Dear Sirs,

We would like to share the November issue of the newsletter by WBW Weremczuk Bobeł & Partners' law firm.

Firstly, we recommend the article on the information campaign run by the Office of Competition and Consumer Protection in connection with amendments to the so-called consumer law which enters into force on 25th December 2014.

In another article, we discuss a public consultation of the Small Business Act, which is a law intended to support small and medium-sized enterprises in the European Union. 

We also offer you two articles analyzing judgments issued by the Supreme Court: one related to social insurance contributions of persons who cooperate with entities under management contracts and the other concerning the possibility of dismissing an employee for disciplinary reasons due to their breach of an employer’s business secrets.

We hope you enjoy reading our newsletter.

The Team

New information campaign by the Office of Competition and Consumer Protection

In the previous editions of newsletters by Weremczuk Bobeł & Partners' law firm, we noted that the new law on consumer protection in business transactions enters into force on 25th December 2014. The law is of great interest to both consumers and entrepreneurs who offer them goods because amendments to the current legislation are far-reaching. They affect, among others, the time period during which a product purchased online can be returned by extending it from 10 to 14 days. They also give the seller the right to hold off with the refund until they receive the returned product or a proof that such a product has been dispatched.
What deserves a word of praise is a new website launched by the Office of Competition and Consumer Protection: www.prawakonsumenta.uokik.gov.pl. The website offers information on the new law which should be known to entrepreneurs who sell goods to consumers in any manner, particularly through online shops.

The website gives access not only to a full text of the new law but also to a comprehensive dictionary of terms related to consumer protection law, which, without any doubt, can help entrepreneurs to understand the law and their obligations towards consumers. In addition to that, the website includes information about all important consumer rights, such as the right to file a complaint due to product defects. Entrepreneurs are provided with explanations as well as examples of proper ways in which they can meet their obligations towards consumers with whom they have legal relationships. The website also offers information on types of contracts which are not covered by consumer protection law.

On the website, there is quite a large collection of sample letters which can be downloaded and used in legal relationships between consumers and entrepreneurs.
The website is part of a large information campaign, which involves distribution of leaflets and various publications on protection of consumer rights in business transactions. The publication which is especially worth reading is “Przepisy konsumenckie dla przedsiębiorców” (“Consumer law for entrepreneurs”) by Krzysztof Lehmann. This guidebook is available only in Polish and can downloaded for free from the website of the Office of Competition and Consumer Protection: www.uokik.gov.pl.


Rafał Sałata, lawyer

Public consultation of the Small Business Act

On 8th September 2014, the European Commission launched a public consultation of the Small Business Act (SBA) for the period 2015-2020. The aim is to upgrade the European policy which is intended to support small and medium-sized enterprises (SMEs) in the European Union. The SME sector has been given a strong support through initiatives taken by European institutions (including the Commission and the Parliament) since 2000 when the Lisbon Strategy (LS) was devised to stimulate economic growth and increase employment. The measures which have been already proposed during the current public consultation include, among others, improvement of conditions for establishing new businesses so that it would be possible to set them up at a maximum cost of EUR 100 and within 3 days as well as reduction of administrative burdens and improvement of access to finance. Those measures would involve:


1) adopting a new EU regulation on regulatory simplification which would require that the procedure of setting up a new business take no more than 3 days and cost a maximum of EUR 100. This regulation would also reduce the time needed for obtaining required licenses to one month, introduce the requirement to apply the “SME Test” or an equivalent system in all EU countries and reduce the time limit for remitting and paying off debts to a maximum of 3 years since the declaration of bankruptcy;


2) encouraging EU countries to simplify tax procedures for new companies in their start-up phase to reduce administrative burdens and help them develop faster;


3) developing alternative sources of finance in cooperation with the European Investment Bank.


At the moment, the European Commission is collecting ideas of solutions which could be introduced into the EU law in the period 2015-2020. Entrepreneurs, representatives of local and central authorities as well as natural persons who plan to establish their first businesses and have ideas for streamlining the process of setting up SMEs, helping SMEs to perform better and increasing employment, can submit their proposals through an online survey available on the website of the European Commission.
Proposals can be submitted until 15th December 2014.
The survey can be found at:


http://ec.europa.eu/eusurvey/runner/NewSBAsurvey2014?surveylanguage=EN


Kamil Kłopocki, lawyer

Disclosure of business secrets as grounds for dismissing an employee for disciplinary reasons

The Supreme Court decided in the judgment of 11th September 2014 (case file number II PK 49/14) that a breach of a business secret gives grounds for dismissing an employee for disciplinary reasons.
In the case in question, a woman employed at a company producing packaging for the cosmetics industry (referred to as the “Employee”) had access to business secrets of that company (referred to as the “Company”) while performing her professional duties. When the Employee was on sick leave, the Employee’s supervisor used her company computer and noticed that a number of emails had been sent from the Employee’s company email account to her private email account, which was explicitly forbidden by the employee handbook.
The Company terminated the employment contract without notice due to the employee’s fault. In the grounds for that decision, the Company pointed that the Employee was guilty of a serious breach of the employee’s basic obligations because a number of emails had been sent from her company email account to her private email account. Those emails included important information which were related to operations of the Company, constituted its business secret and were covered by professional secrecy.
The Employee brought an action against the Company and won in the court of first instance. The court of second instance sided with the Company and dismissed the action. The Supreme Court, on the other hand, dismissed the Employee’s appeal against the sentence imposed by the court of second instance. In the grounds for the judgment, the Court stated that the employee is forbidden to disclose information which, once disclosed, could damage the employer’s interests and is obliged to maintain confidentiality in accordance with special rules and regulations. According to the employee handbook, information covered by professional secrecy included information related to the Company’s operations, such as lists of current and potential clients of the Company. Through that handbook, the Company sufficiently clarified its rules and regulations so the Employee must have been aware that information from her emails, including lists of current and potential clients of the Company, was a business secret and was covered by professional secrecy.
Taking that into consideration, the Supreme Court stated that what was most likely was that the Employee was “siphoning” the Company’s confidential documents and using them for her own purposes, which was contrary to the employee’s basic obligation to care about the company’s interests and protect its assets. This is why it was right to classify the Employee’s actions as a culpable and serious breach of the employee’s basic duties which justified termination of the employment contract.


Marek Ben, lawyer

Manegement contracts and payment of social insurance contributions

A management contract is a form of employing high-level executives which is used more and more often instead of employment agreements. In principle, the subject matter of such a contract is representation of the company, management of its current issues and supervision of the overall performance of the company. A management contract is made between the principal and the manager who can act as a natural person or as an entrepreneur who conducts business activity. In the latter case, i.e. when the manager acts as an entrepreneur, there used to be doubts about payment of social insurance contributions. It was not clear if contributions should be paid by the company as a principal or by the manager as an entity conducting business activity. This uncertainty was clarified by the Supreme Court in its judgment of 12th November 2014 (case file number I UK 126/14).
In the case in question, there were four people in the company’s management board who performed their duties under management contracts. Each of those people conducted business activity related to management. The company planned to classify the managers as contractors and pay social insurance contributions on their behalf, pursuant to Article 6.1.4 of the Act on the Social Insurance System. However, such a plan was opposed by the managers who worked under management contracts. The company asked the Social Insurance Institution (Zakład Ubezpieczeń Społecznych, referred to as ZUS) to provide its interpretation of the law concerning the issue. Because the company’s authorities wanted to avoid a conflict with the managers, they suggested to ZUS that the members of the company’s management board should be classified as entrepreneurs conducting business activity and should pay social insurance contributions themselves.
ZUS did not agree with the suggestions put forward by the company’s authorities and provided a different interpretation of the law, which was appealed against by the company. The case was finally settled by the Supreme Court which decided that: “Members of management boards who work under management contracts should be registered in ZUS as contractors irrespective of whether they enter into contracts as natural persons or as entrepreneurs who conduct business activity related to management. Social contributions shall be paid companies which are managers’ principals.” (the Supreme Court judgment of 12th November 2014, case file number I UK 126/14). In the grounds for the judgment, the Supreme Court stated that managers acting as bodies of the company are not fully independent because they have to abide by the company’s resolutions and its articles of association (Article 38 of the Civil Code).
The judgment in question has one more importance consequence. Contributions paid by the manager as an entrepreneur conducting business activity was much lower than contributions which would have been paid if the manager had been classified as a contractor (the rate in such a case amounts to 30% of the manager’s income). As a result of the judgment of 12th November 2014, ZUS has the right to claim missing contributions for the period of the past 5 years.


Paulina Szymańska, 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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