NEWSLETTER
No. 27, February 2023
Malinowski & Associates. Legal Advisors. Partnership
Table of contents
Who can be held liable for antitrust violations?
Expanding the catalog of powers of the OCCP President.
Notaries will issue payment orders.
The extended family will no longer inherit the inheritance.
President of the OCCP with new powers will be able to interfere in the ownership structure of companies
On January 31, 2023, the Sejm received a government draft law on amendments to the Law on Competition and Consumer Protection and certain other laws (print No. 2990, hereinafter the “Draft”). The main premise of the project is the implementation of Directive 2019/1 of the European Parliament and of the Council (EU) of December 11, 2018, aimed at expanding the scope of powers vested in the competition authorities of the Member States (in Poland, such authority is the President of the Office of Competition and Consumer Protection, hereinafter referred to as: “President of the Office of Competition and Consumer Protection”). The draft has been referred for first reading.
The following will discuss the most important of the proposed solutions, which, by design, are expected to take effect 14 days after the law’s promulgation.
Who can be held liable for antitrust violations?
First, to sidestep any ambiguities that may arise in the course of further reading, let’s make a few remarks about antitrust law. Under this term is the law of (protection of) competition, which was covered primarily by the Law of February 16, 2007 on the Protection of Competition and Consumers (hereinafter: “u.o.k.k.”). The law introduced 2 fundamental prohibitions aimed at entrepreneurs, the violation of which may incur liability (such as payment of a fine).
The first prohibition relates to the conclusion of restrictive agreements between entrepreneurs who are independent of each other. The effect of such an agreement, which is prohibited under the law, is to eliminate, restrict or otherwise distort competition. For violation of the above prohibition, not only the entrepreneur is liable, but in some situations also the manager who, in the exercise of his function, contributed to the violation of this prohibition (e.g., the chairman of the board of directors of company X, who led the conclusion of an agreement between company X and company Y on the establishment of prices for the goods offered to be used by both companies).
The second prohibition applies to entrepreneurs with a dominant market position. Abuse of this position constitutes a restriction of competition, which is also sanctioned under the u.o.k.k. Unlike the violation of the first prohibition, the entrepreneur is solely responsible for the violation of this one.
To summarize the comments made so far, it can be said that under the current legislation, the entrepreneur committing the violation of antitrust prohibitions and, possibly, the manager is liable.
Can anything change in this regard? The answer to the question so posed can be found in the proposed wording of Art. 6b para. 1 and Art. 9a of the Project. According to these provisions, if an entrepreneur violates one antitrust prohibition, the entrepreneur exercising decisive influence over the entrepreneur directly violating the prohibition and, in certain situations, also the manager of the entrepreneur exercising decisive influence, also commit the violation, so to speak, automatically. Let us point out in passing that, according to the Draft, an entrepreneur will be considered an entrepreneur exercising decisive influence when he gives another entrepreneur (economically, legally or organizationally related to him) instructions on market behavior and the behavior of that other entrepreneur is aligned with the instructions given. In addition, the Draft introduces a presumption that an entrepreneur exercises decisive influence if its share in the capital of an entrepreneur over which it exercises decisive influence exceeds 90%.
Expansion of the catalog of powers of the President of the OCCP
The President of the OCCP is currently the only administrative body with the authority to apply and enforce antitrust laws. In a nutshell, this means that he is the entity issuing the decision in the course of the antitrust proceedings, in which he finds a violation of the above-mentioned prohibitions and orders the application of the so-called “prohibitions”. countermeasures. The remedies are aimed at stopping the violation. Representatives of science divide the indicated measures into those of a behavioral nature (i.e., those that require the entrepreneur to behave in some way or to stop a certain behavior) and those of a structural nature (i.e., those that change to some extent the existing organizational, capital or personnel structure of the entrepreneur). Based on the current wording of the provisions of the u.o.k.k. The President of the OCCP can impose any behavioral measure on an entrepreneur (the law only provides examples of such measures), while with respect to structural measures, he can only apply one. It consists in entrusting the performance of a specific business activity, including the performance of this activity at different levels of turnover, to individual entities within a capital group or to separate organizational units within the structure of an entrepreneur (e.g., entrusting a “daughter company” with the performance of a specific business activity that was previously performed by the “parent company” – the entrepreneur who violated the antitrust prohibition).
Under the Project’s premise, the OCC President will be given more choice with regard to measures of a structural nature. “Greater” in this case means unlimited, since the proposed new wording of the provision (i.e., Article 10(5) of the u.o.k.k.) only indicates examples of such measures. In addition to entrusting the performance of a certain business activity to another entity within a capital group/organizational structure, the catalog of listed measures will also include, for example, the division of an entrepreneur, the disposal of all or part of the assets of an entrepreneur (or several entrepreneurs), or even the disposal of shares that ensure control over an entrepreneur (or entrepreneurs). As you can guess, the application of the above measures will have a not inconsiderable impact on the continued operation of the entrepreneur. For this reason, it should be emphasized that they will be usable by the President of the OCCP only in exceptional situations (behavioral remedies should take precedence in the selection of remedies to be applied, the exception being when they could prove ineffective or effective, but more burdensome for the entrepreneur). The above solution may, in our opinion, jeopardize the realization of the right to property, guaranteed by Article. 64 of the Constitution.
It is worth noting in passing that before issuing a decision ordering the application of any of the remedies, the President of the OCCP informs the entrepreneur of the choice of remedy in each case so that the entrepreneur can directly address it.
As can be seen, the new powers of the OCC President can have a significant impact not only on the assets, but also on the organization or structure of the entrepreneur. Therefore, we invite you to contact our law firm – we can analyze the agreements you plan to enter into with other entrepreneurs for the risk of violating any of the antitrust prohibitions, as well as assist you at any stage of the antitrust proceedings already underway.
Notaries will issue payment orders
Representatives of the Law and Justice Party on January 10, 2023, submitted to the Sejm a bill to amend the Law on Notaries and some other laws. The draft has not yet been assigned a print number (it has been referred to the Legislative Bureau and the Bureau of Parliamentary Analyses for an opinion, as well as submitted to such bodies as the Supreme Court and the National Notary Council, among others, for consultation). The new regulations provided for in the draft are mainly aimed at expanding the powers vested in notaries and deputy notaries, which until now were exclusively vested in common courts.
Probably most of the readers associate a visit to a notary primarily with the conclusion of some agreement related to real estate, or with the preparation of the minutes of a company’s shareholders’ meeting. So how do the proposed regulations relate to economic turnover? We hasten to respond!
Notarial order for payment
One of the powers to be granted to notaries and deputy notaries is the issuance of notarial warrants. These orders will have the same effects and will be as valid as payment orders issued by ordinary courts. However, let’s take a closer look at the “new” payment orders.
At the outset, it is worth noting that not every notary (deputy notary) will be authorized to issue such a document. This competence, by design, is to be held only by the notary (deputy notary) who:
- First, he has been running a notary office for at least two years (in the case of a deputy notary, at least two years of employment in this capacity in a notary office is required),
- second – is a person against whom there has been no final ruling on the imposition of a disciplinary penalty, and
- third – he holds a certificate issued by the Minister of Justice on authorization to issue notarial payment orders. Interestingly, a notary (deputy notary) will not be able to issue more than 200 payment orders in a month.
However, a notarized payment order will not be able to be issued in every situation. For its issuance, it will be necessary to meet all of the following conditions:
- the notary (deputy notary) will be presented with an appropriate application for a payment order, in which the applicant – under pain of criminal liability – declares that no case has been previously pending or is pending for the same claim,
- the property claim (i.e., the amount to be covered by the payment order) will be a maximum of PLN 75,000, and it will not be possible to apply for a payment order covering only part of the claim,
- The legitimacy of the asserted claim will not be in doubt,
- the asserted claim will be proven by a document attached to the application (this document can be, in particular, a bill accepted by the debtor or the debtor’s demand for payment with his written statement of acknowledgment of the debt and an official document),
- the claim became due no earlier than 3 years before the application was filed.
In the absence of grounds for issuing a warrant, the notary shall prepare a report on the refusal to issue a warrant. This ruling is not appealable. The filing of the application will suspend the running of the statute of limitations for the claim covered by the application.
As a side note, it is only fair to point out that the above solutions resemble those used for the issuance of an order for payment in injunction proceedings pending before a district court and in electronic writ of payment proceedings.
Appeal procedure
After the issuance of the notarized order for payment, the person obliged to pay will have to be served with a copy of the order, along with a copy of the application for the order and the accompanying documents, as well as an objection form, instructions on how and when to file an objection and the consequences of not filing an objection. Interestingly, receipt of the indicated documents by an adult household member of the obligated person will be ineffective. The fiction of service, which is applicable in civil proceedings and allows a letter to be considered delivered on the last day on which notice of the opportunity to receive the letter is left, will also not apply in this case. Consequently, in a situation where the obligated person does not personally receive the parcel containing the notarized payment order, the order will become null and void.
An obligated person who has been served with a notarized payment order will be able to defend against it by filing a written objection within two weeks with the notary (deputy notary) who issued the order. In the event that it is impossible to serve the objection to the notary (deputy notary) who issued the order for various reasons, then the objection can be effectively filed with the council of the chamber of notaries with jurisdiction over the seat of that notary (deputy notary). Successful filing of an objection results in the notarized payment order becoming null and void and is covered by the notarized record. As a side note, it is worth noting that filing an objection to a notarized payment order will not require additional fees.
In order for an objection to be effective, it is critical to meet the prescribed deadline. If it is filed after the deadline, then, as a rule, it will not have the desired effect and the notary (deputy notary) will draw up a record in which he will refuse to declare that the payment order issued is no longer valid. However, in a situation where the deadline for filing an objection was not met, but the failure was not the fault of the obligated person, then the notary (deputy notary), at the request of the obligated person, will be able to restitute (that is, restore) the deadline for filing an objection.
A notarized order for payment with a note of non-objection (such a note will also be given to an order for payment in respect of which an objection has been unsuccessfully filed) will expand the catalog of enforcement titles. Consequently, it will be able to be submitted to the district court for an enforcement clause, and subsequently to a bailiff for enforcement proceedings.
The entry into force of the above solution should, by design, relieve the common courts of the burden of uncontested cases of lesser value, which would perhaps result in more efficient adjudication of more complex cases.
New recruitment for PKK
We would like to inform you that as of March 1, 2023, a new enrollment for Employee Equity Plans will start. Enrollment will be automatic and will include all employees, even those who have previously resigned from the program.
Self-enrollment entails an obligation on the part of the employer to provide employees with information on enrollment coverage by February 28, 2023.
The extended family will no longer inherit the inheritance
The government has proposed amending the inheritance law by limiting the circle of legal heirs.
At the outset, we would like to remind you that the Polish legal system currently distinguishes between two titles to inheritance – the so-called. Testamentary inheritance, that is, based on a declaration covering the last will of the deceased, and statutory inheritance, that is, based on rules established by the Civil Code. The primacy of testamentary inheritance over statutory inheritance results in the fact that we will apply the order of inheritance specified by law only when it turns out that the testator did not leave behind a will.
Today, even the most distant relatives are included in the circle of legal heirs. However, this does not mean that the portion of the estate left behind by the deceased will always be inherited by distant cousins, as the children and spouse of the testator always inherit first. Only when it turns out that these people are not present (either there were none at all, or they died childless before the testator) can the inheritance be allocated to further groups – parents, siblings and then grandparents and stepchildren. As a rule, if it turns out that one of the heirs – a child, brother, sister, grandfather or grandmother – does not live to see the opening of the inheritance (i.e., dies earlier than the testator), the share that would have fallen to him falls to his descendants. Descendants are considered relatives in a straight line, descended from a person, that is, taking some person A as a reference point, then the descendants of person A will be his children, grandchildren, great-grandchildren and so on (figuratively – climbing up the family tree). Thus, nephews, nieces and nephews (and their children), uncles and aunts, cousins and cousins and their offspring may be called to inherit. With larger families, this can add up to dozens of people, potentially appointed to the inheritance.
Legalization of the statement that someone is an heir after a person can occur in two ways. One of them is the so-called. Notarization of inheritance, which involves the notary drawing up a record, listing all those appointed to the inheritance, at the concerted request of these persons – in this option, all potential heirs must appear at one time at the notary and there must be no dispute between them about the basis of the inheritance and the circle of persons entitled to the inheritance. The second way is through a judicial declaration of inheritance. Then all potential heirs are summoned to court and become participants in the succession proceedings. Sometimes it happens that one of the heirs is abroad, the family has no contact with him or her, or the family tree has to be researched to establish further kinship. This can lead to significantly prolonged proceedings.
Such situations are to be met by the Government’s new idea to limit the circle of legal heirs.
Statutory inheritance under the current rules is as follows:
If the proposed changes go into effect, statutory succession will look like this:
So, as you can see, children and distant descendants of cousins and cousins will be excluded from the inheritance.
