Dear Readers

We wish to present you the March issue of the newsletter by WBW Weremczuk Bobel & Partners.
We would like to recommend you the articles on planned amendments to labour law (in the scope of compulsory medical examinations of employees) and the act on copyright and related rights.


The remaining articles treat on the decision of the Supreme Court stating that it is inadmissible to make an entry into the register of entrepreneurs of the National Court Register under which a proxy may only act jointly with a member of the management board.


We wish you a pleasant read.

WBW Team

Draft amendment to the Law on Copyright and Related Rights

The Government Legislation Centre is currently working on the draft amendment to the Act of 4 February 1994 on Copyright and Related Rights. As stated in the announcement posted on the website of the Government Legislation Centre, the proposed changes aim to ensure the widest possible access to works and objects of related rights, especially within the so-called permissible use.

The current regulations of the Law on Copyright and Related Rights do not always fully and correctly implement the EU directives, which causes legal uncertainty and sometimes unduly restricts the use of protected content. Moreover, there are no regulations which enable the use of the “orphaned” works and which facilitate the use of works not available in the course of trade.

The changes will rely primarily on optimizing and specifying the rules on the use of works and objects of related rights under the permissible use, introducing the remuneration for library use which has not been previously implemented in Poland, and establishing a policy on using the “orphaned” works which belong to the resources of public institutions, on the basis of  both permissible use and licences. This will allow for digitalization and resource sharing in the situations where it is impossible to find the person authorized to transfer the licence. 

In addition, public institutions will be allowed to use the works which are not available in the course of trade. This will provide access to the works which are out of print and in the situations where the person entitled to a given work is no longer interested in the further exploitation thereof.  The publishers and producers of the copies of the work will also be no longer obliged to make payments to the Fund for the Promotion of Creative Activity, which will facilitate the publication of the works which are not protected by proprietary copyrights.

As a result of the changes, the use of works and objects of related rights by both citizens and public institutions, shall be facilitated. The legislature also plans to eliminate legal uncertainty in this respect and to ensure full compliance of this use with the EU law. The planned date of the draft adoption by the Council of Ministers is the first quarter of 2015.
 
Kamil Kłopocki, lawyer

Is it possible to enter an ‘irregular’ form of joint commercial representation into the National Court Register?

Under Polish law, joint commercial representation is currently regulated in the art. 1091-9 of the Civil Code. These provisions have been added to the Civil Code by means of the so-called "Valentine's amendment" of 14 February 2003. Under this amendment, the provisions on joint commercial representation contained in the regulation of the President of the Republic of Poland of 27 June 1934 - Commercial Code ceased to be effective.

What seems to be problematic is the mandatory provisions of the law is the art. 1094 §1 which states that "the proxy may be granted to several persons jointly (joint authorization) or individually." By 30 January 2015, in the judicial decisions of the Polish courts there have been discrepancies in the interpretation of this article.
Judicial decisions of the courts have differed in terms of interpretation of the so called irregular form of joint commercial representation, as well as admissibility of making an entry thereof into the National Court Register. Some courts have expressed consent to the entry establishing an irregular form of joint commercial representation, which read: "joint commercial representation with a member of the management board", while others refused to make such an entry.

The Supreme Court resolved this problem in 2001, in the decision no. III CZP 6/01 which allowed for the establishment of joint commercial representation with a member of the management board. In the grounds, the Supreme Court stated that i.a. the provisions on joint commercial representation should apply to the provisions on an irregular form of joint commercial representation, by analogy. 

In the grounds of the decision, the Supreme Court also relied on the issues of practicality and the security of the company, indicating that the appointment of  a spontaneous joint commercial representation may result in the entrepreneur being harmed by the negative effects of the acts of a proxy, while an irregular form of a joint commercial representation makes it easier to take action, e.g. in the case of illness of one of the members of a management board consisting of two persons.

The decision of the Supreme Court from 2001 met with a strong reaction of the legal community, both positive and negative. The opponents of the decision argued that there is no legal basis for an irregular form of joint commercial representation, and the provisions on a joint commercial representation should not be construed broadly. Moreover, it was argued that an irregular form of joint commercial representation undermines the concept of joint commercial representation, as a proxy shall act in place of the management board, not with the management board.

The Supreme Court of seven judges resolved this problematic issue differently than the Supreme Court in 2001, and passed a resolution of 30 January 2015 (III CZP 34/14) which stated that “entering one commercial proxy to the register of entrepreneurs of the National Court Register with a proviso that he can act only jointly with a member of the management board is inadmissible".
 
Magdalena Uba, lawyer

Draft amendment to Tax Ordinance

The works on the presidential amendment to the Tax Ordinance are currently under progress. On 19 February, the bill was referred to the standing subcommittee for monitoring the tax system. This committee had already received a draft amendment of the Tax Ordinance created by the senators, which to some extend has also been taken into account in the presidential bill.   
What changes does the presidential bill provide for?

The amendment aims at improving the currently binding regulations as well as adopting new solutions. The most important novelty is the introduction of the in dubio pro tributario rule into the Polish tax system. Many experts regard this rule as a cornerstone of every civilised tax system. It is also in line with the jurisprudence of the Constitutional Tribunal. The very essence of the in dubio pro tributario rule is the fact that in case of unresolvable doubts arising from tax regulations should be settled to the taxpayer’s benefit. From the practical point of view, this means that the risk posed by unclear regulations, which is usually transferred to the taxpayer, will be decreased. However, one should bear in mind that the said rule will serve only as a general provision, which is applicable only in a situation when there are no contradictory specific provisions (lex specialis derogat legi generali). Therefore, the in dubio pro tributario rule will play a vital role in the Polish tax system only if specific provisions of the amended Ordinance will be in accordance with it.        

The presidential amendment also includes changes in the regulations regarding limitation period for tax liabilities. The currently binding regulations provide for a 5-year limitation period, which can be suspended for various reasons (after the suspension the period keeps it course) or interrupted (after the interruption it starts running from the beginning). Under the bill discussed in this article, the total sum of limitation periods will be restricted to 3 years, which means that the maximum limitation period for tax liabilities will be 8 years.  

Another suggested change regarding the limitation period is the limited possibility to append a tax decision with an order of immediate enforceability. It applies to situations when the limitation period is to lapse within 3 months. The justification states that it is supposed to put an end to tardiness of tax authorities which are not able to complete a case within a proper time frame.    

The bill also provides for abolishing onerous obligations which burden business owners. The amendment introduces the possibility to conduct the inspection of accounting books in the place where they are kept. In practice, this means that business owners will no longer be obliged to deliver their accounting documents to their official seat or to the seat of the tax authorities. 
 
Paulina Szymańska, lawyer

Changing an employer does not always require new medical examinations

On 1 April 2015, the amendments to the Labour Code will be introduced. The new regulation amends the provisions of article 229 of the Polish Labour Code by means of adding §4a, which specifies that initial and periodical examination and checks are conducted on the basis of a referral issued by the employer, and changing the technical contents of the statutory delegation for the Minister responsible for health matters in the scope of requirements for doctors who are eligible to conduct medical examinations of employees. Nevertheless, the amendment introduces the following §11:   

„The following persons shall not be subject to initial medical examinations:
1) persons re-employed by the same employer in the same position or in a position characterised by the same working conditions within 30 days following the termination or expiry of the pervious employment relationship with this employer; 
2) persons employed by a different employer in a given position within 30 days following the termination or expiry of the previous employment relationship, if they provide their employer with a medical certificate stating that there are no contraindications to work in the working conditions described in the referral for medical examination and the employer states that such conditions are equivalent to the conditions of a given position, excluding persons employed to perform particularly dangerous activities.”  

It is easy to see that point 1) of the above-mentioned paragraph is nothing new. It only codified the already applicable norm in § 1 of the Labour Code and it does not require any further comment. A novelty, however, is the contents of point 2), under which persons who start work in a new workplace which is the same or similar to the pervious one will no longer need to undergo medical examinations, if they possess a valid medical certificate on the lack of contraindications to work. Furthermore, under a new regulation, it is the employer who decides whether the work conditions are similar to the rok conditions in the employee’s previous workplace.    

Of course, this change is definitely not revolutionary but we do regard it to be very positive. In practice, it means that, in many cases, it will no longer be required to fulfil an unnecessary, strictly technical obligation to undergo a medical examination in case of each new employee. This should save employees, employers and doctors their precious time.    
 
The exception made with regard to persons employed with the aim to perform particularly dangerous activities is understandable from the point of view of employee’s best interest and it does not influence the general meaning or interpretation of the amendment in question.
 
Rafał Sałata
Legal trainee
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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