NEWSLETTER

No. 13, December 2021

Malinowski & Associates. Legal Advisors. Partnership

Table of contents

Reduction of excise taxes on fuel and electricity under the Anti-inflation Shield

On December 9, 2021, the Diet passed a law amending, among other things, the Excise Tax Law.

Under this law, the sale of electricity to a household energy consumer will be exempt from excise taxes from January 1, 2022 to May 31, 2022.

In addition, excise taxes on 95 and 98 gasoline will be reduced, as well as products made from blending these gasolines with bio-components. Currently, the excise tax per 1,000 liters is PLN 1,542, while in the period from December 20, 2021 to December 31, 2021 it will be PLN 1,369. Diesel excise tax, currently at PLN 1,173, will be reduced to PLN 1,065 per 1,000 liters. The excise tax on natural gas, which amounts to PLN 672 per 1,000 kilograms, will be reduced to PLN 364. This means that, in theory, fuel should be cheaper – in the case of gasoline by about. 17 cents / 1 liter, for diesel by approx. 11 cents / 1 liter, while for natural gas by approx. 3 cents. After the New Year, excise taxes will be raised again, but not to the starting amounts – the government’s proposals in this regard are described in the table below.

ACTION	Gasoline 95 and 98	Diesel	Natural gas
currently	1542 zloty / 1000 liters PLN 1,542 / 1 liter	1173 zł / 1000 liters PLN 1,173 / 1 liter	672 zł / 1000 kg PLN 0.0672 / 1 kg
20.12-31.12	1369 zloty / 1000 liters 1.369 PLN / 1 liter (-0.173 PLN)	1065 zloty / 1000 liters 1.065 PLN / 1 liter (-0.108 PLN)	364 zł / 1000 kg 0.0364 PLN / 1 kg (-0.0308 PLN)
1.01.22-31.05.22	1413 zł / 1000 liters PLN 1,413 / 1 liter (-0.129)	1104 zł / 1000 liters 1.104 PLN / 1 liter (-0.069 PLN)	387 zł / 1000 kg 0.0387 PLN / 1 kg (-0.0285 PLN)

 

In the period from January 1, 2022 to May 31, 2022, the excise tax rate for electricity, currently at PLN 5.00 per megawatt hour, will be PLN 4.60.

The anti-inflation shield also provides for changes to the retail sales tax. Retail sales of 95 and 98 gasoline, diesel fuels, biodiesel and natural gas for internal combustion engines will not be subject to tax from January 1, 2022 to May 31, 2022.

Countering usury, or lending restrictions

The government’s bill to amend certain laws to counter usury, which will be sent to the Parliament any day now, will introduce significant changes to loan contracts and burden lending institutions with additional obligations. The new rules will apply to consumer loan and credit agreements concluded after the effective date of the amendment.

The regulations indicated below will not apply to credit and loan agreements, provided by banks.

Non-interest expenses

The proposed amendments to the Civil Code will essentially make it more difficult to enter into what are commonly known as usurious interest contracts. The concept of the so-called “”new” concept will be introduced. “non-interest costs”, by which is meant:

1. margins, commissions or fees related to the preparation of the loan agreement, the granting of the loan or its servicing,
2. Fees related to deferment of loan repayment, default,
3. Costs of additional services: insurance, security, search for information on. of the borrower, if their incurrence is necessary for the conclusion of the contract,
4. remuneration of the lender’s agent or intermediary, if these costs are borne by the borrower.

Non-interest costs do not include notary fees and tributes of a public law nature (such as taxes).

In a loan agreement with an individual not directly related to that person’s business or professional activity, the maximum amount of non-interest expenses will be limited according to the formula:

MKP = K × n/R × 20%

In which the individual symbols stand for:

• MKP – the maximum amount of non-interest expenses,
• K – the total amount of the loan, understood as the sum of all cash not including the co-financed costs of the loan, which the lender issues to the borrower under the agreement,
• n – repayment period expressed in days, counting from the date of issuance of the object of the loan,
• R – the number of days in a year.

Let’s discuss this with an example. The total amount of the loan is PLN 10,000 and the agreement was concluded on January 1, 2022 (that’s when the funds were disbursed) for six months, i.e. until June 30, 2022. This therefore gives 180 days. In view of this, after substituting the above. data to the formula, it turns out that the maximum non-interest costs for a loan of PLN 10,000, granted for six months, will be approximately PLN 986.30.

Over the life of the loan, non-interest expenses cannot exceed 25% of the total loan amount.

Provisions on the maximum amount of non-interest expenses will be mandatory, which means that there will be no possibility to exclude or limit the aforementioned. rules in the contract.

Security for the loan agreement

If the parties want to provide collateral for claims under a loan agreement with an individual, entered into without connection with his business, such collateral will have to be specified in the agreement. Any subsequent security not specified in the contract will be void. The agreement should specify the method of security, the thing or right being secured and its value. The amount of collateral may not exceed the value of the object of the loan, plus:

1. Maximum interest for the period for which the loan was granted,
2. Maximum interest for a delay of up to 6 months, and
3. The maximum amount of non-interest costs.

The above restrictions do not apply in the case of collateral that is a mortgage or registered pledge, and in the case of contracts entered into by banks. With the introduction of this regulation, security in the form of a notarized deed of surrender to execution was also subject to additional requirements and limited to the aforementioned. heights. The application for an enforceability clause for such a notarial deed will need to be accompanied by a document confirming the release of the object of the loan to the borrower.

Information obligations of the lender and early repayment

Before concluding the agreement, the lender will be obliged to inform the borrower of the total amount of non-interest costs, the amount of interest and the amount due in interest.

If an individual borrower wants to repay the loan early, the lender will not be able to claim interest for the remaining term of the loan. In addition, the non-interest costs incurred will then be reduced by the costs relating to the period by which the term of the contract was shortened – even if the borrower incurred these costs earlier.

Additional requirements preceding the granting of consumer credit and the consequences of their non-application

The creditor will be required to collect from the consumer a statement of his income and expenses to the extent necessary to assess his creditworthiness before granting a consumer loan. What’s more, this statement will be verified by the lender – for this purpose, the borrower will present documents prepared by the employer or government bodies (e.g., PIT return).

A very important consequence of granting a loan in violation of the above. obligations or when it is clear from the consumer’s statement that, as of the date of the agreement, the consumer was in arrears on another obligation for more than 6 months, and the consumer credit was not used to repay the arrears, there is a prohibition on the disposal of claims from such an agreement. Violation of the prohibition will result in the invalidity of the divestiture. What’s more, the assertion of such a claim will be allowed only after the previous obligation has been paid in full (either extinguished or declared non-existent by the court). During the period of prohibition on the sale and collection of debts, the statute of limitations runs “normally,” while interest and non-interest costs may not accrue.

If a consumer defaults on a consumer loan, a lender that is not a bank or SKOK will be obliged to report the default to the Credit Information Bureau or the Economic Information Bureau.

Maximum non-interest costs of consumer credit

Currently, the Law on Consumer Credit already regulates the maximum amount of non-interest costs of consumer credit, but the amendment provides for the introduction of a distinction of these costs depending on the duration of the contract and a change in their amount.

Thus, for a consumer loan with a repayment period of not less than 30 days, the maximum non-interest expense is calculated according to the formula:

MPKK = (K × 10%) + (K × n/R × 10%)

In which the individual symbols stand for:

• MPKK – the maximum amount of non-interest expenses,
• K – the total amount of the loan,
• n – repayment period expressed in days,
• R – the number of days in a year.

Let’s simulate the maximum non-interest costs for a loan agreement of PLN 10,000, concluded for 180 days. The maximum non-interest cost will be PLN 1439.15.

For a consumer loan with a repayment period of less than 30 days, the maximum non-interest expense will be calculated according to the formula:

MPKK = K x 5%

In which the individual symbols stand for:

• MPKK – the maximum amount of non-interest expenses,
• K – the total amount of the loan.

In any case, the maximum non-interest costs cannot exceed 45% of the total loan amount.

Tightened requirements for lending institutions

Currently, a lending institution can operate as a joint-stock company or a limited liability company with a minimum share capital of PLN 200,000. The amendment calls for limiting the form of a lending institution to a joint-stock company with a minimum share capital of PLN 1,000,000.

In addition, funds used by lending institutions to provide consumer credit will not be allowed to come from the business of raising money from other entities, including the issuance of bonds or other debt instruments, or from undocumented sources.

Loan institutions will be subject to supervision by the FSA

If the law to counter usury comes into effect, lending institutions in the field of consumer credit will be subject to supervision by the Financial Supervisory Commission.

As a result, the lending institution will be subject to a number of reporting obligations. The FSC will also be able to request explanations, information and documents from such an institution.

Grants for electric vehicle charging stations

Until December 31, 2025, subsidies will be provided for the construction of electric vehicle charging stations or the construction of a publicly accessible hydrogen station.

The following entities may submit an application:

1. Local government unit,
2. Entrepreneur,
3. Cooperative,
4. Housing Community,
5. Individual farmer.

The amount of subsidy provided can be up to 50% of the cost, depending on where the station is located and its size.

Bill on protection of whistleblowers

December 17, 2021 was the deadline for the implementation of the EU Whistleblower Protection Directive, adopted on October 23, 2019. A draft law implementing the above-mentioned law is currently under review at the Government Legislation Center. Directive. We will take a closer look at the proposed changes, as they impose a number of obligations on employers. As the draft provides for a short period between the law’s enactment and its first day of effect – the vacatio legis is only 14 days – experts suggest proceeding with the implementation of some solutions in advance.

Generalizing, the law regulates the terms of coverage for employees and others who report or publicly report violations of the law. The law will not apply to the protection of classified information, professional secrecy and judicial deliberation, and criminal proceedings.

The law provides for three types of filings – internal filings, made under regulations adopted by the employer, external filings to public bodies, and a tool called “public disclosure.” Whenever the text refers to filing, it shall be understood as internal and external filings, and whenever it refers to disclosure, it shall be understood as public disclosure.

What violations does the law address?

A violation within the meaning of the Act is an act or omission that is unlawful or intended to circumvent the law, concerning:

• public procurement;
• services, products and financial markets;
• Prevention of money laundering and terrorist financing;
• Product safety and compliance;
• transportation security;
• environmental protection;
• radiological protection and nuclear safety;
• Food and feed safety;
• animal health and welfare;
• public health;
• consumer protection;
• privacy and data protection;
• Network and ICT system security;
• European Union’s financial interests;
• European Union internal market, including competition and state aid rules and corporate taxation.

Significantly, the employer, in the framework of establishing rules for reporting violations, may also include other violations within its scope.

Covered entities

Protection will be afforded to an individual who reports or publicly discloses information about an infringement obtained in a work-related context. In doing so, it should be pointed out that this applies not only to employees, but also to former employees, temporary employees, applicants for employment or persons providing work on a basis other than employment (including civil law contracts). In addition, the protection extends to entrepreneurs, partners, members of the bodies of a legal entity, persons performing work under the supervision and direction of a contractor, subcontractor or supplier, interns and volunteers.

The reporter is protected provided that he or she had reasonable grounds to believe that the infringement information was true at the time of reporting or disclosure. His personal information is not subject to disclosure without explicit consent.

Internal notifications

Internal notifications, i.e. those made at the workplace, apply to employers with at least 50 employees. Procedure for. such notifications shall be established by the employer in the internal notification regulations.

Regulations for internal applications

Internal reporting regulations are required to be established by an employer with at least 50 employees. For smaller employers, setting regulations is optional. An employer in the private sector with 50 to 249 employees is required to establish internal reporting regulations by December 17, 2023.

The employer establishes the rules and regulations after consultation with the company’s trade union organization, and if the employer does not have such an organization, the content of the rules and regulations should be consulted with employee representatives, selected in accordance with the procedure adopted by the employer.

The regulations come into force two weeks after they are made known to employees.

The regulations for internal applications should specify, in particular:

• An internal entity authorized by the employer to receive reports,
• ways to transmit notifications,
• information on whether the internal procedure includes acceptance of anonymous reports,
• An organizationally independent entity with the authority to take follow-up actions,
• obligation to confirm to the notifier the acceptance of the notification within 7 days of its receipt, unless the notifier did not provide an address to which the confirmation should be forwarded;
• obligation to undertake, with due diligence, follow-up,
• follow-up actions taken by the employer to verify information about violations of the law and measures that may be taken if violations are found,
• maximum time limit for feedback to the notifier, not to exceed 3 months from the confirmation of acceptance of the notification,
• understandable and unambiguous information on the procedure for making external notifications to public bodies and organizational units of the European Union.

Organization of receipt and verification of applications

The organization of receipt and verification of reports and follow-up should prevent unauthorized persons from gaining access to the information covered by the report and ensure that the confidentiality of the reporter’s identity is protected.

The employer is obliged to keep a register of internal notifications.

External submissions

An applicant may make an external application without first making an internal application. The procedures for external notifications apply to all players in the market.

The Ombudsman is the body that receives external reports of violations of the law in the areas covered by the law, performs preliminary verification of such reports, and forwards them to the competent authorities for follow-up.

External notifications of violations in the field within the scope of the public authority shall be accepted and verified by the competent public authority.

Public disclosure of violations

Public disclosure of violations is the susceptibility of information about the violation to the public.

The protections provided by the draft law on whistleblower protection apply to a whistleblower making a public disclosure in two cases:

1. if it makes an internal notification and then an external notification and the employer and then the public authority fail to follow up or provide feedback to the notifier in a timely manner, or
2. if it makes an external notification right away and the public authority fails to follow up or provide feedback to the notifier in a timely manner.

The provisions on public disclosure do not apply if the transfer of information was made directly to the press.

Anonymous submissions

The law introduces the possibility of making anonymous reports of violations when the possibility is provided for in the rules of internal reporting, and in the case of external reporting, in any case.

Retaliation and unfavorable treatment

The law stipulates the prohibition of retaliatory actions, i.e., those that may violate the rights of the reporter or cause him or her harm, caused by the reporting of a violation or public disclosure. The whistleblower protection described below will apply to all players in the market, both in the private and public sectors – regardless of the number of employees.

What’s more, if the work is or is to be performed on the basis of an employment relationship, the reporting party cannot be treated unfavorably because of the reporting or disclosure. In particular, unfavorable treatment is considered to be:

• refusal to establish an employment relationship,
• Termination or termination without notice of the employment relationship,
• Failure to conclude a fixed-term employment contract after the termination of a probationary contract, failure to conclude another fixed-term employment contract or failure to conclude an indefinite-term employment contract after the termination of a fixed-term contract – when the employee had a legitimate expectation that such a contract would be concluded with him,
• reduction in labor compensation,
• Withholding promotion or being overlooked for promotion,
• omission in awarding work-related benefits other than wages,
• Transfer of the employee to a lower job position,
• Suspension from the performance of labor or official duties,
• Transfer to another employee of existing duties,
• an unfavorable change in the place of work or work schedule,
• negative evaluation of work performance or negative opinion of work,
• the imposition or application of a disciplinary measure, including a financial penalty, or a measure of a similar nature,
• Withholding participation or omission from typing for professional qualification training,
• Unjustified referral for medical examination, including psychiatric examination,
• An action aimed at making it more difficult to find future employment in a particular sector or industry,

– unless the employer proves that he was guided by objective reasons.

An employee who has been treated unfavorably in connection with the filing or disclosure is entitled to a claim for compensation in an amount not less than the minimum wage.

In the case of persons who provide or are to provide a contract on the basis of a legal relationship other than an employment relationship, unfavorable treatment is considered, in particular, the termination, termination or refusal to establish a legal relationship under which work is to be provided.

Also protected are persons assisting in the filing or disclosure, or persons affiliated with the filer who provide work for the other party.

The applicant’s protection extends beyond the relationship with the employer. This is because the sanction of ineffectiveness will apply to the termination or termination without notice of a contract in business – including a contract for the sale, supply or provision of services due to the filing or disclosure. It is sufficient that the applicant is a party to such an agreement.

The law does not allow for a waiver of the aforementioned. rights.

Declarant’s exemption from liability

If the notifier had reasonable grounds to believe that the notification or disclosure was necessary to disclose a violation of the law in accordance with the law, making the notification or disclosure may not constitute grounds for disciplinary liability or liability for violation of the rights of others or obligations, particularly on the subject of defamation, violation of personal rights, copyright, protection of personal data and duty of secrecy (including business secrets). In this regard, it is recommended to review the employer’s contracts, the subject of which is the obligation of confidentiality.

The law prohibits assuming liability for damage caused by making a notification or disclosure.

Criminal liability

The bill provides for criminal liability for violating certain obligations.

Punishable by a fine, restriction of freedom or imprisonment for up to three years will be the following offenses:

1. obstructing notification
2. retaliation
3. Violation of the obligation to keep the identity of the reporter confidential
4. making a report or public disclosure of false information
5. Continuing to establish an internal procedure for reporting and following up on violations of the law
6. Establish an internal procedure for reporting violations that do not comply with the requirements of the law.

National Register of Debtors – computerization of bankruptcy proceedings

On December 1, 2021, the National Debtors Register, which replaces the Insolvent Debtors Register, went into effect. The amendment introduces full computerization of bankruptcy and restructuring proceedings and adapts consumer bankruptcy solutions to computerization requirements.

The National Debtors Register portal is now online, allowing searches for disclosed bankruptcy and restructuring proceedings. The data disclosed in the portal applies only to cases in which the bankruptcy petition was filed after November 30, 2021. The portal consists of two parts – a public one, accessible to any Internet user, and one accessible only to registered users.

In proceedings in which the application was received as of December 1, 2021, the case files for. consumer bankruptcy will be conducted by the bankruptcy trustee.

What will we find in the public portal of the NCR?

The National Register of Debtors discloses information about persons against whom proceedings are or have been pending:

1. restructuring
2. for an arrangement at a meeting of creditors
3. bankruptcy or secondary bankruptcy proceedings
4. completed with a final decision of prohibition to conduct business activity
5. for recognition of a decision on the opening of foreign insolvency proceedings
6. Enforcement proceedings that were discontinued due to ineffectiveness
7. Maintenance enforcement against those who are in arrears for more than 3 months.

The NCR also contains information on partners of commercial partnerships (general partnership, limited partnership, partnership, limited joint-stock partnership) who have unlimited liability for the company’s obligations if the company has been declared bankrupt, secondary bankruptcy proceedings have been initiated or the bankruptcy petition has been dismissed due to the company’s lack of assets.

The Registry only discloses information about cases in which the application initiating the proceedings was received as of December 1, 2021.

Part of the KRZ for registered users

Users with an account in the National Debtors Register can file applications and receive letters from bankruptcy cases electronically. Importantly, an account in the NCR is the same as an account in the Court Register Portal.

Obligation to submit letters through the NCR Portal

Bankruptcy proceedings for which the application was received no earlier than December 1, 2021, are conducted entirely electronically. All letters in the case – both addressed to the trustee and to the court, as well as to the parties – are filed and served through the portal. This also applies to claims submissions.

Bankruptcy petitions, filed as of December 1, 2021, shall be submitted only electronically. Only bankruptcy petitions for a non-business individual can be in paper form.

Letters are submitted on the forms provided in the portal. If the letter is filed with attachments, the attachments should be in the form of electronically certified copies of the documents (the certification can be done by a lawyer or legal counsel acting as an attorney and a licensed restructuring advisor). If the attachments are in an electronic copy (e.g., in the form of a scan), then – as in the case of applications submitted to the Court Registry Portal – the original letter or a certified true copy shall be submitted in paper form to the bankruptcy court within three days of the submission of the letter through the portal.

When is it not necessary to file letters through the NCR Portal?

The law provides several exceptions to the rule of filing letters electronically. Among the most important are:

1. letters containing classified information
2. bids submitted in the course of a tender or auction
3. Letters of creditors who are entitled to receivables from the employment relationship (with certain exceptions), alimony receivables and pensions for compensation for causing illness, incapacity, disability or death, as well as annuity rights. Significantly, these creditors may file applications and statements at the sub-office of any district court, orally communicating the contents of the application to an employee of the sub-office. The employee enters the contents of the application into the portal, then prints the application and submits it to the applicant for signature
4. letters from a debtor who is a non-business individual.

Letters from bankruptcy authorities

Decisions of the court are recorded and served only in the portal (this does not apply to creditors, who can file letters bypassing the portal). However, the first letters in the case, sent by the court, the judge-commissioner, the temporary court supervisor, the receivership administrator, the trustee or the body to which the regulations on the trustee apply mutatis mutandis, shall be served by traditional mail with the instruction that further letters will be served only through the portal. Importantly, if the addressee does not have an account on the NCR portal, the letter is left on file with the effect of delivery. After the letter is published on the Portal, the addressee has 14 days to receive the letter.

The time limit for filing an appeal against orders issued in closed session runs from the date the order is posted in the NCR. If the law stipulates that orders issued in closed session must be served, the time limit for appealing shall run from the date of service of the order.

The debtor, being a non-business individual, and creditors entitled to submit written requests, correspondence shall be served in the traditional manner.