NEWSLETTER - October 2013 www.wbwlegal.pl

Dear Readers,

We would like to share the October issue of the newsletter by Weremczuk Bobeł & Partners.

First of all, we recommend the article on planned changes to the procedure of registering partnerships and companies, thanks to which taxpayers will be allowed to conduct more activities online. In another article, we present amendments to the regulations on recording sales with a cash register.

In addition to that, we offer an analysis of the judgment issued by the European Court of Human Rights on the possibility of making website owners liable to payment of damages for libelous comments posted by third-party users on their websites.

We also discuss an interesting judgment delivered by the Supreme Court on the unlawfulness of the resolution which excludes the former shareholder of the partnership from profit sharing.

We wish you a pleasant read.

Team of the Law Firm


Planned amendments to the laws governing partnerships and companies, including significant changes to the registration procedure and an increase in the number of activities which can be conducted online

The Ministry of Justice has been working on amendments to the Code of Commercial Partnerships and Companies and several other acts. The reforms are supposed to streamline the procedure of the online registration of partnerships and companies and to increase the number of activities which can be conducted over the Internet.

As we informed in one of our previous newsletters, those who wish to establish a limited-liability company can, since 2012, enter into articles of association online and file for entry in the National Court Register over the Internet.

This procedure of establishing limited-liability companies is very popular because it is faster than the traditional procedure involving paper forms: the law instructs the registration court to examine the registration application within one day. The online procedure is also cheaper because one can save on notarial fees. According to the statistics from the end of 2012, almost one in every three limited-liability companies established in 2012 was the so-called e-company (source: www.lex.pl).

The Ministry of Justice is now planning to allow the online registration of general partnerships and limited partnerships.
In addition to the option of being registered online, limited-liability companies, general partnerships and limited partnerships are to be given the opportunity to conduct other activities online, namely to notify about changes to their entries in the National Court Register and to apply for deletion of those entries.

Furthermore, there are plans to reduce the fees for filing the National Court Register applications online. For example, the current court fee related to the online application for entry in the National Court Register amounts to PLN 500 and, after the reforms, it is supposed to amount to PLN 250.

The reforms are also to streamline the process of fulfilling tax obligations which arise from entering into a partnership agreement or articles of association over the Internet (as they do from entering into such agreements in the traditional manner). Taxpayers who will send online applications for registration of a partnership or company in the National Court Register will be allowed to declare and pay the tax on civil law transactions which is to be paid on entering into a partnership agreement or articles of association. At the moment, the payment of the tax is not always possible in the process of registering a limited-liability company online. The reason is the requirement (fortunately, not unconditional) for a newly registered company to present the Tax Identification Number (NIP) in order to declare and pay the tax. It is often the case that the Tax Identification Number is issued only after the deadline for the payment of the tax, which is 14 days from the day of entering into articles of association.

This is not the end to the changes which are to be implemented. The Ministry is planning not only to allow partnerships and companies to be formed online and to fulfill their obligations related to the National Court Register over the Internet. Partnerships and companies will be also given the opportunity to conduct other activities online: to amend partnership agreements and articles of association as well as to pass resolutions of shareholders on other matters, e.g. on the dissolution of the partnership or company or the appointment of the agent who will represent the company in the contract with a member of the board.

The plans outlined above have been included in the preliminary principles of the bill amending the Code of Commercial Partnerships and Companies and some other acts. The principles have been drawn up by the Ministry of Justice and can be found at the website of the Government Center of Legislation at: http://legislacja.gov.pl/lista/1/projekt/170130/katalog/170137.

It is estimated that the amendments will enter into force on 1st January 2015.

Nastazja Lisek, legal advisor trainee


New obligations related to the use of cash registers by taxpayers

On 1st October 2013, the new ordinance of the Minister of Finances from 14th March 2013 on cash registers came into force. The ordinance includes, among others, regulations on registering sales with cash registers.

The ordinance introduces numerous provisions which define technical conditions to be met by cash registers. It also regulates the structure of cash register receipts. As a result of the changes implemented through the ordinance, a cash register receipt has to include: the buyer’s tax identification number (at the buyer's request), the indication of the value of discounts or additional charges (if they are included), the name of the product or service which allows its unambiguous identification, the “cash register receipt” label on the document. In the past, the document had to include the name of the product or service and, optionally, its deion.

There were doubts about the proper interpretation of the new regulations and, therefore, the Minister of Finances published a statement clarifying the ordinance. In this statement, issued on 9th August 2013, it was clarified that taxpayers who conduct business activities should label their products and services in such a way so that the name assigned to a particular product or service would match it and could be associated with an appropriate tax rate. According to the Minister of Finances, the requirement to label products or services in a manner which allows their unambiguous identification excludes the possibility of using names which describe groups of products. For example, the taxpayer cannot use the label “baker's goods” because it characterizes a group of products. Instead, the taxpayer is expected to program names of particular products on the cash register, e.g. to program the names such as bread, roll or baguette. Abbreviations of names have to be clear to the buyer and precise enough so that they could be linked to relevant products or services without any doubt.

The ordinance repealed the strict regulations which used to define cash register receipts in terms of the width of a receipt tape, the number of characters in one line or the font size. These regulations have been replaced with a general provision which requires the receipt to be legible and to allow the buyer to check if the transaction has been conducted properly. It is also worth adding that the ordinance lifted the requirement for receipts to be printed solely in the Polish language.

Marcelina Slapa, lawyer


Website owners cannot feel above the law

On 10th October 2013, the European Court of Human Rights (ECHR) issued a judgment in Delfi AS v. Estonia (no. 64569/09), which is a groundbreaking ruling on the possibility of holding the website owner liable to payment of compensation for third-party comments posted on their website. Delfi AS (the owner of one of the leading news websites in Estonia) was obliged by an Estonian court to pay compensation to the entity which had been defamed in comments which appeared on the news portal owned by Delfi AS. Delfi AS did not agree with the decision of the Estonian court and complained about it to the ECHR, claiming that the decision violated the right to freedom of expression, i.e. article 10 of the European Convention of Human Rights.

According to the current Polish law, the person held liable for violation of personal interests is the violator, e.g. the author of a defamatory comment. Unfortunately, as the number of offensive comments on the Internet has been growing, it became necessary to tackle the question of whether or not it is really possible to hold authors of such comments liable to damages. People who write comments on message boards often use nicknames and, therefore, it is difficult and sometimes even impossible to establish their real personal details. If the personal details are unknown, the violator cannot be sued.

The solution to this stalemate was brought by the judgment issued by the ECHR. In this judgment, the Court decided that it is possible to hold the website owner liable in place of the author of the comment themselves on condition that two issues are taken into consideration: one is the context of the comment and the other is the measures taken by the website owner to prevent the publication of offensive comments (e.g. in the form of a warning about criminal responsibility for libel). Furthermore, the ECHR pointed that it is practical to allow the aggrieved party to claim damages from the website owner instead of the anonymous author of the comment.

It can be expected that the arguments presented in the judgment will become grounds on which those who have been aggrieved by defamatory online comments will be able to pursue their claims effectively in Polish courts.

Daria Pawelczak, trainee solicitor


The shareholder who withdrew from the partnership has the right to the share of profits which were generated while the shareholder still had shares in the partnership

This position was taken by the Supreme Court in the judgment issued on 11th October 2013 (case file number: I CSK 753/12).

Facts of the case which were grounds for issuing the judgment in question were as follows:
The shareholder withdrew from the partnership in December 2010. The remaining shareholders passed a resolution under which the former shareholder was excluded from the profits for 2010. The former shareholder objected to this resolution, referring to article 65.5 of the Code of Commercial Partnerships and Companies. According to this provision, the shareholder who withdraws from the partnership shares profits and losses generated by the matters which are not settled yet but has no right to influence the way those matters are managed. The court of first instance dismissed the claim for invalidation of the resolution but the court of the second instance accepted the claim. As a result, the partnership appealed against the judgment of the court of second instance to the court of cassation.

The Supreme Court dismissed the appeal in cassation and confirmed that the resolution excluding the former shareholder from profit sharing is against the law. However, the legal grounds for this judgment were different from those indicated by the claimant. In the grounds for its judgment, the Supreme Court referred to art 51.1 of the Code of Commercial Partnerships and Companies, according to which each shareholder has the right to an equal share in profits and losses irrespective of the type and value of their contribution. It is worth noting, however, that this provision is of optional nature, which means that shareholders can include a different provision in the partnership agreement.

The judgment in question clarifies doubts which may arise due to the fact that provisions of the Code of Commercial Partnerships and Companies are sometimes unclear. Furthermore, the judgment will help to prevent the situations in which current shareholders arbitrarily and deliberately exclude the former shareholder from their share of profits.

Jerzy Kozerski, lawyer



This Newsletter is for general informational purposes only. It is not intended and shall not be treated as professional advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.

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