On December 9, 2020, the Sejm received a government draft law on the handling of complaints and disputes of customers of financial market entities and on the Financial Education Fund (print No. 834, hereinafter: the “Complaints Law”). On December 14, 2020, the draft was referred to the first reading at the Diet, and as of January 19, 2021, nothing had changed in this regard. As can be seen on the Seym’s website on. of the project, “the project is about increasing efficiency in protecting, both collectively and individually, the interests of customers of financial market entities, by integrating the competent authorities in this area and taking over the existing competencies of the Financial Ombudsman by the President of the Office of Competition and Consumer Protection.”

As soon as the Complaints Act enters into force, the Act of August 5, 2015 on Complaints Handling by Financial Market Operators and the Financial Ombudsman (Journal of Laws of 2019, item 2279) will be repealed. The new Complaints Law repeats many of the regulations contained in the Law of August 5, 2015, while abolishing the function of the Financial Ombudsman.

Statutory entities

Protected under the Complaints Act is the customer of a financial market entity (hereinafter: “customer”), by which is meant (Article 2(1) of the Complaints Act):

being a natural person of the policyholder, insured, beneficiary or beneficiary under the insurance contract,
a natural person pursuing claims under the provisions of the Act on Compulsory Insurance, the Insurance Guarantee Fund and the Polish Motor Insurers’ Bureau from the Insurance Guarantee Fund or the Polish Motor Insurers’ Bureau,
a member of a pension fund or an eligible person within the meaning of the Law on the Organization and Operation of Pension Funds, a participant of an employee pension plan or an eligible person within the meaning of the Law on Employee Pension Plans, a saver or an eligible person within the meaning of the Law on Individual Retirement Accounts and Individual Retirement Security Accounts, a person receiving a capital pension within the meaning of the Law on Capital Pensions, and a participant of a PPK or an eligible person within the meaning of the Law on Employee Capital Plans,
being a natural person, a customer of a bank, a member of a cooperative savings and credit union, a customer of a payment institution, a customer of a small payment institution, a customer of an account information service provider, a customer of an account information service provider only, a customer of a payment service bureau, a customer of an electronic money institution, a customer of a branch of a foreign electronic money institution, a customer of a credit institution, a customer of a financial institution, a participant in an investment fund, an investor in an alternative investment company, a customer of an investment company, a customer of a lending institution, a customer of a mortgage broker, and a customer of a credit intermediary,
being a natural person client of an insurance broker, or being a natural person client of an insurance agent or supplementary insurance agent, within the meaning of the Law on Insurance Distribution, performing agency activities for more than one insurance company with respect to the same branch of insurance, in accordance with the Annex to the Law on Insurance and Reinsurance Activity to the extent not related to the insurance coverage provided,

– also if it is a natural person, such as an entrepreneur engaged in business activities registered in the register of entrepreneurs or a natural person engaged in agricultural production activities in the field of agricultural crops and animal husbandry, horticulture, vegetable farming, forestry and inland fishing.

Among the entities of the financial market (Article 2 item 2 of the Law on Complaints, hereinafter: “entity”) are:

payment institution, small payment institution, provider of account information access service, provider of account information access service only, payment service bureau, electronic money institution and branch of foreign electronic money institution within the meaning of the Payment Services Law,
a domestic bank, a foreign bank, a branch of a foreign bank, a branch of a credit institution and a financial institution as defined by the Banking Law,
an investment fund company and an investment fund, as well as an ASI manager and an alternative investment company within the meaning of the Law on Investment Funds and Management of Alternative Investment Funds,
a cooperative savings and credit union within the meaning of the Law on Cooperative Savings and Credit Unions,
investment company as defined in the Law on Trading in Financial Instruments,
domestic insurance company, foreign insurance company, main branch and branch within the meaning of the Law on Insurance and Reinsurance Business,
pension fund and pension company within the meaning of the Law on the Organization and Operation of Pension Funds,
lending institution – an entity that is a lender within the meaning of the Law on Consumer Credit,
Insurance Guarantee Fund and the Polish Motor Insurers’ Bureau,
mortgage broker within the meaning of the Law on Mortgage Credit and Supervision of Mortgage Brokers and Agents,
A credit intermediary within the meaning of the Consumer Credit Act,
insurance broker, as well as insurance agent and supplementary insurance agent performing agency activities for more than one insurance company with respect to the same branch of insurance, in accordance with the appendix to the Law on Insurance and Reinsurance Activity to the extent not related to the insurance coverage provided.

Whenever the Complaints Act refers to the Authority, it shall be understood to mean the Office of Competition and Consumer Protection (OCCP).

Complaint

A complaint, as defined in the Complaints Law, is an application addressed to a financial market entity by its customer, in which the customer raises objections to the services provided by the financial market entity (Article 2(3) of the Complaints Law).

A complaint can be filed at any unit of a financial market entity serving customers. The law allows the following forms of complaints (Article 3(2) of the Law on Complaints):

written form (submitted in person at the entity’s customer service unit or by mail)
oral form (by phone or in person for the record during a visit to the unit)
electronic form using electronic means of communication designated for this purpose by the financial market entity.

Information regarding complaints, in particular with regard to the place and form, the time limit for consideration, the manner of notification of consideration and the procedure for appeal, should be included in the contract concluded with the customer. If the complaint relates to a customer who has not entered into a contract with an entity, the above. information shall be provided to the customer within 7 days from the date on which the claims against the entity were made (Article 4 of the Law on Claims).

Once a complaint has been filed, the entity shall consider it and, within 30 days of receipt of the complaint, provide the customer with a response in paper form or through another durable medium, or, if requested by the customer, by e-mail. In particularly complex cases, the above. The deadline may be extended to a maximum of 60 days from receipt of the complaint (Article 6 of the Complaints Law). If the deadline is not observed, the complaint is considered to have been processed in accordance with its contents.

The response to a complaint should include (Article 7 of the Law on Complaints):

factual and legal reasons, unless the complaint has been considered in accordance with its content;
comprehensive information containing the position of the financial market entity on the objections contained in the complaint, including an indication of the relevant parts of the model contract or agreement;
The name of the person responding with an indication of his/her official position;
Specifying the time limit within which the claim raised in the complaint considered in accordance with its content will be implemented, not more than 30 days from the date of sending the response.

If the complaint is not accepted, the entity is obliged to include in the response to the complaint an instruction on the possibility (Article 8 of the Law on Complaints):

appeal against the position contained in the response, if the financial market entity provides for an appeal procedure, as well as about the manner of filing this appeal;
to use the institution of mediation, arbitration or other out-of-court dispute resolution mechanism, if the financial market entity provides for such options;
to apply to the President of the OCCP for review of the case;
to file a lawsuit in a general court, indicating the entity that should be sued and the court with local jurisdiction to hear the case.

Responsibilities of the financial market operator

The financial market entity will be required to submit a report to the President of the OCCP annually, within 45 days of the end of the calendar year, on the processing of complaints and the number of customer lawsuits (Article 9 of the Law on Complaints).

Out-of-court dispute resolution proceedings between the customer and the financial market entity

A dispute between a customer and a financial market entity may be conducted through an out-of-court dispute resolution procedure conducted by the Coordinator for Out-of-Court Resolution of Disputes between a Customer and a Financial Market Entity acting at the President of the OCCP. The Coordinator is an entity authorized to conduct proceedings for out-of-court resolution of consumer disputes within the meaning of the Law on Out-of-Court Resolution of Consumer Disputes (Article 21 of the Law on Complaints).

The request for initiation of proceedings can be submitted by the customer. The application must meet the conditions set forth in Art. 33 para. 2 of the Law on Out-of-Court Resolution of Consumer Disputes, that is, to include at least the designation of the parties, a precisely defined demand, an indication of the type of proceedings and the signature of the applicant. The application shall be accompanied by a description of the circumstances of the case, information on the course of the dispute to date, and copies of documents in the applicant’s possession that confirm the information contained in the application (Article 24 of the Law on Claims).

The Coordinator refuses to consider the dispute in the event that:

its subject matter goes beyond the categories of disputes covered by the jurisdiction of the Coordinator;
The customer has not exhausted the complaint procedure;
the request to initiate proceedings will cause inconvenience to the financial market entity;
a case for the same claim between the same parties is pending or has already been heard by the President of the Office, an arbitration court, another competent entity or a court;
processing of the dispute would cause serious disruption of the Coordinator’s operations.

Although the possibility of handling customer disputes with a financial market entity through out-of-court proceedings should be evaluated positively, the circumstances indicated above, justifying the Coordinator’s refusal to initiate proceedings, may raise doubts. In particular, it is worth noting the vague criterion of “causing a nuisance” to a financial market entity by a request to initiate proceedings, which results in a refusal to consider the dispute. A circumstance formulated in this way may nullify any attempt by customers to resolve a dispute out of court – in fact, any referral to the Coordinator will cause inconvenience to the financial market entity, given, for example, that participation in the proceedings is mandatory for the entity (Article 26 of the Law on Complaints).

Fines

The president of the OCCP may impose a fine of up to PLN 100,000 on a financial market entity for violation of obligations:

information on the mode of filing complaints
submission of a reply to the complaint
To include an instruction in the response to the complaint in case the complaint is not accepted.

Law on electronic delivery

On December 22, 2020, the Law on Electronic Delivery of November 18, 2020 (hereinafter: the “Delivery Law”) was announced in the Official Gazette. The law will enter into force on July 1, 2021, and is a national mapping and supplement to the rules for exchanging correspondence with public entities indicated in Regulation (EU) No. 910/2014 of the European Parliament and of the Council of July 23, 2014. on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (hereinafter: “Regulation 910/2014”).

Scope of the law

The Delivery Law will be applied to the delivery of mail by a public entity, i.e., a public finance sector unit, other state organizational units without legal personality, legal entities established to meet needs of a universal nature, unions of the aforementioned. entities and the bailiff (Article 2(6) of the Delivery Law).

The law does not apply to the delivery of correspondence:

containing classified information
in public procurement proceedings and competitions conducted under the Public Procurement Law
in the procedure for the conclusion of a concession agreement conducted under the Act on Concession Agreement for Works or Services
if separate regulations provide for the filing or delivery of correspondence using electronic technical and organizational solutions other than the address for service, in particular, to accounts in information and communication systems supporting court proceedings or to document repositories.

A non-public entity is an individual and an entity other than a public entity.

Public registered electronic delivery service and qualified registered electronic delivery service

The Law on Deliveries, in terms of the definition of public registered electronic delivery service, refers to Regulation 910/2014, according to which the term indicated “means a service that enables data to be sent between third parties electronically and provides evidence related to the handling of the transmitted data, including proof of sending and receiving the data, and protects the transmitted data from the risk of loss, theft, damage or any unauthorized alteration” (Article 3(36) of Regulation 910/2014). In the following section of the study, the aforementioned. The service will be referred to as “electronic delivery” for short.

Qualified registered electronic delivery services (hereinafter also referred to as “qualified electronic delivery”) are electronic deliveries that meet the following requirements:

are provided by at least one qualified trust service provider;
with a high degree of certainty provide identification of the sender;
ensure the identification of the addressee before the data is delivered;
sending and receiving data is secured by an advanced electronic signature or advanced electronic seal of a qualified trust service provider in such a way as to exclude the possibility of undetectable data alteration;
any change in data necessary for the purpose of sending or receiving data is clearly indicated to the sender and recipient of the data;
the date and time of sending, receipt and any change of data shall be indicated by a qualified electronic time stamp.

According to Art. 4 of the Delivery Law, the public entity shall deliver correspondence requiring proof of posting or receipt using the public service of registered electronic delivery to the electronic delivery address entered in the electronic address database. If the electronic delivery address of a non-public entity is not entered in the electronic address database, delivery of correspondence shall be made to the electronic delivery address from which the non-public entity sent the correspondence.

The entry of an electronic address in the address database is tantamount to a request for the delivery of correspondence by public entities to that address (Article 7(1) of the Law on Delivery). The obligation to have an electronic delivery address listed in the database, linked to either a public registered electronic delivery service or a qualified registered electronic delivery service, is incumbent on the following (Article 9 of the Delivery Law):

attorney practicing profession;
legal advisor practicing profession;
tax advisor practicing profession;
restructuring advisor practicing profession;
A patent attorney practicing in the profession;
Notary practicing profession;
Counselor of the General Prosecutor’s Office of the Republic of Poland performing official activities;
a non-public entity entered in the KRS Register of Entrepreneurs – with an entity entered in the KRS before October 1, 2021 required to have an electronic delivery address before October 1, 2022 (Article 151 of the Delivery Law);
a non-public entity registered in CEIDG – with the requirement to obtain an entry in the database by September 30, 2026 (Article 152 of the Law on Delivery).

Non-public entities other than those indicated above have the right to have a delivery address linked to either a public registered electronic delivery service or a qualified registered electronic delivery service (Article 10 of the Delivery Law).

A non-public entity that is required to have an electronic delivery address may opt out of the public registered electronic delivery service and the associated delivery box, provided that it is able to have its correspondence delivered to the electronic delivery address associated with the qualified registered electronic delivery service listed in the electronic address database (Article 23 of the Delivery Law).

In the case of entities entered in CEIDG and KRS, entry in the electronic address database is made automatically after obtaining information from the relevant register or registry (Article 28 of the Delivery Law).

Public hybrid service

The Delivery Law refers to the Postal Law for the definition of a public hybrid service. Thus, we will consider as a public hybrid service the transmission of postal items using electronic communication means if, at the stage of receipt, movement or delivery of the information message, they take the physical form of a letter mail, if the sender of the mail is a public entity. In the following section of the study, the aforementioned. The service will be referred to as “hybrid delivery” for short.

A public entity shall deliver correspondence requiring proof of transmission or receipt using a public hybrid service in the event (Article 5 of the Delivery Law):

the inability to deliver correspondence to an electronic delivery address or
when it has knowledge that an individual with an electronic delivery address has been deprived of liberty.

The designated operator, providing a public hybrid service, converts an electronic document sent by a public entity from an electronic delivery address into a letter mail to deliver the correspondence to the addressee. The transformation is carried out in an automated manner that ensures the protection of postal secrecy at each stage of the service (Article 46 of the Delivery Law). The day of posting is the day the electronic document is received by the operator.

Exclusion of the use of electronic and hybrid delivery

Regulations on. electronic and hybrid delivery will not apply when:

The entity requests service of the original document originally prepared in paper form;
correspondence cannot be delivered to an electronic delivery address or using a public hybrid service due to:
1. the inability to prepare and transmit the document in electronic form resulting from separate regulations,
2. Lack of ability to use the public hybrid service resulting from separate regulations,
3. the need to serve a non-transformable document fixed in non-electronic form or things,
4. important public interest, in particular state security, defense or public order,
5. technical and organizational limitations due to the volume of correspondence and other reasons of a technical nature;
separate regulations provide for the possibility to make delivery using also methods other than the public registered electronic delivery service or public hybrid service, in particular with the help of its employees, and the sender in the specific circumstances considers another method of delivery to be more efficient.

It should be noted that the existence of the above. The rationale precluding the use of electronic or hybrid delivery is assessed by the sender of the correspondence (Article 6 of the Delivery Law).

Electronic delivery address

An electronic delivery address is the electronic address of an entity using a public registered electronic delivery service or a public hybrid service, or a qualified registered electronic delivery service, that allows unambiguous identification of the sender or addressee of the data sent under these services (Article 2(1) of the Delivery Law).

The creation of an address for electronic delivery is carried out on the basis of a request or automatically, after the minister in charge of electronic delivery obtains the address. computerization through an ICT system of data transmitted in connection with an application for entry in the KRS or CEIDG (Article 11 of the Law on Delivery).

The application is submitted using an online form.

A non-public entity that is not a natural person is obliged to appoint a delivery box administrator. The administrator is authorized to activate the electronic delivery address associated with the public registered electronic delivery service and manage the delivery box (Article 19 of the Delivery Law).

Mail delivery

Proof of receipt of correspondence sent by electronic and hybrid delivery is issued after (Article 41 of the Delivery Law):

receipt of correspondence forwarded to the electronic delivery address of a non-public entity – whereby receipt is considered to be any action of the addressee, causing him to have the document at his disposal and to be able to familiarize himself with its contents;
receipt of correspondence to the electronic delivery address of the public entity;
expiration of 14 days from the date of receipt of correspondence sent by the public entity to the electronic delivery address of the non-public entity, if the addressee has not received it before the expiration of this period.

– from the moments indicated in items 1-3 above, the correspondence shall be considered delivered.

Changes in civil procedure

The introduction of electronic and hybrid delivery will also affect civil proceedings. The possibility of filing pleadings to the court’s electronic delivery address will be introduced (Article 125, added § 5 of the Code of Civil Procedure).

If the technical and organizational conditions of the court allow it, service shall be made to the electronic service address entered in the database of electronic addresses, and in the absence of such an address – to the electronic service address associated with the qualified service of registered electronic service, from which the addressee brought the letter. Electronic service may be made on a party who is a natural person only if the party has either filed the letter from an address for electronic service or has indicated this address as the address for service. This does not apply to delivery to entrepreneurs registered in the Central Register and Information on Economic Activity (added Art. ¹³¹² k.p.c.).

Changes to the Commercial Companies Code

The Law on Deliveries in Art. 90 amends the Law of September 15, 2000 – the Commercial Companies Code (hereinafter: “CCC”), in particular with regard to the Company’s method of communication with shareholders. The possibility of delivering certain letters to electronic delivery addresses will be introduced, with the distinction appearing in the regulations of the above. of the Code of Electronic Mail from electronic delivery – whenever the Code refers to delivery to an electronic delivery address, such a provision treats delivery under the regime of the Law on Delivery, not the sending of correspondence to a common electronic mail (e-mail) address.

In a simple joint-stock company, it will be possible to use electronic delivery when sending out invitations to shareholders’ meetings (Art. ³⁰⁰⁸⁷ § 1 CCC).

In cases involving a joint-stock company, the indicated service option will be allowed:

in the notification to shareholders that the commercial company has achieved or lost its dominant position in the joint stock company – if the Articles of Association so provide (Article 5 § 2 of the Commercial Companies Code),
in the announcement of the tender offer to make payments for shares (Article 330 § 4 of the Commercial Code),
in a shareholder’s call for shareholder performance in the event of an intention to deprive a shareholder of his shareholding rights (Art. ³³¹¹ 1 k.s.h.),
In the notice of deprivation of shareholder rights (Art. ³³¹¹ 4 k.s.h.),
in the shareholders’ notice of the general meeting, if all shares are registered (Article 402 § 3 of the Commercial Companies Code),
in a public company to send a list of shareholders entitled to participate in a general meeting to a shareholder upon request (Art. 407 §^11s.h.),
in the announcement of the rights issue if all existing shares are registered (Article 434 § 3 of the Commercial Code),
in the subscription record submitted to the company by the subscriber (Article 437 § 1 of the Commercial Code),
in the announcement of the failure of the share capital increase and the summons to subscribers to collect the amounts paid (Article 438 § 4 of the Commercial Code).

In a limited liability company, electronic delivery will be possible in the invitation to the shareholders’ meeting (if the shareholder has previously agreed to it – in addition to the possibility of sending the invitation to an e-mail address, Article 238 § 1 of the Commercial Companies Code).

In addition, in all commercial companies, in the notification of these companies to the Register of Entrepreneurs of the National Court Register, it will be possible to choose between indicating the address, the address for delivery or the address for electronic delivery in the case of partners (in a general partnership), partners (in a partnership), general partners (in a limited partnership and limited joint-stock partnership), members of the board of directors (in a limited liability company, simple joint-stock company), liquidators (in a general partnership, limited liability company, joint-stock company) and the sole shareholder (in a limited liability company, respectively: sole shareholder in a joint stock company).

In the case of a joint-stock company and a simple joint-stock company, there will be a choice between indicating the address, the address for service or the address for electronic service in the register of shareholders, and in a joint-stock company – additionally in the certificate of registration.

Deadlines for the use of electronic and hybrid delivery by certain public entities

The Law on Deliveries differentiates the introduction dates of electronic and hybrid delivery for different public entities in Article. 155. This section will indicate, in chronological order, the dates on which public entities are bound by the Act’s provisions on the application of delivery.

As of October 1, 2021, electronic or hybrid delivery will be used by government agencies and budget entities serving them.

From January 1, 2022, electronic or hybrid delivery will apply:

other than the above public authorities, including state control and law protection bodies, and budgetary units serving these bodies,
Social Security and the funds it manages, as well as KRUS,
National Health Fund,

From January 1, 2023, electronic or hybrid delivery will apply:

Implementing agencies,
Budgetary management institutions,
State special purpose funds,
Independent public health care facilities,
Public universities,
Polish Academy of Sciences and the organizational units it creates,
State and local government cultural institutions,
Other state or local government legal entities established under separate laws to perform public tasks.

From October 1, 2029, electronic or hybrid delivery will be used:

Local government units and their unions and metropolitan unions and local government budget establishments,
Courts and tribunals
Bailiffs
Prosecution
Law enforcement agencies
Prison Service.

Public entities other than those listed above will use electronic or hybrid delivery starting January 1, 2025.

Code of conduct in misdemeanor cases

On January 8, 2021, a parliamentary bill amending the Law – Code of Criminal Procedure (hereinafter: the Code of Criminal Procedure) was submitted to the Sejm. On January 13, 2021, the draft was referred to the first reading at a session of the Sejm, which may be held on February 24 or 25, 2020, at the earliest. It is worth touching on this amendment, as it has caused a stir among the public, especially on social media. The changes that may occur as a result of the passage of the law in its original form, which may affect everyone – drivers, pedestrians, dog owners – will be described below.

Criminal warrant

The amendment provides for the introduction of a new type of ruling – a “criminal warrant,” hitherto unknown to misdemeanor proceedings, issued by a court registrar when the law so provides (Article 32, new wording of § 2 of the Code ofCriminalProcedure). A penalty order may be issued at a hearing in misdemeanor cases in which a reprimand or fine is sufficient. A criminal warrant against which no objection has been filed or the objection has been withdrawn is enforced like a final conviction (added Article 94a of the Code of Criminal Procedure).

No possibility of refusing the mandate

The right to refuse a criminal fine will be revoked (repealed § 2 of Article 97 of the Code of Criminal Procedure). In the event of a refusal to accept a ticket or a receipt for a ticket, the officer will make an appropriate note on the ticket, based on which the ticket is considered accepted (Article 98, added § 8 of the Code of Criminal Procedure).

The fined person will have the right to appeal against an invalid fine to the court within 7 days from the date of the fine. The day on which the fine is imposed is considered to be the day:

Payment of the fine to the officer – in the case of a fine issued after payment of the fine to the officer (fine imposed against a person temporarily residing in the territory of Poland or without permanent residence or stay),
Receipt of the fine by the punished person – in the case of a credited fine, issued to the punished person against acknowledgment of receipt, and in the case of a default fine, delivered to the offender.

The appeal shall be addressed to the district court with jurisdiction over the place where the offense was committed (added Article 99a of the Code of Criminal Procedure). The appeal points out:

Disputed mandate
The scope of challenging the mandate: as to guilt or as to the penalty
All known evidence to support the applicant’s claims.

The court may suspend enforcement of the challenged criminal fine. The punished person may not invoke evidence in court proceedings other than that indicated in the appeal, unless the evidence was not known to him at the time of the appeal. The court hearing the case may rule against the defendant, which means that it will be able to impose a higher penalty than that imposed by the mandate. The amendment introduces the following permissible settlements in the form of a judgment:

Maintaining the challenged mandate in force
Revocation of the mandate and ruling on the merits of the case
Repeal the mandate and discontinue the proceedings.

The parties are entitled to appeal against the court’s ruling on the appeal (added Article 99b of the Code of Criminal Procedure).

A criminal fine shall become final upon the expiration of the time limit for filing an appeal, withdrawal of an appeal, or the entry into force of a judgment upholding the fine or a judgment of an appellate court upholding such a judgment. In the case of a fine in absentia (imposed on a person who is not present at the place where the offense was committed), validity takes effect when the fine is paid.

Amounts paid or enforced from a fine imposed by a criminal fine shall be credited against a fine imposed by a court for the same offense (Article 52b of the Executive Penal Code, added by the amendment).

The most significant consequence of the postulated changes will be the reversal of the burden of proof – currently it is the prosecutor who is required to present evidence to prove that the accused committed the alleged act. The defendant is considered innocent until his guilt is proven and established by a final judgment(vide Art. 5 of the Code of Criminal Procedure, which is applicable to misdemeanor proceedings by reference from Art. 8 k.p.w.). If the amendment to the Code of Administrative Procedure is introduced in the proposed form, it will be the defendant who will be obliged to present evidence to prove his innocence, while his guilt will be established by the circumstance of the imposition of a criminal fine by an authorized officer. Moreover, any evidence presented to prove the defendant’s innocence will have to be included in the appeal against the ticket, so the defendant will only have 7 days to complete this evidence. Such a procedure can make it difficult and sometimes even impossible for the defendant to prove his innocence, making the determination of guilt dependent on the subjective assessment of the officer imposing the fine.

Dematerialization of shares in joint stock companies and shareholder register

On March 1, 2021, the Law of August 30, 2019 on Amendments to the Law – Commercial Companies Code and Certain Other Laws (hereinafter: “the Law Amending the Commercial Companies Code”) will come into force, under which the dematerialization of shares of all joint-stock companies will be introduced, i.e. the exclusion of the documentary form of shares and the obligation to maintain a register of shareholders.

Note that – despite the lack of separate regulations – the following rules will also apply to limited joint-stock partnerships, in view of the reference in Art. 126 § 1(2) CCC.

Resignation of shares in documentary form

According to the new wording of Art. 328 § 1 of the Code of Commercial Companies, shares (and, respectively, subscription warrants, utility certificates, certificates of incorporation and other titles to participate in the income or distribution of the company’s assets) will not be in the form of a document. The validity of the share documents issued by the company will expire by operation of law on March 1, 2021. The share document retains evidentiary force only to the extent that the shareholder proves to the company that he is entitled to share rights – for a period of five years from the effective date of the amendment (Article 15 of the Amendment Law of the Commercial Companies Code).

The company is required to call shareholders five times to file share documents with the company – with the first call due by September 30, 2020. Summonses should be made at intervals ranging from two weeks to one month (Article 16 of the Amendment Law of the Commercial Companies Code).

Register of shareholders

Shares of a non-public company will be subject to registration in the shareholder register, maintained by an entity authorized to maintain securities accounts – that is, for example, a brokerage house. The shareholder register will be kept in electronic form, and the selection of the entity keeping the register requires a resolution of the general meeting (added Art. ³²⁸¹ k.s.h.).

The joint-stock company is obliged – prior to the first summons of shareholders to file share documents – to conclude an agreement on the maintenance of the shareholder register, the termination of which will be possible only if a new agreement is concluded. The agreement forms the basis for the registration of share subscription rights and for the registrar to mediate the company’s monetary obligations to shareholders in respect of their share rights (such as, for example, the payment of dividends), but the statute may exclude the above-mentioned. intermediation (added Art. ³²⁸² k.s.h.).

The shareholder register should include:

The company’s name, headquarters and address;
The designation of the registry court and the number under which the company is registered;
The date of registration of the company and issuance of shares;
nominal value, series and number, type of share in question and special rights of the share;
the surname and first name or company (name) of the shareholder and the address of the shareholder’s residence or registered office or other address for service, as well as the electronic mail address, if the shareholder has agreed to communicate with the company and the entity maintaining the shareholder register using electronic mail;
A mention of whether the shares have been fully paid up;
restrictions on the disposition of the share;
The provisions of the Articles of Association on share-related obligations to the company.

In addition, at the request of authorized persons, the shareholder register may include:

at the request of a person with a legal interest – an entry on the transfer of shares or pledge rights to another person or on the establishment of a limited right in rem on the shares, together with the date of the entry and the indication of the acquirer or the pledgee or user, their address of residence or registered office or other addresses for service, as well as the electronic mail address, if these persons have agreed to communicate with the company and the entity maintaining the register of shareholders using electronic mail, and the number, type, series and numbers of the acquired or encumbered shares;
at the request of the pledgee or user – an entry that he or she has the right to exercise voting rights from the encumbered share;
At the request of a shareholder – an entry on the deletion of the encumbrance of his shares with a limited right in rem.

The entity maintaining the shareholder register shall make an entry in the register at the request of the company or a person with a legal interest in making the entry immediately, no later than within a week of receiving the request. Before the entry is made, information on the content of the intended entry shall be sent to the person whose rights are to be deleted, changed or encumbered by the entry (added Art. ³²⁸⁴ k.s.h.).

The person requesting the entry shall submit documentation to the entity keeping the register, justifying the entry. These documents should be verified by the entity in terms of their content and form, but there is no obligation to examine their legality and veracity (including signatures), unless the registrar has reasonable doubts in this regard. The entity is obliged to take into account restrictions on the disposition of the share (added Art. ³²⁸⁴ k.s.h.).

The shareholder register is open only to the company and shareholders. The registrar shall make the registry data available to the company and shareholders in either paper or electronic form (added Art. ³²⁸⁵ k.s.h.).

Entry in the shareholder register is constitutive (i.e., necessary for effectiveness) for the acquisition of a share or the establishment of a limited right in rem thereon (added Art. ³²⁸⁹ CCC), except:

taking up shares (with the exception of conditional share capital increases) – noting that entry in the shareholder register can only take place after either the company’s entry in the KRS or the share capital increase;
appointment to the inheritance;
legacy bequest;
contribution of shares as an in-kind contribution to the company;
merger division or transformation of the company;
the occurrence of any other legal event that causes the transfer of shares or a limited property right established thereon to another person by operation of law.

Importantly, to the company, only a person entered in the shareholder register is considered a shareholder (Article 343, amended § 1 of the Commercial Code). Those entitled to shares, as well as pledgees and users with voting rights, have the right to attend a general meeting of a non-public company if they have been entered in the shareholder register at least one week before the date of the general meeting (Article 406, amended § 1 of the Commercial Companies Code).

Certificate of registration

A share certificate is a registered document issued by the entity maintaining the shareholder register at the request of a shareholder, pledgee or user entitled to exercise voting rights from shares, confirming the rights arising from shares that cannot be exercised solely on the basis of entries in the shareholder register (added Art. ³²⁸⁶ k.s.h.). The deadline for the issuance of a registration certificate is one week after the request of an authorized person.

The registration certificate should include:

the company (name), headquarters and address of the issuer and the number of the registration certificate – the absence of this information renders the registration certificate invalid;
the number of shares – the absence of this information renders the registration certificate invalid;
the type, series and number or separate designation of shares referred to in Art. 55 of the Law of July 29, 2005. On trading in financial instruments – the absence of this information renders the registration certificate invalid;
the company’s firm (name), registered office and address – the absence of this information renders the registration certificate invalid;
The par value of the shares – the absence of this information renders the registration certificate invalid;
The name and surname or company (name), the address of residence or registered office or other address for service or electronic delivery of the shareholder, pledgee or user requesting the issuance of the registration certificate, together with the identification of his right to shares – the absence of this information renders the registration certificate invalid;
information about existing restrictions on the transfer of shares or encumbrances established on it, as well as the right of the pledgee or user to exercise the voting rights from the shares;
date and place of issuance of the registration certificate – the absence of this information renders the registration certificate invalid;
The purpose of issuing a certificate of registration;
the expiration date of the registration certificate – the absence of this information renders the registration certificate invalid;
indicating that it is a new registration certificate document, in the event that the previously issued registration certificate for the same shares was invalid or the document was destroyed or lost before its expiration date;
signature of the person authorized to issue a registration certificate on behalf of the issuer – the absence of a signature renders the registration certificate invalid, unless the certificate is issued in documentary form.

The possibility of disposing of shares in the number indicated in the contents of the registration certificate from the time of its issuance until it expires or the certificate is returned to the issuer was excluded. For this period, shares in the indicated number are blocked in the shareholder register (added Art. ³²⁸⁷ k.s.h.). Several registration certificates may cover the same shares, provided that the purpose of issuing each certificate is different.

The legislator indicates the following reasons for the expiration of a registration certificate:

The expiration of its expiration date;
transfer of pledged shares to satisfy the pledgee – in the case of a registration certificate for these shares issued to the pledgee;
transfer of shares in foreclosure proceedings – in the case of a registration certificate for shares under foreclosure issued to the debtor;
to carry out a compulsory redemption of shares – in the case of a certificate of incorporation relating to shares subject to compulsory redemption;
destruction or loss of the registration certificate document.

Registration of shares of a non-public company in a securities depository

An alternative to keeping a register of shareholders of a non-public company is to register shares with a securities depository. The decision in this regard is made by the general assembly by resolution. Then the dematerialization of shares of such a company is carried out on the basis of the Law on Trading in Financial Instruments (added Art. ³²⁸¹¹ k.s.h.). Shares of the same company cannot be simultaneously registered in the shareholders’ register and the securities depository.

The provisions on the organization of the general meeting of a public company shall apply to a non-public company whose shares are registered in a securities depository.

Consequences of dematerialization of shares

A consequence of the dematerialization of shares is also a series of minor amendments to the Commercial Companies Code, but they do not significantly change the meaning of the amended regulations – so they will be omitted from this study. Among the examples of changes related to dematerialization, one may point out, among others, the replacement of the regulation concerning the cancellation of the share document in the event of a shareholder’s delay in paying the share deposit, with the institution of the company’s deprivation of shareholding rights by striking off the shareholder’s register and entering the company in its place (Article 331 § 1 of the Commercial Code).

Similarly, by repealing Art. 335 of the Commercial Code, excluded the possibility of issuing registered share documents and interim certificates before full payment, which is a natural consequence of the dematerialization of shares.

The pledgee and the usufructuary will be able to exercise the voting rights of the shares if the legal act establishing the limited right in rem so provides, and if a note has been made in the shareholder register or securities account about its establishment and authorization to exercise the voting rights (Article 340, amended § 1 of the Commercial Code).

The dematerialization of shares also has the effect of exempting the board of directors from the obligation to maintain a stock ledger (repealed Article 341 of the Commercial Code).

Criminal liability

For failure to perform certain duties, related to the process of dematerialization of shares, the legislator has provided for criminal liability in Article. 18 of the Amendment Law of the Commercial Companies Code. Under this regulation, persons authorized to conduct the affairs and represent a joint-stock company or a limited joint-stock partnership, allowing the failure to summon shareholders to file share documents and failing to enter into an agreement to maintain a shareholder register (or register shares in a securities depository), may be subject to a fine of up to PLN 20,000.00.

Constitutional Court ruling – the amount of the fee for a complaint against a ruling of the NAC is unconstitutional

On December 8, 2020, the judgment of the Constitutional Court of December 2, 2020 (ref.: SK 9/17) was published, stating the incompatibility of Art. 34 par. 1 of the Law of July 28, 2005 on Court Costs in Civil Cases (hereinafter: the Costs Law) with Art. 45 par. 1 in connection. from Art. 31 para. 3 and Art. 77 paragraph. 2 of the Constitution of the Republic of Poland, by the fact that it introduces a disproportionately high fixed fee on a complaint against a ruling of the National Board of Appeals.

It is worth – as a matter of curiosity – taking a closer look at the circumstances of the verdict and the related amendment of the challenged provision.

The constitutional complaint was filed by the applicant on November 8, 2016. The applicant challenged the compatibility of Art. 34 of the Law on Costs, insofar as it introduces a requirement to pay a court fee on a complaint against a ruling of the National Board of Appeals under the President of the Public Procurement Office in such an amount as to make it impossible to bring this appeal and have the case reviewed by a common court, with Art. 45 par. 1, Art. 77 paragraph. 2, Art. 78 in conjunction with: art. 176 para. 1, Art. 31 para. 3 and Art. 32 paragraph. 1 of the Constitution. As the law stood at the time, Art. 34 of the Law on Costs read as follows:

“A complaint against a decision of the National Board of Appeals to the President of the Public Procurement Office shall be subject to a fixed fee in the amount of five times the entry fee paid for the appeal in the case to which the complaint relates, subject to paragraph (2). 2.”.

By the Law of September 11, 2019 – Regulations introducing the Law – Public Procurement Law, under Art. 39, amended the challenged Art. 34 of the Law on Costs, introducing a fee of three times the entry fee paid for the appeal. The explanatory memorandum to the bill (Print No. 3625) indicates that “the amendment introduced in Art. 34 par. 1 of the Law of July 28, 2005. On court costs in civil cases aims to increase access to legal remedies. In the current state of the law, the fee for a complaint to a district court against a decision of the National Board of Appeals, hereafter also “NAC,” is set at five times the amount of the fee paid on an appeal to the NAC. The fee in the current amount is considered by most contractors to be a significant barrier to the use of this remedy. As a result, the appealability of the decisions of the National Board of Appeals at the level of a few percent, does not ensure effective control of its rulings. Therefore, it is reasonable to reduce the court fee on a complaint against decisions of the NAC to three times the entry fee paid on an appeal to the National Board of Appeals.” Similar reasoning can be found in the reasoning of the Court’s judgment of December 2, 2020 – moreover, the Court noted that “the Council of Ministers has recognized” the problem of too high a fee and, as a result, the fee from January 1, 2021 is three times the entry fee.

Regulation on support for economic participants affected by the COVID-19 pandemic

On January 22, 2021, the Council of Ministers’ Decree of January 19, 2021 on Supporting Economic Participants Affected by the COVID-19 Pandemic (hereinafter also referred to as the Support Decree) was published in the Official Gazette. The regulation was issued based on the Law of March 2, 2020 on Special Solutions for Preventing, Countering and Combating COVID-19, Other Infectious Diseases and Crisis Situations Caused by Them (hereinafter also referred to as the Anti-Crisis Law). The regulation goes into effect on February 1, 2021.

The Support Ordinance broadened the scope of support beneficiaries or extended the possibility of applying for certain grants. In view of the fact that the basic issues of the different types of benefits were analyzed in detail in the first edition of the Newsletter (for December 2020), only the additions introduced by the Support Regulation will be presented here.

Subsidizing the salaries of employees of entrepreneurs of certain branches of the economy

Under Art. 15gga of the Anti-Crisis Law introduced the possibility for entrepreneurs engaged in activities designated by particular PKD codes to apply for job protection benefits from the funds of the Guaranteed Employee Benefits Fund (hereinafter also: FGŚP).

The Support Ordinance broadened the subject scope of the aforementioned. regulation of entrepreneurs who, as of November 30, 2020, conducted activities (designated by the following PKD codes as predominant) in the field:

running hotels and other accommodation facilities (PKD 55.10.Z and 55.20.Z),
running camping and tent sites (PKD 55.30.Z)
Activities of travel agents and tour operators (PKD: 79.11.A and 79.12.Z).

Applications for job protection benefits can be submitted until March 31, 2021 .

Renewed parking benefits for some entrepreneurs

It is worth recalling that under Art. 15zq of the Anti-Crisis Law introduced the possibility for persons engaged in non-agricultural economic activity to apply for a parking benefit.

The Support Ordinance grants a renewed standstill benefit (under the terms of the Anti-Crisis Law) to a person who, as of November 30, 2020, is engaged in a non-agricultural business activity designated according to the PKD as the predominant activity in the field:

retail sales of clothing and footwear (PKD: 47.71.Z, 47.72.Z, 47.82.Z) – once
retail sale of food, beverages and tobacco products and other products on stalls (PKD: 47.81.Z, 47.89.Z) – once
passenger land transport (PKD: 49.39.Z) – up to two times
hotels and other accommodation facilities, campgrounds, etc. (PKD: 55.10.Z, 55.20.Z, 55.30.Z) – a maximum of two times
restaurants and other catering establishments, catering, preparing and serving beverages (PKD: 56.10.A, 56.10.B, 56.21.Z, 56.29.Z, 56.30.Z) – up to two times
production, editing, distribution and projection of films, recordings and programs (PKD: 59.11.Z, 59.12.Z, 59.13.Z, 59.14.Z) – a maximum of two times
sound and music recordings (PKD: 59.20.Z) – a maximum of two times
photographic activities (PKD: 74.20.Z) – a maximum of two times
rental of recreational and sports equipment (PKD: 77.21.Z) – a maximum of two times
activities of travel agents and organizers of tourism, guides and reservations (PKD: 79.11.A, 79.12.Z, 79.90.A, 79.90.C) – maximum twice
organization of fairs, exhibitions and congresses (PKD: 82.30.Z) – up to two times
extracurricular forms of sports and artistic education, driving and pilotage lessons, foreign language learning and others (PKD: 85.51.Z, 85.52.Z, 85.53.Z, 85.59.A, 85.59.B) – up to twofold
activities of hospitals (PKD: 86.10.Z) in the field of spa treatment or therapeutic rehabilitation – a maximum of two times
Physiotherapeutic and paramedical activities (PKD: 86.90.A, 86.90.D) – up to twice
staging of artistic performances (PKD: 90.01.Z, 90.02.Z) – a maximum of two times
activities of cultural facilities, museums, sports facilities, services in the field of improvement of physical condition (PKD: 90.04.Z, 91.02.Z, 93.11.Z, 93.13.Z, 93.19.Z, 96.04.Z) – maximum twice
activities of amusement parks, puzzle rooms and others (PKD: 93.21.Z, 93.29.A, 93.29.B, 93.29.Z) – up to twice
washing and cleaning of textile and fur products (PKD: 96.01.Z) – a maximum of two times,

– if the income from this activity, as defined by tax regulations, received in one of the two months preceding the month of application was at least 40% lower than the income received in the previous month or in the corresponding month of the previous year.

With regard to the PKD code 93.29.Z indicated in item 17, it should be noted that as of August 1, 2020, the code has been divided into subclasses: 93.29.A and 93.29.B, so that the code designation 93.29.Z is no longer valid.

Grant to cover ongoing business costs

Under Art. ^15zze4 of the Anti-Crisis Law, introduced the authority of the starost to provide a one-time grant from the Labor Fund to cover the ongoing costs of business operations to micro and small entrepreneurs. § Section 7 of the Support Ordinance grants the authority to the starost to grant the aforementioned. subsidies to micro and small entrepreneurs who, as of November 30, 2020, were engaged in business activities designated by PKD codes as for parking benefit (indicated above) and, in addition, for entrepreneurs engaged in service activities supporting air transportation (PKD: 52.23.Z), if their revenue from this activity, as defined by tax regulations, obtained in the month preceding the month of application, was at least 40% lower than the revenue obtained in the previous month or in the corresponding month of the previous year.

The grant may not be provided to an entrepreneur who has suspended operations for a period that includes November 30, 2020.

The grant application can be submitted until March 31, 2021.

Exemption from payment of social security, health and other contributions

The Support Ordinance led an exemption from the obligation to pay dues for social security, health insurance, the Labor Fund, the Solidarity Fund, the Guaranteed Employee Benefits Fund or the Bridging Pension Fund, respectively, for the period from January 1, 2021 to January 31, 2021, or for the period from December 1, 2020 to January 31, 2021, shown in the settlement declarations submitted for those periods, based on the rules set forth in Art. 31zo-31zx of the Anti-Crisis Law. Exempted may be a payer engaged as of November 30, 2020 in the predominant business activity defined as in the case of the grant for financing current business activities indicated above, and additionally in the business of passenger cabs (PKD: 49.32.Z), whose income from this activity within the meaning of tax regulations obtained in one of the two months preceding the month of application was lower by at least 40% in relation to the income obtained in the previous month or in the corresponding month of the previous year, if it was reported as a payer of contributions before November 1, 2020.

Contributions paid are refundable under the terms of Art. 24 of the Social Security Law.

As a condition of the exemption, the return (or registered monthly reports) must be sent no later than February 28, 2021, unless the payer was exempt.

The payer shall submit the request for exemption to the Social Insurance Institution by March 31, 2021 .