Dear Readers

We wish to present you the December issue of the newsletter by WBW Weremczuk Bobeł & Partners.

First of all, we focus on the amendments to the bankruptcy and rehabilitation law and the new restructuring law to come into effect as of 1 January 2016. Our article provides a general overview of the statutory restructuring of the debtor’s business and adjudicating a ban to conduct business activity in case of failure to submit a petition for bankruptcy within the statutory deadline.

Furthermore, we present you the information on the revolutionary changes in the scope of issuing sick leave certificates which is going to take place at the beginning of the New Year.    

We also recommend you the article regarding the verdict of the Supreme Court on admitting discounts and cash bonuses to retail chains by their suppliers.

At the same time, we would like to take the opportunity to wish you all the best in the New Year.

We wish you a pleasant reading.

WBW Team

A ban on conducting business activity under amended bankruptcy law

At the beginning of 2016, new rules on adjudicating a ban on conducting business activity will be introduced. It is a result of the implementation of the amendments to the bankruptcy and rehabilitation law and the new restructuring law.

 

Under the new regulations, the persons obliged to file a petition for bankruptcy of a company will also be, along with members of the management board of the company, commercial proxies. The amended article 21 section 2 states that in case of companies and partnerships with legal capacity the obligation to file a petition for bankruptcy will lie with “any person who, under law, articles of association or statutes, has the right to manage the affairs of the debtor and represent it individually or jointly with other people.” This means that as of now also commercial proxies will need to monitor the financial situation and debts of the company. 

One of the consequences of failure to file a petition for bankruptcy within the statutory deadline will be the possibility for the court to adjudicate a ban for a given person (for the period from 1 up to 10 years) on conducting business activity individually or within a civil law partnership as well as holding the position of a member of the supervisory board, a member of the audit committee, representative or proxy to a person conducting business activity with regard to such business activity, a commercial company, a state-owned company, a cooperative, a foundation or an association. 

Marta Szurek, lawyer

New restructuring law to come into effect in 1 January 2016

On 1 January 2016, the new restructuring law is to come into effect. The main objective of the new regulation is to introduce effective instruments for conducting a restructuring process of a debtor’s business and preventing its liquidation. The lawmakers assumed that maintaining the debtor’s business is in many cases much more beneficial for the creditors than its liquidation. Maintaining the debtor’s business also translates into maintaining workplaces and, in general, the possibility to perform contracts in an undisturbed manner and, therefore, it has positive impact both from social and economic point of view.   

In order to achieve these objectives, the new restructuring law introduces four types of restructuring procedure:  proceeding to approve an arrangement, accelerated restructuring proceeding, arrangement proceeding and reconstruction proceeding.   

A characteristic feature of the proceeding to approve an arrangement is the adoption of the arrangement by creditors where the debtor himself collects the creditors’ signatures. Then the court issued a decision on the approval of the arrangement. What is important, this type of procedure is also available for entrepreneurs who have not become insolvent under a legal definition. It is enough that there is a justified concern that they will indeed become insolvent soon.     

The accelerated arrangement proceeding makes it possible for the debtor to conclude an arrangement upon drawing up and accepting a list of debts at the meeting of creditors convened by the restructuring court.

The arrangement proceeding, on the other hand, is for those business entities which do not meet the Requirements to institute any of the previous two types of proceeding. In general, it is similar to the current bankruptcy proceeding open to arrangement.   

The fourth type of proceeding, the reconstruction proceeding, is the last resort for business entities in most difficult financial situation who, for valid reasons, should not be liquidated.     

The competent court for restructuring proceeding will be the district court having its jurisdiction over the debtor’s principal place of business. 

The new regulation provides for changes in the bankruptcy and restructuring law. In particular, it introduces a new definition of insolvency into the restructuring law.  Another important change is the introduction of the new rules regarding the dismissal of a bankruptcy petition due to insufficient bankruptcy estate. Dismissing such a petition will be possible if the costs of the bankruptcy proceeding completely or significantly exceed the value of the bankrupt’s assets.       

Under the said regulation, the lawmakers are to establish the Central Register of Restructuring and Bankruptcy. The register will make it possible to search for pending bankruptcy proceedings, as well as a database of form and application specimens required in the course of a restructuring proceeding. However, we still need to wait for this facility as the provisions regarding the Central Register of Restructuring and Bankruptcy are supposed to come into effect on 1 February 2018    

Paulina Szymańska, lawyer

  

Simplifying the system of sick leave certificates

On 1 January 2016, the most of the provisions of the act of 15 May 2015 on amending the act on benefits from the social insurance in case of illness and maternity and certain other acts come into effect. According to the changes to be implemented, doctors authorised to issue sick leave certificates (the co-called L-4 certificates) will be issuing them in an electronic form (e-ZLA). Electronic sick leave certificates will be circulated among the doctor, the employer and the social security institution as part of the Electronic Service Platform (PUE) of the Social Security Institution (ZUS), provided that the doctor and the employer have their profiles on the above-mentioned platform.

 

The system will enable the doctor to access the data on the patent (the insured), his or her employers (contribution remitters) and his or her family members (in case the certificate is issued with the aim to take care of a family member during illness). Upon entering the patients identification number (PESEL), the remaining particulars will be automatically filled out by the system. Furthermore, the system will verify the date of the beginning of the period of unfitness to work in accordance with the rules of issuing sick leave certificates provided for in legal regulations and the last certificate issued. The system will also provide a possibility to view medical certificates previously issued for a given patient, including the results of a control by certifying physician appointed by ZUS. The e-ZLA certificate issued by the doctor will be automatically transferred to ZUS. If a doctor decides to select the electronic form of issuing sick leave certificates, he or she will no longer have to deliver certificates to ZUS and store their copies.    

 

A very important thing from the point of view of employers is that they will immediately receive (via PUE) the information on the fact of issuing an e-ZLA certificate for an employee as well as the full contents of the certificate itself. The PUE platform will include a special space to be used for storing and showing the contents of sick leave certificates. Furthermore, the employer will be able to apply to ZUS, directly via their PUE profile, for an inspection as to the correctness of issuing the sick leave certificate. If the doctor issues an e-ZLA certificate, the patient will no longer need to provide the hard copy of the certificate to his or her employer or directly to ZUS (in case of sole proprietors) as such certificates will be automatically sent and provided to relevant entities.       

 

It is worth noting the fact that until the end of 207 it will still be possible for doctors to issue sick leave certificates in the currently applicable form. In such case the doctor will be obliged to inform the patient on the necessity to hand over the sick live certificate to the employer (in case of employees) or ZUS (e.g. in case of sole proprietors) within 7 days of receiving it. In a situation when the patient’s employer does not have a PUE profile and it will not be possible to send them the e-ZLA certificate, the doctor will need to hand over the printout of the certificate to the patient and the patient will have to provide it to his or her employer. The system will provide the doctor with the information regarding the remitter’s status and this way he or she will know whether it is necessary to print out the e-ZLA.      

 

At the same time, we wish to remind you that a contribution remitter employing more than 5 employees is under an obligation to set up a profile on PUE by the end of 2015. Before the new regulation comes into effect, employers who do not possess such a profile will be required to inform (in writing) their insured employees about the obligation to provide the employer with e-ZLA printouts as of 1 January 2016.     

Rafal Sałata, attorney at law trainee

Resolution of the Supreme Court on permissibility of discounts and cash bonuses

 

The issue of permissibility of granting cash bonuses and discounts to retail chains by suppliers has been an object of dispute for several years. 

At the beginning, the judicial practice followed the view started with the verdict of the Supreme Court of 12 June 2008 (III CSK 23/08) according to which any discounts or cash bonuses granted by suppliers to retail chains were forbidden. This stance was based on article 15 section 1 point 4 of the act on combating unfair competition which stated that an act of unfair competition is any action hindering access to market to other business entities, in particular by demanding any charges other than trade margin in exchange for receipt of goods for sale. Provided that both parties of an agreement derive income from mutual business relations, which is proportional to the value of sales, charging only one party with the obligation to grant a premium or discount to the other party should be categorised as an action preventing access to the market. Therefore, demanding charges which are not justified from the point of view of competition mechanisms could lead to the infringement of the economic interest of the supplier.      

The judicial practice described above was changed by the verdict of the Supreme Court of 20 February 2014 (I CSK 236/13) in which the Supreme Court stated that article 15 section 1 point 4 of the act on combating unfair competition did not forbid suppliers to grant discounts and cash bonuses to retail chains. In the said decision the court stated that the business practice shaped the rules of offering goods under more favourable terms if a transaction is of greater volume. Therefore, as a rule, selling a greater number of goods for a lower price does not violate the rules of competition.   

From the date of the above-mentioned verdict, the judicial practice in this matter has diverged. Therefore, it was necessary for the Supreme Court to adopt a resolution which would settle the matters described in this article.

On 18 November 2015, the Supreme Court looked into the following question of law posed by the Court of Appeal in Katowice:

Does a post-sales discount paid out to the buyer by the seller in case of achieving a certain sales volume agreed by the parties constitute a charge other that the trade margin provided for in article 15 section 1 point 4 of the act on combating unfair competition?   

Under a resolution adopted by 3 judges in the case no. III CZP 73/15, the Supreme Court pointed out that in business relations between the purchaser operating a retail chain and a supplier it is admissible, under certain conditions, to accept a cash bonus provided for in the agreement which depends on the sales volume as a post sales discount. In this case, such bonus will not be regarded as an illegal charge for accepting goods for sale (i.e. an act of unfair competition referred to in article 15 section 1 point 4 of the act on combating unfair competition).   

This means that a post-sale discount paid to suppliers may but does not necessarily have to be regarded as a charge other than the trade margin paid in exchange for receipt of goods for sale. The court each time needs to examine the agreement between the parties and decide whether the act of unfair competition did in fact take place.

Olaf Szczurowski, 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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