NEWSLETTER
No. 7, June 2021
Malinowski & Associates. Legal Advisors. Partnership
Table of contents
Higher prices for some electronic devices, or the Law on the Powers of the Professional Artist.
A revolution in the photovoltaic market.
mCitizen – a wallet on your phone.
Ban on requiring cashless payments from consumers.
Consumer bills more difficult to enforce.
Extended deadlines for payment and challenge.
Grounds for issuing a payment order.
Reducing the fee for filing charges.
Deadline for application of new regulations.
Higher prices for some electronic devices, or the Law on the Powers of the Professional Artist
The website of the Ministry of Culture, Heritage and Sports announces the announcement of a public consultation on the draft law on the rights of the professional artist from May 5, 2021.
In addition to allowing professional artists to apply for surcharges if they pay social and health insurance contributions and have a monthly income of less than 80% of the average wage in the national economy, the drafters also find a source of funding for the surcharges by amending the Copyright and Related Rights Act by expanding the catalog of devices and products covered by the reprographic fee.
At present, a fee not exceeding 3% of the amount due from the title. Sales are paid by, among others. Manufacturers and importers of tape recorders, VCRs, photocopiers, scanners and other similar devices that enable the acquisition of copies of all or part of a copy of a published work and media used to record works by the aforementioned. devices (i.e., discs or cassettes, among others).
The draft amendment proposes to expand the catalog of devices covered by the above-mentioned amendments. fee by any device that enables the fixation within the framework of personal use of works of a different nature (sounds, videos, texts, photos, images, etc.) – so it will also include computers, cell phones, tablets, e-book readers, televisions, game consoles and others, as well as blank media that enable the fixation of these works. The fees will range from 1 to 4 percent of the gross amount due from the sale or the market value of the goods.
The obligation to pay the reprographic fee will be imposed – upon introduction to the domestic market – on manufacturers, importers, entities making intra-Community purchases of these goods and entities making mail-order sales from the EU territory to the Polish territory to a natural person who is not an entrepreneur. Indeed – formally the sellers will pay, but it is not difficult to imagine a situation in which the final prices of these products will increase as a result of the burden of fees and the obligation to handle the associated paperwork on the entrepreneurs.
Interestingly, a very similar draft (KO) was submitted to the Sejm on December 1, 2020, but was withdrawn on January 20, 2021 by the proposers, after the justification was requested to be supplemented with drafts of basic implementing legislation.
Revolution in the photovoltaic market
Recently, there has been a great deal of buzz in the media about the government’s planned changes to the operation of the photovoltaic market, which, according to the industry, could cripple the activities of entrepreneurs who provide installation services and discourage private property owners from installing photovoltaics.
We are talking about the Ministry of Climate and Environment’s proposed draft amendment to the Energy Law. Currently, when someone owns a photovoltaic micro-installation, the surplus energy produced (e.g. during the day) is transferred to the grid and 80% of this surplus can then be used by the owner of the installation at times when the installation produces less energy (e.g. in the evening). If the bill enters into force, only generators who had an installation before January 1, 2022 will be able to account for energy in the above manner. The others, i.e. owners of installations operating as of January 1, 2022, will be obliged to sell the surplus energy generated to the grid. The selling price is equal to 100% of the average selling price of energy in the competitive market.
This means that after the amendment, installations set up after January 1, 2022, will sell surplus power at prices as if they were between power companies (let’s call them wholesale prices for simplicity’s sake), and if they need to buy (e.g., in moments of lower production), they will buy power from operators at retail prices. As a result, micro photovoltaic installations may become unprofitable. We asked …. for its opinion
+ surplus information
mCitizen – a wallet on your phone
It’s well known today that smartphone manufacturers are giving us the option to pay by card on the phone via NFC (from near-field communication), a technology that allows two devices to transmit a signal in close proximity. This makes it safer than a traditional card to make contactless payments in stores using a smartphone, which must be unlocked beforehand. Such an option has “depleted” our wallets of a number of payment cards – but we still keep our wallets with us because we carry our most important documents in them. However, is it really necessary?
With the answer comes the mCitizen app, available on both Google Play (for smartphones with Android software) and the App Store (for iPhones). This application is such a digital wallet, verifying the holder’s data based on a trusted profile or e-card.
The mCitizen application allows, among other things, identity verification on trains, during elections, when setting up loyalty cards, when receiving mail at the post office, at the gym, at the clinic and for other services. The application will not be used in institutions where the law requires you to show an ID card or passport (for example, in a bank, at the airport, at a notary, when registering a SIM card or at certain official actions).
In addition to confirming basic personal data, the application can also include mDriving license, containing entitlements from a traditional driver’s license (so it can be shown, for example, during a police check) and information about your penalty points, updated daily at 6:00 am. The mVehicle function allows the user to show data from the registration certificate, vehicle card and liability policy.
In addition, the application allows generating a so-called Union COVID Certificate, which is proof that a person has undergone COVID-19, has a negative test result, or has been vaccinated against COVID-19. The certificate is issued in the form of a QR code and is valid in all countries of the European Union.
The app gives you the option to use e-Prescription by showing the pharmacist a QR code without having to enter your PESEL number. You can also present the mKDR (mobile Large Family Card) at institutions that honor such a card.
Learners may be interested in the introduction of school and student mLegitimacy – however, this option is not available at every institution, as the formal condition is the conclusion of an agreement between the school or university and the Prime Minister’s Office.
The application can also include data on train tickets held and tickets purchased for the Malopolska Agglomeration Card.
Opinions of those using the app are divided. To open the application, you must enter the PIN code you set each time. Internet users point out that this is not exactly a secure verification option, given some of life’s situations, such as checking a train ticket. On the other hand, if we lose our wallet, the finder can easily establish our identity and use the documents in there, whereas if we lose our phone, we would need to know the password.
The niebezpiecznik.pl portal pointed out that the use of the application can lead to abuse due to the relatively easy forgery of graphics depicting the document being shown. It’s hard to disagree with the fact that it’s harder to forge a plastic document than a computer graphic – but we have no control over that.
In conclusion, despite a number of advantages of using the mCitizen app’s functionality, such as verifying the number of penalty points or buying a prescription or providing the vehicle’s liability insurance number during a traffic incident, it is worth bearing in mind that not everywhere the phone’s screen will work as a “substitute” for an ID card. In our opinion, however, the fact that we do not use the app at the bank, notary or offices – although not always convenient – can prevent many dangerous situations. Nevertheless, we therefore encourage you to carry a traditional wallet.
Ban on demanding cashless payments from consumers
On May 20, 2021, the President submitted a bill to the Parliament, introducing the principle that a trader will not be able to condition the conclusion of a contract with a consumer on non-cash payment. In other words, the seller of goods or services will not be able to unilaterally decide that buyers (consumers) are to pay other than in cash (e.g., by card), and will not be able to refuse to accept payment in cash. In addition, the vendor will not be able to charge any additional fee for cash payments.
There are some exceptions to the above rule – online payments, payments in a place where there are no staff (such as self-service checkouts), or payments during a mass event (such as at festivals and concerts).
Consumer bills more difficult to enforce
The government has proposed an amendment to the Code of Civil Procedure regarding warrant proceedings on a promissory note (i.e., proceedings in which the court issues a payment order based on a promissory note issued by the debtor). The new rules are intended to protect consumers obligated by promissory note – we will try to answer the question of whether there are difficulties for creditors behind this protection.
Extended deadlines for payment and challenge
Currently, the time limit for challenging an order (both issued under the writ of payment and injunction proceedings) is two weeks, and if the defendant lives abroad in the EU – 1 month, and outside the EU – at least 3 months.
After the amendment, the time limit for paying or challenging an order for payment issued in a prescriptive procedure (and therefore also from a promissory note), served within the European Union, will be 1 month. This applies not only to orders served outside Poland in other EU member states, but primarily to payment orders served within Poland. At the same time, it should be noted that this change includes all defendants in injunction proceedings, not just consumers.
Change of payment order
New to the Polish legal order, the institution of modification of the order for payment concerns situations in which, after the order has been issued, it turns out that service should be made in a place that justifies the designation of a different date (i.e., for example, the order was issued with the intention of service within the EU, and it turned out that the order should be served outside the EU). Then the court will, on its own motion, issue an order modifying the payment order with regard to the time limit for payment or challenge.
Grounds for issuing a payment order
Currently, a payment order from a promissory note is issued on the basis of the promissory note attached to the lawsuit. Once the amendments to the CCP take effect, consumers will also need to present the contract from which the obligation arises, as well as the promissory note declaration and attachments. If the plaintiff in a lawsuit against an individual does not provide all the required documents, he or she must include a statement as to whether the claim arose in connection with a contract with a consumer. Failure to make a statement will result in a summons to supplement the claim under penalty of return. If the statement is untrue, the person who made it (including the attorney) can be fined.
Reduction of the fee for filing charges
An order for payment issued in a preliminary injunction proceeding can be challenged by the so-called. allegations. As a rule, for filing charges, the court charges the defendant a fee, equal to ¾ of the suit fee due. The amendment establishes an upper limit for the fee paid by a consumer defendant – it will be a maximum of PLN 750.
Deadline for application of new regulations
In view of the significant tightening of the requirements for a lawsuit on a promissory note brought against a consumer, the proposed transitional provisions should be viewed negatively. According to them, in cases initiated and not completed before the amendment came into effect, if a payment order has not yet been issued, the new regulations will apply. This means that if a consumer creditor has filed a lawsuit on the basis of a promissory note and the court has not yet issued an order for payment, the case will proceed under the new rules – that is, the businessman may be required to submit documents that he did not have to submit at the date of filing the lawsuit, and must expect a longer-than-expected wait for the order to become final.
