Category: Coronavirus alert

A draft version of the so-called “Anti-Crisis Shield 4.0” has just reached the parliament (the “Draft Bill”). It introduces further amendments to the existing special purpose act, including ones that concern the public procurement law (“PPL”).

The Draft Bill amends the Act of March 02, 2020 on Special Solutions Related to Prevention and Combating of COVID-19, Other Infectious Diseases and Crisis Situations Arising from them (the “Act”).

Below you will find a summary of the suggested changes.

1. INITIATION OF PUBLIC PROCUREMENT PROCEDURE

Article 40 section 1 of PPL is about to change – when commencing an unlimited public procurement procedure, the contracting authority will no longer be obliged to place a relevant notice at a publicly available location within its registered office. It will be enough to publish it at the website. Other announcement-related obligations (the requirement to send a notice to the Public Procurement Bulletin and the European Union’s Publication Office) will remain unchanged.

2. EMPLOYEE CAPITAL PLANS

Article 7 of the Employee Capital Plans Act of October 04, 2018 has been modified, so that employee capital plan management/maintenance agreements will not be governed by the Public Procurement Law Act of September 11, 2019 (the “New PPL”) if the contract value is lower than the EU thresholds. The amended article 7 will become effective as of January 01, 2021.

3. AMENDMENTS TO AGREEMENTS

3.1. The Draft Bill entails automatic amendments to the agreement in case – after determining that circumstances related to COVID-19 affect proper performance of the agreement – the contracting authority (in cooperation with the contractor) introduces the amendment referred to in article 144 section 1 item 3 of PPL.

3.2. Voluntary nature of amendments
In case it is found that circumstances related to COVID-19 may affect proper performance of the agreement, the contracting authority may (in cooperation with the contractor) amend the agreement in accordance with article 15r section 4 of the Act, i.e. (i) change the completion date for the contract or its part, or temporarily suspend the performance of the agreement or its part; (ii) change the manner of performance of deliveries, services or construction works; (iii) change the scope of the contractor’s services, and introduce a corresponding modification of the contractor’s fee or the manner of its settlement – as long as the increase in the fee, caused by any subsequent change, does not exceed 50% of the initial value of the agreement.

4. CONTRACTUAL PENALTIES

4.1. Contractual penalties.
During the state of epidemic threat or the state of epidemic, and for 90 days after its end, the contracting authority cannot set off the contractual penalty related to non-performance or improper performance of the agreement against the contractor’s fee or other claims, and cannot seek satisfaction from the performance bond – as long as the event in relation to which the contractual penalty has been stipulated took place during the state of epidemic threat or the state of epidemic.

4.2. Period of prescription.
During the state of epidemic threat or the state of epidemic, and for 90 days after the end of the later state, the period of prescription for the contracting authority’s claims (for payment of a contractual penalty) and the validity term of a performance bond do not start to run; if a given time limit has already started running, it becomes suspended. The expiration of the time limits discussed above can occur no earlier than 120 days after the end of the later of the aforesaid states.

5. ADVANCE PAYMENTS AND PARTIAL PAYMENTS

The contracting authority will be paying the fee in instalments – after performance of a specific part of a public contract, or may pay advances towards the contract performance – in case of public contracts executed for a term of over 12 months. In such case, the contracting authority:

5.1. shall specify (in the agreement) the percentage of the total fee, due for the completion of specific parts. The final part of the fee can be no higher than 50% of the total fee due to the contractor;

5.2. shall specify that the advance payment can be no lower than 5% of the fee due to the contractor;

5.3. shall specify that in case of construction works agreements covering a term of over 12 months, with respect to which the contracting authority intends to make payments in instalments, the contracting authority may indicate (in the terms of reference) the value of the final part of the payment, which can be no higher than 50% of the fee due to the contractor.

6. BID SECURITY

The requirement to provide a bid security will be voluntary in nature, irrespective of the contract value.

7. PERFORMANCE BOND

7.1. In general, the contracting authority may require a performance bond: (i) corresponding to 5% of the total price specified in the bid or the maximum nominal value of the contracting authority’s obligation resulting from the agreement; or (ii) corresponding to 10% of the above – if justified by the scope of the order, or by the risk related to the contract performance, as detailed by the contracting authority in the terms of reference.

7.2. The contracting authority can make a partial return of the performance bond after the contract has been partially performed, as long as such possibility is covered by the terms of reference.

It is also worth noting that the National Appeals Chamber resumed its operations.

At https://www.uzp.gov.pl/strona-glowna/slider-aktualnosci/zasady-bezpieczenstwa-w-krajowej-izbie-odwolawczej/zasady-bezpieczenstwa-w-krajowej-izbie-odwolawczej you can check the applicable safety rules. The key ones are as follows:
– no more than 10 people at a time are allowed in the main hall, next to the Chancellery of the Public Procurement Office and the National Appeals Chamber;
– no more than 6 people at a time are allowed in the corridors leading to the courtrooms;
– no more than 1 person at a time is allowed in the toilets;
– anyone visiting the National Appeals Chamber will be obliged: (i) to disinfect their hands upon entering the building (before getting into an elevator) and before entering a courtroom (disinfectants and soap are provided by the National Appeals Chamber); (ii) to have their temperature taken before entering a courtroom; (iii) to observe the social distancing principles, i.e. to keep a distance of at least 2 meters from others; (iv) to have and properly use personal protective equipment that allows one to cover their mouth and nose; (v) to wear disposable protective gloves.

We are ready to assist you in evaluating your particular situation. Please feel free to contact us any time by email or telephone.

Sebastian Pietrzyk – Co-Head of Public Procurement
+48 606 406 531
sebastian.pietrzyk@actlegal-bsww.com

Marcelina Daszkiewicz – Co-Head of Public Procurement
+48 665 667 670
marcelina.daszkiewicz@actlegal-bsww.com

May 16, 2020 was the effective date for most provisions of the so-called “Anti-Crisis Shield 3.0.” The Act lifts the suspension of court and procedural deadlines. When will time limits start to run and how to count them?

Until now, during the coronavirus epidemic, time limits in court proceedings (incl. civil, criminal and administrative ones) have been suspended. This resulted from article 15zzs section 1 of the so-called Anti-Crisis Shield 1.0 to the Act of March 02, 2020 on Special Solutions Related to Prevention and Combating of COVID-19, Other Infectious Diseases and Crisis Situations Arising from them. Anti-Crisis Shield 3.0 revokes the aforesaid provision. Pursuant to article 68 sections 1 and 2 of the amended Act, time limits will start running after 7 days of the Act’s effective date, i.e. on May 24.

Anti-Crisis Shield 3.0 has some legislative deficiencies. The revocation of the suspending provision becomes effective on the day following the Act publication date (i.e. May 16). As a result, there is no legal basis for suspension of time limits between May 16 and 23, 2020. Nevertheless, the lawmaker’s intentions are clear. We believe there is no doubt that time limits will start running on May 24.

It needs to be noted that the terms which have not begun to run at all will start anew. Those which began to run before Anti-Crisis Shield 1.0, and were subsequently suspended, will continue (rather than start once again).

Example 1:

The act suspending time limits came into force as of March 31, 2020. The court delivered a payment order to the defendant on April 15, 2020. The two-week deadline for submission of an objection to the payment order did not start running at all. The new Act came into effect as of May 16, 2020. The term starts running after 7 days of the Act’s effective date. Consequently, May 24, 2020 is the first day of the term. We need to bear in mind that the time limit cannot end on a Saturday or Sunday. In this case, it expires on June 08, 2020.

Example 2:

The court delivered a payment order to the defendant on March 18, 2020. The act suspending time limits came into force as of March 31, 2020. The deadline for submission of an objection is suspended. However, 12 days out of that 2-week term have already passed (March 19-30). Only 2 days are left. The new Act came into effect as of May 16, 2020. The term continues running after 7 days of the Act’s effective date. Consequently, May 24, 2020 is the thirteenth day of the term. It expires on May 25.

Please feel free to contact us for any questions you might have.

Piotr Wojnar
Attorney-at-law | Managing Partner
piotr.wojnar@actlegal-bsww.com
+48 602 660 610, +48 22 420 59 59

Barbara Szczepkowska
Legal counsel | Partner | Co-Head of Bankruptcy and Restructuring
barbara.szczepkowska@actlegal-bsww.com
+48 602 260 127, +48 22 420 59 59

Marek Miszkiel
Legal counsel | Partner | Co-Head of Bankruptcy and Restructuring
marek.miszkiel@actlegal-bsww.com
+48 603 553 566, +48 22 420 59 59

May 16, 2020 was the effective date for most provisions of the Act of May 14, 2020, amending specific acts in terms of protective actions related to the spread of SARS-CoV2 (Dz. U. / Journal of Laws of 2020, item 875), commonly referred to as “Anti-Crisis Shield 3.0.” Civil procedure has been amended to extend the possibility to conduct remote hearings (videoconferencing) and issue rulings at closed-door sessions.

Pursuant to the newly-adopted Act, the following will apply to cases examined under the Code of Civil Procedure during the state of epidemic or epidemic threat, and for a year of the end of the later of them:

• videoconferencing will be used for court proceedings. In order to have a remote hearing, the parties to the procedure needed to be in court buildings, e.g. in their city/town of residence. Now they will be able to participate without leaving their home. Traditional hearings can be held under exceptional circumstances, as long as they do not pose a major threat to the participants’ health. The lawmaker left ample room for interpretation as regards the criteria to adopt for evaluation whether the hearing will not expose participants to excessive hazard. It seems that such criteria could include the age of participants, their total number, the stage of epidemic, etc.;

• if the court is unable to conduct a remote hearing, while a traditional one might pose a threat to the participants’ health, the court will be entitled to examine the case at a closed-door session, unless any party objects. An objection can be filed within 7 days of the delivery of a notice about a closed-door session. Only individuals that are not represented by a professional legal advisor will be notified about such right to object;

• if so decided by the president of the court, the judging panel (apart from the presiding judge and clerk) may participate in the hearing through means of electronic communication (i.e. they will be able to participate from home), except for the hearing at which the case gets closed;

• in cases where the evidentiary procedure has already been completed, the court may close the case and issue a ruling at a closed-door session, after receiving the parties’ (or participants’) written positions;

• the period of application of article 374 of the Code of Civil Procedure has been extended, making it possible to examine appeals brought before November 07, 2019 at closed-door hearings (unless a party applies for a standard hearing or for evidence involving testimony of witnesses/parties). A request for a standard hearing can be filed within 7 days of the delivery of a notice about a closed-door session. In same of withdrawal of a lawsuit or appeal, or with respect to invalidation of proceedings, the court examines the case at a closed-door hearing.

Please feel free to contact us for any questions you might have.

Piotr Wojnar
Attorney-at-law | Managing Partner
piotr.wojnar@actlegal-bsww.com
+48 602 660 610, +48 22 420 59 59

Barbara Szczepkowska
Legal counsel | Partner | Co-Head of Bankruptcy and Restructuring
barbara.szczepkowska@actlegal-bsww.com
+48 602 260 127, +48 22 420 59 59

Marek Miszkiel
Legal counsel | Partner | Co-Head of Bankruptcy and Restructuring
marek.miszkiel@actlegal-bsww.com
+48 603 553 566, +48 22 420 59 59

In response to act BSWW’s request for legislative actions, the Ministry of Justice has announced that it is working on a simplified restructuring procedure for enterprises.

At the onset of the epidemic, act BSWW asked the Ministry of Justice to suspend the obligation to submit bankruptcy petitions. This solution was included in the Anti-Crisis Shield 2.0. However, it was somewhat different from our recommendations. Last Friday, we received an official response to our legislative suggestions. The Ministry explained why it had not decided to suspend the declaration of bankruptcy upon the creditor’s request in case the debtor’s insolvency is caused by COVID-19. The Ministry believes that the best way to ensure protection against the creditor’s motion for declaration of bankruptcy is the debtor’s submission of a restructuring application. In case of concurrence of the bankruptcy and restructuring petitions, the latter is generally considered to prevail. However, the situation is far from simple here.

Unfortunately, the current restructuring procedure is not adjusted to mass insolvencies that we are witnessing right now. Courts were not keeping pace with demand even before the epidemic, when the number of incoming petitions was usual. The period between the submission of a restructuring application and the opening of proceedings or the creditors’ meeting (aimed at voting on arrangement) was often so long that the company was losing the ability to perform the arrangement and was left with no other option than bankruptcy. If all enterprises suffering from financial difficulties submitted restructuring applications now, courts would get stuck for years. It would be advisable to simplify the regulations, making it possible for courts to open restructuring proceedings almost automatically. Also, the restructuring procedure is expensive and (subject to some exceptions) can be afforded primarily by large enterprises that have sufficient resources to pay the costs. In practice, the enterprise should have over PLN 100,000 assigned for costs alone. Of course, the exact amount depends on the specific circumstances of a given case. The fee of an administrator in remedial proceedings varies from approx. PLN 15,000 (extremely rare in practice) to over PLN 1 million. It is strongly recommended to introduce regulations minimizing those costs. Additionally, preparation of the restructuring application, all appendices and the initial restructuring plan is time-consuming and complicated. The procedure should be streamlined.

In its letter, the Ministry mentioned that it was working on legal amendments to make it possible to conduct restructuring procedures during the state of epidemic and over a limited period after its end, using a simplified procedure. This is very good news. What we need is a simple, quick and comprehensible procedure that would allow businesses to recover from the epidemic-induced crisis. Hopefully, the new regulations will indeed make restructuring procedures much more accessible.

Please feel free to contact us for any questions you might have.

Piotr Wojnar
Attorney-at-law | Managing Partner
piotr.wojnar@actlegal-bsww.com
+48 602 660 610, +48 22 420 59 59

Barbara Szczepkowska
Legal counsel | Partner | Co-Head of Bankruptcy and Restructuring
barbara.szczepkowska@actlegal-bsww.com
+48 602 260 127, +48 22 420 59 59

A draft of so-called “Anti-Crisis Shield 2.0” has just reached the Sejm (the “Draft Bill”). The Draft Bill contains further amendments to the special-purpose act already in place, incl. ones revising the Public Procurement Law (the “PPL”). Below you will find a summary of the proposed changes.

1. AMENDMENTS TO PUBLIC CONTRACTS

1.1. It is still possible to modify a contract executed under PPL in terms of deadline, manner of contract performance, scope of services and preclusion of contracting authorities’ liability (incl. those that award utility contracts) for refraining from determination and pursuit of contractor’s financial obligations (e.g. contractual penalties), or for introduction of amendments to contracts – upon the conditions specified in the Draft Bill.

1.2. The Draft Bill expands the list of circumstances (related to COVID-19) which affect or may affect contract performance, of which the parties should notify each other. Based on the Draft Bill, the circumstances will include “other circumstances which prevent or materially hinder contract performance.”

1.3. The circumstances listed in the last version of the Anti-Crisis Shield, as well as the ones proposed in the new version will apply to subcontractors and further subcontractors equally.

1.4. The Draft Bill includes a new provision applicable to contractors based outside Poland which reads as follows: “where a contractor is based or carries out actions related to contract performance outside Poland, the documents issued by relevant institutions in the countries or such contractors‘ statements shall be required instead of the documents referred to in subsections 1 – 5. ”

1.5. The Draft Bill also modifies the rule of amending public contracts in terms of remuneration. The provision currently in effect: “a change of the scope of services provided by the contractor and a corresponding adjustment of the contractor’s remuneration, provided that the increase of the remuneration resulting from each consecutive change is not higher than 50% of the original contract value” will be replaced with the following provision: “a change of the scope of services provided by the contractor and a corresponding adjustment of the contractor’s remuneration or manner of settling the contractor’s remuneration.” This means that an adjustment of remuneration or the manner of settling the remuneration will go hand in hand with the change of the scope of the services – based on the special-purpose act (its former and new version) it is not possible to seek an adjustment of the remuneration (the manner of settling the remuneration) without changing the scope of the services as well.

1.6. Based on the Draft Bill, public contracts will be executed in accordance with the following provision: “During the state of epidemic threat or the state of epidemic and the ensuing travel restrictions, public contracts are executed in written form (or are otherwise null and void) or in electronic form with qualified electronic signature, provided that the contracting authority consents to such manner of executing the contract. ”

1.7. It is expected that the provisions of the Draft Bill will apply to those public contracts which are not covered by the provisions of the PPL.

1.8. The same rules of notification and contract amendment were introduced with respect to offset contracts executed on the basis of the Act on Selected Contracts Executed in Connection with the Performance of Contracts of Fundamental Importance for National Security of June 26, 2014.

1.9. On a side note, it is worth adding that in order to introduce amendments to a public contract, it is necessary for parties to reach an understanding and enter into an amending annex. This means that claims of one of the parties do not automatically lead to amendments. The same is true for changes that could be related to the current COVID-19 threat.

2. CONTRACTING AUTHORTIES’ LIABILITY

There have been no changes to the provisions involving the preclusion of contracting authorities’ liability, arising from the Liability for Breach of Public Finance Discipline Act, for amendments to a public contract and refraining from determination and pursuit of claims arising from non-performance or improper performance as a result of circumstances related to COVID-19.

3. NATIONAL APPEALS CHAMBER

1.1. The Public Procurement Office together with the National Appeals Chamber and the Ministry of Development are working on solutions that would allow the National Appeals Chamber to resume hearing appeals.

1.2. Based on the information available on the Public Procurement Office’s website, a temporary procedure has been developed, where the National Appeals Chamber is to issue rulings on the basis of documents provided by the parties, however, further organizational and legislative changes are required for the purpose of implementing this solution.

Given the foregoing, we recommend filing appeals online, using a qualified electronic signature.

We reiterate all our recommendations for contractors and contracting authorities, related to the current situation, as provided in the previous alerts (alert 1 i alert 2).

We are ready to assist you in evaluating your particular situation. Please feel free to contact us any time by email or telephone.

Sebastian Pietrzyk – Co-Head of Public Procurement
+48 606 406 531
sebastian.pietrzyk@actlegal-bsww.com

Marcelina Daszkiewicz – Co-Head of Public Procurement
+48 665 667 670
marcelina.daszkiewicz@actlegal-bsww.com

Actions aimed at quelling the spread of COVID-19, such as border closures, flight cancellations and severe restrictions on gatherings and travel, may have a massive impact on business operations, especially when it comes to resolutions adopted by shareholders, management boards and supervisory boards.

If resolutions cannot be passed by the shareholders meeting or management board, it may have a significant adverse impact on the company’s daily business.

In order to address the needs of shareholders and members of corporate bodies, we wish to offer some insight on solutions that may help mitigate the impact of the state of epidemic, as well as an overview of the amendments to the Commercial Companies Code, introduced as part of the so-called “Anti-Crisis Shield” on the basis of the Act of March 31, 2020, amending the Act on Special Solutions Related to Prevention and Combating of COVID-19, Other Infectious Diseases and Crisis Situations Arising from them, as well as amending selected other acts (the “Act”).

Supervisory Board

It might be easier for a supervisory board to operate if the following options are applied:
– passing written resolutions by circulation:
– voting on resolutions through electronic means;
– proxy voting (in writing).

Now, when the Act has been passed and come into force, adoption of resolutions in the manners listed above is possible with no need to define the basis for such action in the company’s articles of association (unless the articles of association expressly exclude such options).

Moreover, as a result of amendments to the Commercial Companies Code, introduced by the Act, resolutions on matters put on the agenda during a supervisory board meeting, election of the supervisory board president or deputy president, appointment of a management board member, and dismissal or suspension of such individuals can also be adopted by circulation or through electronic means.

Management Board

The Act has also modified the provisions of the Commercial Companies Code as regards adoption of resolutions by management boards. It is now allowed to:
– attend meetings through electronic means (unless the company’s articles of association expressly exclude this option);
– pass resolutions by circulation or through electronic means (unless the company’s articles of association expressly exclude this option);
– vote in writing by delegating the voting power to another management board member (unless the company’s articles of association expressly exclude this option).

Meetings of shareholders

Shareholders meetings may only be held in Poland, and should take place in the city/town where the company’s registered office is situated, or at a different location, as specified in the company’s articles of association or agreed upon by all shareholders.

Shareholders who are unable to attend a meeting in person may use the following solutions:

1) Proxy voting

A shareholder may appoint a proxy who will attend the meeting and vote on the shareholder’s behalf (unless applicable laws or the articles of association impose any restrictions in that respect).

A proxy should be granted in writing or will otherwise be null and void.

The company’s management board members and employees cannot attend a shareholders meeting in the capacity of a proxy.

2) Voting in writing (in a private limited liability company)

In the case of a private limited liability company, shareholders can pass resolutions in writing, i.e. by:
– expressing a written consent for a resolution to be adopted; or
– holding a vote on a resolution in writing, following all shareholders’ approval of such voting procedure.

A vote in writing may be held irrespective of the place where the shareholders are when casting a vote.

Not all resolutions may be adopted by circulation, though. Voting in writing is not an option in case voting secrecy is required (e.g. in case of a resolution on dismissal of a management board member or other HR issues).

3) Attending a meeting through electronic means

A shareholder may attend a shareholders meeting through electronic means (videoconference, teleconference, etc.).

The Act allows the possibility to participate in a meeting through electronic means, regardless of whether the articles of association so permit (unless the articles of association expressly exclude such option).

The following conditions apply to attendance through electronic means:
– a decision on attendance through electronic means is made by the person convening the meeting;
– the shareholders meeting notice needs to include information about the manner of participation, speaking, performance of voting rights and raising objections to the adopted resolution(s);
– real-time two-way communication needs to be ensured during the meeting, while all participants who are outside its venue must be able to speak at the meeting;
– shareholders can also participate and vote through proxies, exercising their voting rights before or during the meeting.

Detailed rules for participation through electronic means should be specified in bylaws adopted by the supervisory board (or in case there is no supervisory board in a private limited liability company – in bylaws adopted in a resolution of shareholders (which can be passed outside of a shareholders meeting).

However, this format of a shareholders meeting is not equivalent a virtual meeting. This means that the following rules apply to meetings held through electronic means:
– a meeting should be held in a specific venue in Poland, determined in accordance with the Commercial Companies Code and the company’s articles of association;
– the chairperson and the clerk (or a notary public, if the notarial form is required for minutes from the meeting) must be present at the meeting, while the remaining participants are allowed to communicate electronically;
– written minutes from the meeting are required.

In case of public companies, the Act also implements the obligation to ensure a real-time broadcast of a shareholders meeting.

Moreover, the Act includes provisions governing the manner in which companies receive, register and count electronic votes. These provisions will come into effect as of September 03, 2020, though.

4) Using the IT system

Shareholders may make decisions using the model resolution available in the IT system but this option is only available to private limited liability companies established through the IT system.

There is no need to hold a formal shareholders meeting in order to pass this type of resolution, with the only condition for its valid adoption being that all the shareholders should vote by submitting a relevant statement through the IT system.

The above-mentioned voting statements must be confirmed with an electronic signature, a qualified electronic signature or a trusted signature.

Extension of deadline for preparation and approval of financial statements in relation to CVOID-19

The Act includes solutions aimed at helping companies to meet the deadline to hold an annual shareholders meeting, at which shareholders approve the company’s financial statements for the previous financial year.

The Act includes a provision according to which the minister competent to handle public finance affairs would be authorized to issue a regulation entitling him/her to postpone the deadlines for the approval of financial statements in case of the state of epidemic threat or the state of epidemic, considering the need to ensure proper performance of obligations in that respect.

On March 2020, the Minister of Health issued a regulation specifying new deadlines for fulfillment of recordkeeping obligations, as well as obligations related to preparation, approval and publication of financial statements or information, and their submission with competent registries, units or authorities (Dz.U. / Journal of Laws of 2020, item 570), on the basis of which the deadline has been extended for preparation of separate financial statements, directors’ reports and consolidated financial documents of capital groups.

Pursuant to the regulation:
– the deadline to prepare annual financial statements, directors’ report, and consolidated financial statements / report on capital group operations has been extended by 3 months, i.e. they should be made within 6 months of the balance sheet date (if the financial year ends on December 31, 2019, the deadline is June 30, 2020);
– the deadline to approve annual financial statements, directors’ report, and consolidated financial statements / report on capital group operations has been extended by 3 months, i.e. they should be approved within 9 months of the balance sheet date (if the financial year ends on December 31, 2019, the deadline is September 30, 2020);

In case of entities that are supervised by the Polish Financial Supervision Authority, the aforesaid dates have been extended by 2 months.

The extended deadlines apply to obligations concerning the financial year ended after September 29, 2019, yet no later than April 30, 2020, whose due date did not fall before March 31, 2020.

The regulation came into force as of March 31, 2020.

Remuneration policy

According to the Act, in case of declaration of the state of epidemic threat or the state of epidemic, the minister competent to handle the affairs of financial institutions is authorized to issue a regulation specifying a different deadline for adoption of a resolution on remuneration policy for management and supervisory board’s members, as discussed in article 36 section 1 of the Act of October 16, 2019 on Amendments to the Act on Public Offerings and Conditions for Introduction of Financial Instruments into Organized Trading, and on Public Companies, and Amendments to Selected Other Acts.

In case such regulation is issued, a shareholders meeting’s resolution on remuneration policy should be adopted within the deadline specified in the regulation.

***

Many of the solutions outlined above may significantly facilitate and expedite the operations of corporate bodies and daily business, both during the epidemic and afterwards.

In light of the existing and planned regulations, now might be a good time to insert relevant provisions into the company’s constitutional documents, adopt the required policies or grant relevant proxies.

Our corporate law team is ready to address any questions or doubts you might have. Please feel free to contact us.

Marek Wojnar
marek.wojnar@actlegal-bsww.com
+48 601 379 610, +48 22 420 59 59

Piotr Wojnar
piotr.wojnar@actlegal-bsww.com
+48 602 660 610, +48 22 420 59 59

Janusz Szeliński
janusz.szelinski@actlegal-bsww.com
+48 501 108 468, +48 22 420 59 59

Katarzyna Góra
katarzyna.gora@actlegal-bsww.com
+48 609 255 616, +48 22 420 59 59

Aleksandra Sztajer
aleksandra.sztajer@actlegal-bsww.com
+48 731 208 274, +48 22 420 59 59

In the Supervisory Impulses Package for the Security and Growth of the Capital Market, the Polish Financial Supervision Authority (KNF) announced relief for businesses regarding (among others) the offering documents processing. As promised, the “Anti-Crisis Shield,” adopted on March 31, 2020, amends applicable regulations regarding the obligation to submit an offering memorandum to KNF in the case of the so-called “rolling” offerings.

Based on the revision of the Act on Public Offering, Conditions Governing the Introduction of Financial Instruments to Organized Trading, and Public Companies of July 29, 2005 (Dz. U. / Journal of Laws of 2005 no. 184, item 1539, as amended) (the “Public Offering Act”), which was enacted on November 30, 2019, a public offering of securities addressed to fewer than 150 natural or legal persons per a Member State, qualified investors excluded, in the case of which the number of persons to whom it is addressed plus the number of persons to whom such public offerings of the same type of securities were made over the preceding 12 months exceeds 149, requires the publication of an offering memorandum, which needs KNF’s approval.

In other words, offerings made over a 12-month period are added together. If the number of addressees of such offerings exceeds 149, an offering memorandum regarding the offering, approved by KNF, must be published (the Public Offering Act provides for one exception – an offering addressed exclusively to the holders of same-type securities originating from the same issuer or to entities which received offerings of purchasing the issuer’s bonds as part of debt conversion following a purchase of other bonds of the same issuer created earlier.

In accordance with the act amending the Act on Special Solutions Related to Prevention and Combating of COVID-19, Other Infectious Diseases and Crisis Situations Arising from them as well as amending selected other acts (Dz. U. / Journal of Laws of 2020, item 568), if the state of epidemic threat or the state of epidemic is announced, offering memoranda regarding this type of public offerings will not require KNF’s approval. The requirement is to be suspended until the state of epidemic threat or the state of epidemic is cancelled and a month thereafter.

This will significantly facilitate and expedite the procedure faced by the issuers seeking to raise capital by way of several offerings addressed to fewer than 150 persons (qualified investors excluded).

If you have any questions, do not hesitate to contact us.

Piotr Wojnar
Attorney-at-law / Managing Partner
piotr.wojnar@actlegal-bsww.com
+48 602 660 610, +48 22 420 59 59

Małgorzata Stefaniak
Attorney-at-law / Partner
malgorzata.stefaniak@actlegal-bsww.com
+48 692 546 207, +48 22 420 59 59

As part of the so-called “Anti-Crisis Shield,” March 31 saw the Polish President sign an act (the “Act”) that contains modifications related to the public procurement law (“PPL”). Below you will find a summary of changes to the previous version of the “Anti-Crisis Shield” (the “Draft”) that we discussed in our alert of March 24, 2020.

1. PRECLUSION OF THE APPLICATION OF PPL ACT – article 6 section 1 of the Act

1.1. The Act does not introduce any modifications to the Draft. PPL will not apply to orders for services or deliveries which are necessary to prevent COVID-19 if the disease is highly likely to spread in a fast and uncontrollable manner, or if required for the purposes of public health protection. Please note that pursuant to article 46c of the Human Infections and Infectious Diseases Prevention Act of December 05, 2008, “public procurement regulations do not apply to orders for services, deliveries or construction works, issued with the aim of preventing or combating the epidemic within the territory covered by the state of epidemic threat or the state of epidemic.”
This provision specifies a clearly broader range of orders that are exempt from the application of PPL during the epidemic since it includes construction works.

2. AMENDMENTS TO PUBLIC CONTRACTS

2.1. It is possible to modify an agreement executed under PPL in terms of deadlines and remuneration. Also, the Act precludes liability of contracting authorities (incl. those that award utility contracts) for refraining from determination and pursuit of contractor’s financial obligations (e.g. contractual penalties), or for introduction of amendments to agreements – upon the conditions specified in the Act. Both these solutions have remained unchanged from the Draft.

2.2. The deadline has been extended for a party to a public contract to respond to the other party’s notification about the impact (whether actual or potential) of circumstances related to COVID-19 on proper performance of the agreement. The current term is 14 days from receipt of a notification, along with justification (and evidence, i.e. relevant statements or documents). The previous deadline was 7 days.

2.3. On a side note, it is worth adding that in order to introduce amendments to a public contract, it is necessary for parties to reach an understanding and enter into an amending annex. This means that claims of one of the parties do not automatically lead to amendments. The same is true for changes that could be related to the current COVID-19 threat.

2.4. It has been expressly stated that COVID-19 circumstances discussed in the Act cannot independently serve as the basis to exercise the contractual right of rescission.

3. CONTRACTING AUTHORITIES’ LIABILITY

There have been no changes to the provisions involving the preclusion of contracting authorities’ liability, arising from the Liability for Breach of Public Finance Discipline Act, for amendments to a public contract and refraining from determination and pursuit of claims arising from non-performance or improper performance as a result of circumstances related to COVID-19.

4. NATIONAL APPEALS CHAMBER AND INSPECTIONS

There are new regulations related to the National Appeals Chamber.

4.1. During the state of epidemic, declared due to COVID-19, the National Appeals Chamber does not hold any sessions and hearings
in the presence of parties and participants to the appeal procedure.

4.2. The Act does not interrupt or suspend the period for submission of an appeal, meaning that contractors that want to use legal protection measures will be bound by the dates specified in PPL. In case of an appeal, the standard term will be 5 or 10 days of knowledge about the basis for appeal submission.

We recommend filing appeals online, using a qualified electronic signature.

4.3. The Act does not suspend the inspections of prior public contracts co-financed by the European Union, which are conducted by the President of the Public Procurement Office with respect to contracts whose value is equal to or higher than: (i) EUR 20,000,000 for construction works; and (ii) EUR 10,000,000 for deliveries and services. A post-inspection report should be delivered within 14 days of receipt of all relevant documents (or 30 days – in case of a particularly complex inspection).

We reiterate all our recommendations for contractors and contracting authorities, related to the current situation, as provided in the previous alert.

We are ready to assist you in evaluating your particular situation. Please feel free to contact us any time by email or telephone.

Sebastian Pietrzyk – Co-Head of Public Procurement
+48 606 406 531
sebastian.pietrzyk@actlegal-bsww.com

Marcelina Daszkiewicz – Co-Head of Public Procurement
+48 665 667 670
marcelina.daszkiewicz@actlegal-bsww.com

The response to the COVID-19 outbreak has infiltrated nearly every aspect of daily life. Polish laws have not been immune to the epidemic’s impact either, with the government recently announcing a draft of the so-called Anti-Crisis Shield designed to amend a number of acts in order to support businesses. Amid the fight against the coronavirus, in the statement of 12 March, the President of the Personal Data Protection Office (UODO) declared that the personal data protection regulations must not stand in the way of the coronavirus response.

Read the article below to learn more about the protection of personal data in the face of the coronavirus epidemic.

GDPR still applies

There is no doubt that data protection should be no barrier to managing the coronavirus spread, however, one must bear in mind that all personal data protection regulations, including GDPR (and administrative fines), still apply, regardless of how difficult and unprecedented the current situation is. The statement issued by UODO’s President was meant as guidance only and it does not change the fact that personal data requirements must still be complied with.

However, there are still no specific regulations for business who worry about the legal processing of personal data in managing issues concerned with the coronavirus.

Are employers allowed to take a worker’s temperature?

There has been growing concern over whether employers are allowed to take the temperature of a worker or a person not employed thereby and, if so, what rules should they follow.

Body temperature data represent data concerning health – one of special categories of person data the processing of which is prohibited, in accordance with Article 9(1) of GDPR. Data concerning health may be processed only in cases specified in Article 9(2) of GDPR.

Without going into theoretical detail, we believe that personal data may be processed in connection with body temperature measurement in the case of both employees and other persons so long as the below rules are followed.

Taking an employee’s temperature

We believe that the legal basis for the measurement of a worker’s temperature is Article 9(2)(b) of GDPR, stating that the processing of the personal data is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law in so far as it is authorized by Union or Member State law or a collective agreement pursuant to Member State law providing for appropriate safeguards for the fundamental rights and the interests of the data subject. The relevant obligation of the employer in the field of employment law is provided for in Article 207 of the Labor Code.

It should also be noted that the draft bill on amending the act on emergency solutions designed to prevent, counteract and combat COVID-19, other infectious diseases and emergency situations caused thereby, and amending selected other acts, dated March 13, 2020, includes
Articles 3a, which provides that:
“in order to counter the spread of COVID-19, the employer has the right to:
1) request an employee to confirm whether or not he/she has recently been to a region affected by COVID-19;
2) request an employee to undergo the necessary medical examinations where there is a reasonable belief that he/she is infected with COVID-19 or has recently been to a region affected by COVID-19; medical examinations represent health care services as defined in Article 9;
3) screen an employee for symptoms of COVID-19 before allowing him/her to work, especially through body temperature measurement;
4) introduce additional workplace sanitary regulations or occupational health and safety regulations;
5) request an employee to go to a regional affected by COVID-19 only when necessary and with the employee’s consent, in accordance with Article 3a.”

The above-quoted provision would be a valuable addition to the Polish labor law as it would settle all the doubts surrounding temperature measurement by employers.

Taking a non-employee’s temperature

In our opinion, employers are allowed to measure the temperature of a person not employed by them on the basis of such person’s explicit and freely-given consent, in accordance with Article 9(2)(a) of GDPR. Written form of the consent is not required.

As far as body temperature measurement is concerned, we see a growing popularity of thermal imaging cameras, which may be used without the need to process personal data.

Whatever the method of processing, you should remember about fulfilling the obligations in the field of personal data processing resulting from GDPR, especially the obligation to provide relevant information to the person whose data are processed.

In case you have any questions, do not hesitate to contact us.

Marek Wojnar
+48 601 379 610
marek.wojnar@actlegal-bsww.com

Piotr Wojnar
+48 602 660 610
piotr.wojnar@actlegal-bsww.com

Anna Sawaryn
+48 607 920 411
anna.sawaryn@actlegal-bsww.com

Aleksandra Sztajer
+48 731 208 274
aleksandra.sztajer@actlegal-bsww.com