result in the above-mentioned deadlines starting to run again. This would take place within 7 days of the entry into force of the Act.

According to the anti-crisis shield 2.0., the stop and the suspension of deadlines does not apply to, inter alia, deadlines:

  • providing opinions on and arranging the design of the study, the design of the local plan and the design of the resolution setting out the rules and conditions for the location of small architecture forms, advertising boards and advertising equipment as well as fences, their dimensions, quality standards and the types of building materials they may be made of – all by the competent authorities;
  • regarding the opinion of the draft municipal revitalization program by the competent authorities;
  • on issuing of decisions on land development conditions;
  • for submitting applications concerning the study of conditions and directions of spatial development of the municipality.

At the same time, the existing catalogue of cases, in which it is allowed to waive the principle of participation in person of parties in administrative proceedings has been extended to include the case where all involved parties have waived their right to participate in person in these proceedings.

An access to the case files is now possible by means of electronic communication.

The personal appearance of a party or another participant to the proceedings may be replaced by making the personal image available in real time via audiovisual transmission. Such a solution shall only be viable if it reflects the interest of the parties in question as well as the public authority at hand has agreed to it.

The anti-crisis shield 2.0. also includes the rules for service of letters issued by public administration in the form of an electronic document. In the case of letters issued by public administration bodies in the form of an electronic document – when the party or other participant in the proceedings did not submit an application in the form of an electronic document through the electronic mailbox of a public administration body or the party did not apply to the public administration body for such delivery or the party did not consent to the service of the letters in such a way – such service may consist of delivery of a printout of the letter obtained from this system reflecting the content of that letter.

In the case of undelivered letters, which are to be delivered with acknowledgement of receipt, if the time of receipt specified in the notice is during an epidemic emergency or state of epidemics, the letters cannot be considered to have been delivered during an epidemic emergency or state of epidemics and before 14 days have elapsed from the date on which those states are lifted.

The aforementioned rule does not apply to certain proceedings in gambling cases, certain tax proceedings and tax inspection, customs and fiscal control and tax proceedings if such inspections or proceedings are connected with a suspicion of a criminal or fiscal offence. It does also not apply to court cases.

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CIVIL, CRIMINAL AND PUBLIC PROCURMENT CASES

In the period an emergency epidemic state or epidemic state declared due to COVID-19 some further deadlines shall stop or be suspended. This applies to:

  • the prescribed statutes of limitations for criminal offenses and for execution of the penalty in cases of offences, fiscal offenses and fiscal petty offenses, and petty offenses;
  • procedural and court deadlines in court proceedings, including administrative court proceedings, enforcement proceedings, criminal, fiscal offenses and petty offenses proceedings, administrative, administrative enforcement and other proceedings conducted under the laws (to read more about tax proceedings and tax controls see OTHER TAX ISSUES).

The anti-crisis shield 3.0 provides for the rescinding of the provisions under which the course of procedural and judicial deadlines as well as the course of proceedings before the National Appeal Chamber were suspended. This would result in the above-mentioned deadlines starting to run again. This would take place within 7 days of the entry into force of the Act. The statute of limitations on the prosecution of the case and the statute of limitations on the execution of the sentence are also to start again with regard to fiscal offences, offences and misdemeanors, and that from the very day the law comes into force.

The stay or suspension of deadlines does not partly not apply to proceedings under the Public Procurement Law (Prawo zamówień publicznych) including deadlines for appealing against tenders’ outcomes.

Nor does the regulation apply to time limits provided for in civil law, and thus, in particular, the limitation period for claims under contracts, torts and delicts and unjustified enrichment, as well as prescription. The actions or applications to the court necessary to comply with those time-limits should therefore be brought as if there were no emergency epidemic state or epidemic state.

Court hearings are not to be conducted except for urgent cases. In the anti-crisis shield 2.0. the obligation to present medical certificates from a doctor in case a person is unable to appear at a court hearing has also been suspended. The anti-crisis shield 3.0 provides for the extension of the catalogue of cases in which the courts will be able to proceed in classified meetings and with the use of technical devices enabling the meeting to be conducted at a distance with simultaneous direct transmission of video and sound, even for a period of one year after the end of the epidemic. In classified meetings with a broader scope than is currently the case, it will be possible, in particular, to pass judgment and hear appeals in civil cases.

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INSOLVENCY AND RESTRUCTURING PROCEEDINGS

According to the anti-crisis shield 2.0, during the period of the emergency epidemic state or epidemic state declared due to COVID-19, the running of the deadline for submission of an application to open insolvency proceedings is suspended. After the end of these states it runs again. The condition is that the insolvency is due to COVID-19.

If the state of insolvency arises during the emergency epidemic state or epidemic state declared due to COVID-19, it is presumed that the insolvency was caused by COVID-19. This means that it is assumed that the state of insolvency was not caused by the fault of the debtor and the debtor (and in the case of a debtor that is a company, the entitled persons to its representation) will not suffer any negative legal consequences.

The catalogue of urgent cases to be dealt with as a priority during the emergency epidemic state or epidemic state declared due to COVID-19, in which hearings and court hearings may also be held, includes cases for the opening of a restructuring proceedings. The anti-crisis shield 3.0. also provides for the extension of the catalogue of urgent cases to include also restructuring proceedings conducted after their opening, i.e. restructuring in progress, as well as insolvency proceedings at any stage.

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HYBRID DELIVERY

For the period to 30.09.2020 a new, extended form of the so-called hybrid delivery, carried out by the Polish Post (Poczta Polska), has been introduced into the Polish legal system. The hybrid delivery means that a registered mail shall be received by the post and then transferred into and delivered as an electronic document to the addressee without use of a hand-written signature.

Hybrid mail will be delivered in a digital form. The content and the correspondence contained in the letter as well as the envelope will be digitalized. The electronic document created in this manner will be equal to the written document from which the digital form of the document was made. The use of the hybrid delivery is free of additional charge.

To use the hybrid delivery it is required to have so-called a trusted profile (profil zaufany), which enables to identify the citizens before the administrative authorities. Hybrid delivery may be applicable in case of use of an ordinary registered mail, a registered mail with acknowledgment of receipt or electronic confirmation of receipt. Hybrid deliveries cannot be used for correspondence send or received by courts, tribunals, prosecutor’s offices, other law enforcement authorities or court enforcement officers. However, other authorities, e.g. tax offices or Social Insurance Institution (Zakład Ubezpieczeń Społecznych, ZUS), were not excluded from the application of the provisions concerning the hybrid delivery.

The extended form of the hybrid delivery may be applicable if the following conditions are cumulatively met:

  1. a delivery via the registered mail or a delivery with acknowledgment of receipt made by the Poczta Polska is prescribed by the relevant provisions of law, and
  2. the addressee agrees and authorizes the Poczta Polska to collect registered mails, to transfer them into and deliver as an electronic document into the recipient’s electronic mailbox.

The Poczta Polska will have to provide an unambiguous identification of the recipients in case they are a natural person. In the case of legal persons or organizational entities which do not constitute a legal person their unambiguous identification or their representatives may be provided if the Poczta Polska has technical capabilities to do so.

The hybrid delivery cannot be used if the correspondence may not be served in this way, for example when a document has to be served as an unconverted document.

Hybrid deliveries carried out until 30.09.2020 will be effective as of the date on which the recipient was acquainted with the document placed in the recipient’s electronic mailbox. The Poczta Polska will inform the addressee that an electronic document has been delivered to the recipient’s electronic mailbox at the indicated e-mail address. In the event the recipient was not acquainted with the document, it will be deemed that the document has been served within 14 days from the moment of placement of the document into the recipient’s electronic mailbox. This means that the so-called a fiction of delivery is applicable to the hybrid delivery and even if the mail actually will not be delivered to the recipient for the purposes of meeting the deadline the mail will be deemed as properly delivered.

Details of the provision of services on hybrid delivery, including rules on identification of the recipients and collection of the deliveries will be set out in a regulations adopted by the Poczta Polska.

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