NEWSLETTER
No. 31, October 2023
Malinowski & Associates. Legal Advisors. Partnership
Table of contents
The company may seek redress for negative online reviews.
What is Small Social Security Plus all about?
Who can benefit from Small Social Security Plus?
How long can you take advantage of the small Social Security Plus?
The content of the preliminary questions.
What is an electronic receipt?
An application with practical applications.
Company can seek redress for negative online reviews
Introduction
“Can a legal entity demand that the person who violated its personal rights pay compensation for the harm it suffered under Article 448 of the Civil Code in conjunction with Article 43 of the Civil Code?”
The Court of Appeals in Gdansk presented the stated legal issue to the Supreme Court, as the company that brought the lawsuit to court sought compensation for violation of personal rights. The beginning of the dispute was the posting of a negative review about the company and its products on the portal
Google Maps.
According to the Civil Code, the court may award monetary compensation to an individual whose personal rights have been violated, and the provisions on the protection of personal rights apply mutatis mutandis to legal entities. However, the case law in this area is not uniform. There are also other rulings that do not award compensation to companies in this type of case. In justifying the question, the Court of Appeals noted that “The entire construction of the legal protection of personal property, both of a property and non-property nature, was formed primarily with natural persons in mind, and extending it to legal entities is possible only with an appropriate application ofthe law.” Thus, this court ruled out awarding compensation to legal entities on the grounds that they lack a sphere of feelings, value system, free will or the ability to feel harm. The position of the Court of Appeals in Gdansk was also supported by Ombudsman Marcin Wiącek, who joined the case.
Resolved
However, in a Civil Chamber resolution of October 3, 2023. The Supreme Court ruled: “Art. 448 § 1 of the Civil Code shall apply mutatis mutandis to legal entities.” This introduces the possibility for a legal entity to seek financial compensation for violation of personal rights from a private person who posted an opinion on the Internet.
A grammatical interpretation of Art. 448 of the Civil Code indicates that the aggrieved party may – irrespective of other measures needed to remedy the consequences of the violation (Article 24 of the Civil Code) – demand that he be awarded monetary compensation for the harm suffered or that an appropriate sum of money be awarded for the social purpose he has indicated. The court’s granting of these requests is optional, as evidenced by the phrase “the court may.”
In addition, the jurisprudence indicates that the reputation (good name, prestige) of an enterprise, understood as the totality of positive consumer perceptions and evaluations corresponding to the honor of an individual, is considered one of the basic personal property of a legal entity. It should be remembered that the good name of a legal entity, its reputation, as its personal good, can only be violated by untrue content (so: Judgment of the SA in Warsaw of 16.03.2021, V ACa 4/21, LEX No. 3171112).
Thus, legal entities can claim compensation for the violation of its personal rights from the offender.
Small Social Security Plus
What is Small Social Security Plus all about?
One of the obligations of entrepreneurs is to pay contributions to the Social Security Administration. Depending on the seniority in business, an entrepreneur can either pay contributions on a general basis or preferential ones. Small ZUS Plus (MZ+) is a relief on social security contributions for the smallest companies, effective in Poland from 2020. It provides a preferential method of paying social contributions. Hence, it is an exception to the general rule. Only entrepreneurs who meet certain conditions can take advantage of it. Those who are self-employed can voluntarily start paying social security contributions from an assessment base, the amount of which will depend on their business income in the previous calendar year. However, Small Social Security Plus does not cover the health contribution, which must be paid in full.
Who can benefit from Small Social Security Plus?
Small Social Security Plus is a solution for entrepreneurs whose revenues do not exceed 120,000. PLN and who previously benefited from Small Social Security. In order to take advantage of the regulation, one must be engaged in business on the basis of an entry in the Central Registration and Information on Business Activity (CEIDG) or other special regulations. It is also necessary to conduct business activities for not less than 60 calendar days in the previous calendar year. So you can’t pay Small Social Security Plus contributions in the first year of business. The Social Security relief will not benefit an entrepreneur who m. in. benefited from VAT exemption in the previous year.
How long can you take advantage of the small Social Security Plus?
Until now, lower social security contributions could be paid for a maximum of 36 months (3 years) during the next 60 calendar months (5 years) of business activity. This period should have included the time spent using Small Social Security. Only the period of business suspension is not included. So, if an entrepreneur resumes his business, he can continue to benefit from the Small Social Security Plus for the number of months he has left before the suspension of his business.
New legal regulation
On July 26, 2023. The President of the Republic of Poland has signed a law extending the period for which entrepreneurs can pay lower premiums. The new regulations went into effect on August 1, 2023. After that date, people who in 2023. have lost their eligibility for the Small Social Security Plus program, they can apply for preferential contributions for the next 12 months. In total, entrepreneurs will be able to pay lower premiums for 4 years, instead of the current 3 years.
Additional Small Social Security Plus is a voluntary solution to entrepreneurs who used MZ+ for at least one month in 2023 and whose income, of course, did not exceed PLN 120,000. However, entrepreneurs who ended paying lower premiums in 2022 will not be able to take advantage of the new solution.
According to data from the Ministry of Development and Technology as of December 2022, the Small Social Security Plus program benefited 235,700 people. individuals.
In addition, you can opt out of the program at any time. Failure to report to him by the deadline is considered a waiver of “small Social Security plus.”
Court of Justice of the European Union takes further arguments away from banks in franking cases
Introduction
The Court of Justice of the European Union, on whose rulings national courts rely, has issued another ruling on franking cases. At the same time, the verdict strengthens borrowers, who are mainly fighting for contract cancellations.
September 21, 2023. The Court of Justice of the European Union has answered three questions about franking credits. The preliminary questions were referred from the District Court for Warsaw – Śródmieście based on the case of the spouses of borrowers who in 2009. entered into a mortgage loan agreement for individuals indexed to the Swiss franc exchange rate with mBank. In the domestic proceedings, the court had doubts about several issues.
Content of preliminary questions
The court leaned against the bank’s information obligation to the customer, who had adequate knowledge in the field and a degree in management and finance. What’s more, he was aware of the loan offer, and the bank’s employees informed him that taking out a loan tied to a foreign currency involves exchange rate risk. This is because the consumer was also employed by mBank. The Polish court asked whether a trader is obliged to inform about the essential features of the contract and the risks involved in concluding the contract, even to a customer with adequate knowledge in the field?
Until now, banks have often argued that a borrower with a university degree should know “what he or she is signing up for,” and already people who were employed by banks should not have the right to pursue their claims, because according to the banks they are not consumers.
Another issue was the effect of the entry in the register of abusive clauses kept by the President of the OCCP of the contractual provision contained in the contract in question between the borrowers and mBank. For it turned out that on May 25, 2021. The President of the Office of Competition and Consumer Protection has entered the provisions of the model agreement used by mBank in the national register of prohibited clauses. These provisions of the model agreement also appeared in the borrowers’ spousal agreement. Thus, the court posed the question of whether, in order to declare an individually non-agreed contractual term unfair, it is sufficient to establish that the content of the term corresponds to the content of a provision of a contractual template entered in the register of prohibited clauses?
In the last question, the court had doubts about whether a borrower can take advantage of a fair provision if, as an alternative, he has the choice of an unfair provision. In the case in question, the borrowers, according to their agreement with mBank, could repay the loan either in zlotys (which were converted to Swiss francs at the selling rate set by the bank, a provision deemed unfair) or directly in Swiss francs.
Resolved
The EU Court, in its ruling in mBank Case C-139/22, addressed all the questions submitted.
First, the CJEU’s ruling clearly resolves doubts in favor of economically educated consumers. The Court stressed that the bank has an obligation to inform the borrower of the essential features of the contract concluded with him and the risks associated with this contract, even when the borrower has adequate knowledge in this area.
The CJEU also ruled that a court may consider a contractual term that was not individually negotiated to be unfair when it has been entered in the national register of prohibited clauses by the competent national authorities. The answer to this preliminary question may significantly speed up pending proceedings, as the national court will not have to examine in detail each time in individual proceedings a contractual provision whose content is equivalent to that of a standard contractual provision entered in the national register of prohibited clauses.
In response to the last question, the CJEU referred to the borrower’s ability to take advantage of a fair provision if, as an alternative, he also has an unfair provision to choose from. In its ruling, the Court said that the inclusion in a contract of two alternative terms for the performance of the same obligation owed to the borrower, one of which is unfair and the other lawful, allows the bank to speculate. Therefore, such a contractual mechanism may itself be unfair.
E-receipts on your phone
Introduction
Today’s regulations allow the issuance of an electronic receipt to the customer, but the problem becomes how to distribute it to the customer (Purchaser), specifically, how the cash register will “know” where to pass the e-paragon to the customer who has expressed a desire to receive it. The Ministry of Finance is coming with a solution to this problem by building a nationwide electronic receipt distribution platform (Receipt HUB) responsible for m. in. for linking an anonymous customer to the cash register’s issued receipts, receiving e-receipts issued by multiple cash registers, and distributing the e-receipt to the customer.
Phone app
Ministry of Finance September 15, 2023. has launched an app for storing receipts on citizens’ smartphones. E-Receipts 2.0 is a free application that allows you to manage expenses, report irregularities and check receipts with a QR code. The application is fully secure and completely anonymous. According to the information provided, the app does not collect any data on user activity, and all personalities are stored only on a given device with the possibility of maintaining them in the cloud. According to a news release on the tax.gov.pl portal, “The e-Paragons 2.0 application is a breakthrough in managing and controlling everyday expenses.”
The user of the mobile application will be able to set up an individual profile and store fiscal electronic documents on it. This will allow the buyer to be linked to issued sales documents and receive e-paragraphs issued by different cash registers.
What is an electronic receipt?
This is a digital form of fiscal receipt that replaces paper proofs of purchase. This is any fiscal confirmation of purchase sent electronically. According to Polish law,
The e-paragon is considered a full-fledged proof of purchase and payment.
How to use the application?
The app is available free of charge in the online Google Play and App stores. Nearly 20,000 have already downloaded the app since its inception. Poles. After downloading the app, buyers independently and easily generate an individual 15-character code that will become their unique identifier. Users will not have to provide their data such as name, phone number or PESEL. All that is required is for the user who wants to obtain an e-paragon to show the cashier the generated individual ID from the e-Paragons application while shopping. To later find receipts in the application, select “Wallet” in the main menu application window. Due to the sensitive data collected in the e-Paragon application, security is an important issue. The application is secured by PIN or biometrics (fingerprint or face scan).
The app version, available on iOS and Android, allows data to be stored in the cloud and synchronized. Thus, even after replacing the device and reinstalling the app, all data can be downloaded by the user.
Users can already add traditional receipts received in the store on their own, and soon it will be increasingly possible to download them electronically. Cash register models that allow the issuance of e-paragraphs will appear on the market. The use of such cash registers by stores and service establishments is entirely voluntary. However, using cash registers that provide the ability to issue e-paragraphs to customers will allow them to generate savings.
Application with practical use
The e-Paragony 2.0 application gives users the ability to keep receipts always at hand and segregate them by the types of expenses incurred. Guarantees less risk of losing needed receipts. Using the app will make reviewing daily expenses quick and easy. The app allows you to divide receipts into different categories, such as food, entertainment, restaurants, electronics, beauty or services. You can view receipts at any time, recall the products you purchased and check statistics. This will, first of all, make it easier to manage the household budget, and at the same time be good for the environment.
