OASIS

                        ORGANIZATION OF ADVOCATES SPECIALISING IN INTERNATIONAL SERVICES

POLAND 2010/2011

POLISH DEVELOPMENTS 2010/2011

On the 3rd of March 2011, an amendment of Commercialization and Privatization Act came into life. Main goal of the this statue is to improve a process of privatization In Poland by using instruments which are available actually at the financial market. It is to be achieved by following changes:

 On the 11th of April 2011 amendment of administrative procedure came into life. Governmental justification for the amending statue says that the purpose of changes is to introduce a possibility of suing not only acts of executive authorities but also creating a new legal device which will grant the parties of the administrative proceeding with possibility of bringing an action against national authority for prolixity in proceedings. When an authority continues to delay a proceeding without any legal or factual justification,  a party of that proceeding shall be allowed to lodge a claim about proceeding delay to the appropriate Voivodeship Administrative Court. If the claimant is successful and proves all the conditions of unjustified delay, a court shall indicate stipulated term, within an authority shall issue a desired decision.

 As far as entrepreneurs are concerned, there are some changes In polish tax law, which actually becomes one of most dynamic areas of law.

First of all, with the 1st January 2011, new rates of value added tax were introduced. Following rates of 23 %, 8%, 5% replaced the old rates of 22%, 7% and 3 percentage points. Moreover some services ,which until now were considered to be tax-free, become charged with the biggest 23 % rate i.e. educational services. Changes In tax rates become very unclear In the light of an amendment concerning polish classification of goods and services from 2008. It results In difficulties of recognizing which good or service shall be charge with which tax rate. Previously amendment In classification did not create confusion as the tax rate were reaming the same. After a change of VAT rate, all the products and services shall be taxed according to new classification. If an entrepreneur is not sure about correct tax rate, he shall  come out with a motion to proper tax authority for an individual tax interpretation. However, it is worth to notice that we are still waiting for further amendments of Polish tax law which shall introduce a new fee charge for an interpretation. Nowadays, an individual interpretation shall cost 40 PLN. However, there is an amendment to come this year which will charge companies with a fee of 1000 PLN.

 In year 2011 there are three main amendments which are to be discussed. First will concern penal liability for the actions resulting In company loss. This amendment is still Just a draft, However, second will concern a possibility to register a company In the National Registry via Internet In 24 hours and this will come into life from 1st of January 2012. The third important change relates to provision about transformation into capital company.

Polish Commercial Code stipulates that members of: board of directors, supervisory board, board of audit or liquidators are liable for action resulting In company civil loss. It it proposed that the company members who In fact run a company business (such as commercial directors or managers) shall be also liable for actions In effect of which a loss to a  company occurred. It is also to be amended that the prosecution shall not be started ex officio but after filing a motion by an interested entity.

However, it seems that the crucial amendment is yet to come and it will consider registry of a limited liability company In 24 hours. The statue amending Commercial Code and National Court Register Act states that with the beginning of the year 2012 limited liability company can be registered through Internet. New regulation applies Only to limited liability companies as there are most common legal forms In Poland. Amended statue gives opportunity to create a limited liability company using a standard articles of association which will be available In the Internet. Registry motion, articles of association and a list of shareholders shall be made in special forms available also In Internet. The whole motion shall be sealed by an electronic signature. National Registry Court shall examine the motion within 24 hours from the uploading date and then deciding about registering the company. It is important to notice that registration through Internet will not need articles of association approved by a notary. However, Internet registration applied only to companies which are going to have standard articles of association. In case, that shareholders would like to introduce some more complex conditions in articles, such company shall be registered In traditional way. Furthermore, Internet procedure does not allow to bring In the initial capital In form of non-financial contribution.

The last change concerns transformation process from an entrepreneur who is a natural person into a capital company. Entrepreneur which is a subject to a transformation shall become a capital company upon a moment of registration into National Registry Court. At the same time, natural person is removed from a  Business Activity Central Register and Information Record. Natural Person who is running a business upon the moment of transformation shall become a shareholder of newly formed company. New company shall be a legal successor and thus have all the rights and obligations of former entrepreneur, in particular licenses and tax allowances. Moreover, new company shall bear joint and several liability with former entrepreneur within 3 years from registration date for all the obligations which arose during running a business by a natural person. This amendment shall bi binding from 1^st July 2011.

It is interesting to notice possibilities which will natural persons have as an entrepreneurs who shall be able to transform their business into capital companies and register them from 1 January 2012 via Internet. 

On 27^th November 2010 Property Management Act Amendment comes into life. An amendment is aiming in improvement of acquisition of land or limitation of rights to a estate procedures for realizing public goals. One of the most important  changes is introducing a possibility of pre-payment in case of issuing a decision concerning immediate compulsory purchase of land. Ratio Legis of this amendment is to improve a position of expropriated owner. Pre-payment shall be granted in amount of 70% of compulsory purchase price. Another important issue is introducing a legal basis which grants a perfect of a district, with a right to issue a decision, on power of which an estate owner may be obliged to facilitate his property for the renovations or conservations of an infrastructure belonging to water or energy undertakings. Renovations and similar works which are to be performed can even last for 6 months.

On the 22^nd of December 2010 an amendment of the bankruptcy and reorganization act come into life.

The act presents necessity to fit polish statue to sentence of Constitutional tribunal from day of 10 November 2009 year (signature number P 88/08) declaring incompatibility of act with National Constitution.

An amendment concerns art. 28^th of Bankruptcy and Reorganization Act. Until now, in case of a motion for announcement of bankruptcy which was either filed by a debtor who was not entitled to do so or which was unpaid properly, the court returned back a motion without calling to file missing documents or payment. After this amendment, above mentioned restrictions will only relate to a debtor represented by a professional attorney or solicitor.

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