Dear Readers,

We would like to present to you the September edition of the WBW Weremczuk Bobeł & Partners newsletter.

This month's issue features an article concerning planned amendments to the Customer and Competition Protection Act and the new law concerning business activity.

What is more, it describes the opinion of the Head of the Tax Chamber in Katowice, who, in an individual interpretation, stated that the taxpayer who had once lost entitlement to exemption from the obligation of registration of the financial turnover with a cash register, cannot benefit from this exemption even after resuming economic activity.

Further, it discusses the Supreme Court ruling stating that even severe stress is not an attenuating circumstance for being at work under the influence of alcohol.

We wish you a pleasant read,

WBW Team

Upcoming changes in the Customer and Competition Protection Act

On September 4, 2015, the Polish Senate adopted, without amendments, an Act introducing amendments to the Customer and Competition Protection Act. The Act is awaiting the president's signature. Taking into consideration that the amendments of the Act will certainly come into force, the main changes in this regard deserve some attention. 

The amending Act introduces a new model of contract template control. So far, contract terms could be declared unallowable by the Court of Competition and Consumer Protection (SOKiK). After the amendment, the decision in this regard will be made by the president of the Office of Competition and Consumer Protection (UOKiK). The proceeding will be initiated by the Office or by consumers, consumer ombudsmen, Polish Insurance Ombudsman as well as consumer organisations that will have the status of notifier. Final decisions of the UOKiK president, declaring contract terms unallowable will only have effect on the entrepreneur that used them and on all consumers that have entered into contract with the entrepreneur, based on the template indicated in the decision. The business owner will have right to appeal against the decision to the Court of Competition and Consumer Protection (SOKiK). What is more, to increase efficiency of abusive clause elimination, the president of UOKiK will be able to impose financial penalties of 10% of the financial turnover, while entrepreneurs might avoid penalty if they commit to change their practices.

The amendment also introduces a possibility for the president of UOKiK to issue the so-called provisional decisions in proceedings where collective interests of consumers were affected. The essence of these decisions is that, even in the course of proceedings, the UOKiK president will be able to oblige the entrepreneur to discontinue certain activities. When issuing a provisional decision, the president will have to specify its duration, however this period cannot extend after the moment of pronouncing the final decision. The entrepreneur will have right to appeal against a provisional decision to SOKiK but this will not suspend its enforcement. The appeal will be assessed in an accelerated procedure: the UOKiK president should transfer it to the SOKiK within 10 days and the latter institution should assess it within 2 months form the transfer date.

Another change is enabling UOKiK officers to make the so-called controlled purchase. The officers will be able to make all necessary arrangements towards a purchase, without presenting their license (these actions can be recorded through image or sound recording devices). This instrument aims at enabling the officers to control information obtained during the precontractual period. What is important, however, is that undertaking this type of action requires the authorisation of SOKiK issued upon the application of the UOKiK president.

Among other modifications, it is worth noting that of the range of practices that infringe collective consumer interests has been broadened, e.g. offering by financial products that do not meet customers' needs.

 

The Act will come into force after 6 months of its announcement.

Olaf Szczurowski, lawyer

New business activity law

The first reading of a new Business Activity Act prepared by the Ministry of Economy took place on September 10, 2015. Its main objectives are: clarifying  the procedures for establishment and pursuit of business activity as well as  strengthening the rights and guarantees of entrepreneurs in order to implement the constitutional principle of economic freedom.

The Act aims to be a charter of fundamental rights of entrepreneurs, in particular the rights of entrepreneurs in relations with the public administration.  It will also feature a catalogue of fundamental rights of entrepreneurs and business law principles (e.g. the principle of favourable interpretation, the principle of legitimate expectations, the presumption of integrity of a business owner). This document is intended to be an underlying act for business activity in the Republic of Poland.

Another objective of the Act is to introduce new institutions for improving the dialogue between entrepreneurs and the state administration. This includes informing entrepreneurs of non-conformity with the requirements for a positive decision (before the decision on proceedings initiated upon application is issued, an institution should determine non-conformity with certain requirements that could provide ground for a negative decision so that when these conditions are met, the decision could be positive) as well as mediation. The project also introduces solutions to facilitate proceedings before administrative authorities.

Therefore, the adoption of the Act could result in changes of the Code of Administrative Procedure concerning regulations on the economic activity law.

In general, the expected amendments meet with the approval of Polish entrepreneurs.

 

Marta Szurek, lawyer

 

Returning to business will not bring back exemption from the obligation of having certified cash registers

According to the clarifications of the Tax Chamber in Katowice, presented in the interpretation from September 7, 2015 no. IBPP3/4512-481/15/JP, a person who restarts their business activity cannot take advantage of the exemption from the obligation to record sales with a cash register if they had lost the right to this preference before,

The applicant was engaged in a business activity of clothing sales until the end of February 2013. In 2012, the turnover from sales to natural persons exceeded PLN 20, 000, therefore, if the company was not liquidated, from March 1, it would be subject to the obligation of recording sales with a cash register. However, owing to the liquidation, the cash register was not installed. In the present case, the applicant was going to restore the company in 2015, within the same scope of activity. Thus, a doubt arose, if the entrepreneur needed to have a cash register from the first sale to a natural person.

The applicant claimed that he did not need to record sales with a cash register from the first sale to a natural person because he had not registered the turnover with a cash register before. According to the applicant, only after the limit of financial turnover of PLN 20,000 is exceeded in proportion to the period of activity in a given fiscal year, the obligation of registration with the cash register will occur.

The head of the Tax Chamber in Katowice decided that the applicant's position was incorrect. He referred to the Decree of the Ministry of Finance of 29 February 2012 regarding the obligation to keep an up-to-date record of sales with the use of cash registers   (Journal of Laws of 2012, item. 1382) that was in force in the period of 2013-2014. According to clause 5, paragraph 1 of this regulation, the exemption from the registration obligation is repealed with effect from two months after the month when the taxpayer exceeded the PLN 20,000 turnover of sales to individuals who do not pursue any economic activities and to flat-rate farmers. What is more, in compliance with clause 7, paragraph 3 of the regulation, in case of the taxpayers who:

  1. have not ceased to fulfil the conditions for exemption from the registration obligation before the date of entry into force of this regulation 

and

  1. were not exempt from the registration obligation on the basis of clauses 2 and 3

- the exemption from the registration obligation is repealed with effect as of March 1, 2013.

Therefore, since the Applicant exceeded the turnover limit of PLN 20,000 in 2012, the exemption entitlement was lost on March 3, 2013.

Olaf Szczurowski

Zero tolerance for employees under the influence of alcohol

According to the established long-term line of interpretation presented in both the literature and judicial decisions, conduct by any person consisting in performing professional duties under the influence of alcohol is considered as a sufficient evidence to terminate a contract of employment without notice due to the employee's faul . This mode of termination of a contract of employment, provided for in art. 52 of the Labour Code, is not beneficial to the employee. However, the validity of well-established   decision-making practice of the Supreme Court, started in the year 2000, that interprets  working under the influence of alcohol as a failure to perform the basic duties of the employee,  has never been questioned.

 

For these reasons, the fact of the case that the Supreme Court had to examine this year seems to be immensely interesting. The situation concerned an employee who had a history of cancer and was diagnosed with the risk of recurrence. On the unfortunate day when she was to go for mammographic screening, in order to cope with the stress caused by the perspective of recurrence, she drank a glass of wine fortified with a strong spirit. After the medical examination she appeared at work, where she was asked to undergo sobriety test in the nearby establishment of municipal police. The test indicated the alcohol content in exhaled air of 0.46 per mille. Another element of the case is that the employee had alcohol problems which caused her, after the termination of the employment contract, submitted to a treatment for addiction. What is more, according to the expert report, she achieved considerable success.

After the above-mentioned situation occurred, the employer immediately terminated the employment contract without notice due to the employee's fault, without an individual conversation with the employee. The employee filed an appeal to the court, claiming that her behaviour was justified by the stress of that unfortunate day. Most importantly, the Court of First Instance supported her claim and recognised that the uniqueness of the circumstances implies that the employee's behaviour could be classified as negligent, but not a gross one, and could not be treated as a failure in the basic duties attributable to the employee. The employer, however, filed an appeal and won the case before the Court of Second Instance. Then, the employee submitted an annulment and the case was directed for the assessment of the Supreme Court.

 

The Supreme Court finally decided the case in the verdict of July 9, 2015 (case ref. no. I PK 126/10). The court ruled that, regardless of the stress caused by any risk to the employee or her health, as long as she “could have refrain from drinking alcohol, she was able to predict the consequences of her behaviour and she kept the ability to control her own actions” (which was shown by the expert opinion), every act of alcohol consumption and being under the influence of alcohol was unlawful and culpable gross violation of the basic duties of the employee. This means that the Supreme Court maintains its position in the matter of insobriety among employees: every time an employee becomes intoxicated while having any level of awareness of own actions and its possible consequences, the Supreme Court takes the employers' side, defending their interests as well as the interests of other employees and customers of the entrepreneur, to whom an intoxicated person can constitute a real and severe danger.

 

Rafał Sałata, attorney at law 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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