Month: July 2017

act BSWW advised Nielsen in the intragroup merger between its Polish subsidiaries i.e. ACNielsen Polska Sp. z o.o. with its seat in Warsaw and Brandbank (Poland) with its seat in Szczecin.

Marta Kosiedowska was the leading partner responsible for the project and was supported by associate Marlena Suchonos. The Warsaw team was responsible for preparation of the merger’s documentation and finalization of the process.

”Nielsen is our long term client to whom we are providing day-to-day assistance with respect to contractual and corporate matters for several years now. We really appreciate that we were engaged in the process of intragroup merger and hope to provide additional value to Nielsen in other key matters,” said Marta Kosiedowska.

In a much anticipated judgement of 25 January 2017, case file No. C‑367/15, the Court of Justice of the European Union found that the provision of the Polish act on copyright and related rights, whereby a right holder whose economic copyrights were infringed is entitled to request that the infringer pay double the sum which would have been due, if the right holder had given permission for the work to be used is consistent with European law.

The judgement referred to hereinabove is essential from the perspective of law enforcement by economic copyright holders.

By way of a reminder, the judgement was passed in connection with the dispute between Stowarzyszenie Filmowców Polskich (SFP), an organization for collective management of copyright, and Stowarzyszenie “Oławska Telewizja Kablowa” (OTK), broadcasting television programmes by means of a cable network in the town of Oława. The action brought by SFP sought, i.a., to request the payment of lump sum damages equal to three times the appropriate remuneration (Article 79(1)(3)(b) of the Copyright Act).

The Supreme Court examining the appeal on a point of law became doubtful whether or not the above said provision of copyright law, whereby it is possible, at the request of a person whose economic rights of copyright have been infringed, for compensation to consist in payment of a sum of money corresponding to twice or three times the amount of the appropriate fee, is compatible with the European law, to be specific with Article 13 of Directive 2004/48 and, in consequence referred a question to the Court of Justice for a preliminary ruling. The Supreme Court had particular concerns whether the penalty imposed on the infringer provided for in the Polish law is not excessively severe – considering the compensatory nature of damages – and therefore whether it is admissible.

Before the contemplated judgement was passed, the Polish copyright regulations had been examined by the Constitutional Tribunal. As a result of a constitutional appeal, under a widely-discussed judgement of 23 June 2015, case file No. SK 32/14, Article(79)(1)(3)(b) of the Copyright Act was found to be partially unconstitutional in so far as that provision permitted a person whose economic rights of copyright were infringed to claim, in the event of a culpable infringement, payment of a sum corresponding to three times the amount of the appropriate fee. In the opinion of the Constitutional Tribunal, the law maker, in pursuit of the fullest possible protection of economic copyright holders, breached the rule whereby the least severe enforcement measure of those available should be selected. As a result, the provision in question provides for excessively severe penalty and is a too deep an interference into the horizontal relations between entities involved in a dispute for economic rights.

Seen as the Constitutional Tribunal examined only a part of Article 79(1)(3)(b), the provision in question remained in force in so far as it provides for a claim for the payment of lump sum damages, however, equal to two times the due remuneration. On these grounds, Polish courts started to pass judgements awarding to right holders the right to request the payment of such damages, regardless of culpability of the infringer (e.g. judgement of the Court of Appeals in Łódź dated 27 July 2015, case file No. I ACa 110/15).

The judgement of the Court of Justice of the EU was therefore supposed to decide, in the context of the EU law, on the admissibility of applying Polish provisions of law allowing a right holder to request flat rate damages equal to the multiple of (in this case double) a hypothetic due remuneration.

As stated at the outset, the EU court found that the European law is not in conflict with state provisions of law which provide a right holder with an alternative in terms of seeking compensation for damage suffered on general rules and requesting the payment of a sum equal to double the due remuneration which would have been due, had the right holder granted its consent for the use of work.

The CJEU noted that directive 2004/48/WE introduced certain standards of minimum protection of right holders and prohibits the introduction of measures provided for further protection. It follows from the very nature of lump sum damages that the value of damage suffered does not always have to correspond to the value of the awarded damages.

It is worth noting that according to the CJEU the provisions of the above said directives should not be interpreted as a prohibition of introducing a protective measure which would entail a form of a penalty; the Court of Justice had doubts whether Article 79(1)(3)(b) could actually be described as such (this allegation is often raised by the opponents of the construction accepted under the Polish provisions of law).

The CJEU reminded that the payment of a hypothetical license fee could not always compensate a right holder fully for the suffered damage because it may fail to include expenses related to infringement. Our experience shows that the conclusion is accurate. Potential abuses related to such requests should be remedied in individual cases by a court (e.g. a claim that the right holder abused the right).
In the discussed judgement, the Court of Justice took the side of economic copyright holders.

Does it mean the end of controversies around Article 79(1)(3)(b) of the Copyright Act? I do not think so. It should be noted that the Court of Justice of the European Union does not determine whether the provision of question in so far as it grants the right to request double the due remuneration is constitutional. It is safe to assume that sooner or later this question will be referred to the Constitutional Tribunal as well. There is no guarantee it will share the position of the European court.

For now, however, economic copyright infringers will not find peace.

The judgement of the Court of Justice of the EU of 25 January 2017, case file No. C‑367/15, is available at:
http://curia.europa.eu/juris/document/document.jsf?docid=187122&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=PL&cid=540464

BSWW assisted in providing financing to Fedha Sp. z o.o. intended to cover the costs of the offer to subscribe for 100% of shares of Vantage Development S.A.

Vantage Development S.A. is a dynamic developer based in Wrocław, currently running projects also in Warsaw and other cities – the company has been listed on the Warsaw Stock Exchange since 2012.
Fedha Sp. z o.o. is indirectly dependent on Grzegorz Dzik – the main shareholder of Vantage Development S.A. The offer was published by Fedha with the approval of Grzegorz Dzik and its subsidiary Nutit a.s. as well as Józef Biegaj and its subsidiary Trade Bridge Czechy a.s. – the second largest shareholder in the share capital of Vantage Development.

As part of the process, the law firm provided comprehensive legal services to the entity extending the LBO financing, which included preparing debt-related documentation and security-related documentation.
The transaction involved financing of a few dozen million zloty.

Upon the passing of act No. 232 on 11 December 2016 and its entry into force on 1 January 2017, the text of Budget Act 2017 was approved.

The provisions included in sections 148-159 of Budget Act 2017 have the purpose of providing for conductive conditions to attract foreign capital to the Italian market and putting an end to the growing migration of young, educated Italians abroad, making it easier for academics living abroad to go back.

This short article focuses only on the former of the issues – the regulations aiming to encourage foreign capital investments on the Italian market.

Pursuant to the provisions of section 148 of Budget Act 2017, a new subsection 26-bis is added to the consolidated text of the regulations regarding immigration. The subsection is titled “Ingresso e soggiorno per investitori” (“Arrival and residence for investors”) and it simplifies the procedure of issuing visas and residence permits for foreigners who intend to make significant investments in Italy.

In order to obtain this special visa for a term of two years (renewable in certain cases for another 3 years), which visa not without a reason is called an “investor visa” and which allows for entry and residence in Italy for a term of more than 3 months, the applying foreigner should file a set of documents in line with the procedure to be determined under an inter-ministerial regulation. Applications in this procedure will not be subject to restrictions determined in the “regulation on migration” (the purpose of which is to stop the growing immigration of foreigners).

The investor visa will be issued to those foreigners who intend to:
• make an investment of at least EUR 2,000,000 into security papers issued by the Italian government provided that they are not disposed of within 2 years from subscribing for them;
• make an investment of at least EUR 1,000,000 into the equity of a company established and operating in Italy provided that the shares subscribed for will not be disposed of within 2 years from subscribing for them or an investment of at least EUR 500,000 in the case of innovative start-ups entered in a special Italian business register;
• make a donation of at least EUR 1,000,000 for the purpose of supporting a public project in the field of culture, science, management of immigration processes, scientific research, rescuing cultural goods and landscapes.

In accordance with the procedure described in detail by the regulation of the Minister for Economic Development, upon the approval of the Minister of Internal Affairs and the Minister of Foreign Affairs and in accordance with the rules of international cooperation, in order to meet the requirements stipulated in the regulations, a foreigner applying for a visa should submit the documents listed below, issued within 90 days from the entry into force of Budget Act 2017:

 a copy of travel document the validity of which is longer than the validity of the requested visa by at least three months;
 documentation certifying: (i) the availability of the minimum value of investment or donation specified above and ii) the circumstances allowing for the transfer of such sum to Italy;
 a certificate showing that the funds come from a legal source;
 a written statement containing a detailed description of features and recipients of investment or donation.

Apart from the so-called investor visa, another novelty was introduced under section 152 of Budget Act 2017 – a new subsection 24-bis added to the consolidated text of the Income Tax Act (TUIR), The subjection is titled: “Opzione per l’imposta sostitutiva sui redditi prodotti all’estero realizzati da persone fisiche che trasferiscono la propria residenza in Italia” (“Option of an alternative tax on income earned abroad by natural persons who move their place of residence to Italy”).

Those tools are meant to encourage Italian entities and/or foreign non-residents to move their place of residence to Italy.
Should such entities decide to move their tax residence to Italy they may choose to tax their income earned abroad with a flat rate tax of EUR 100,000 per each fiscal period; using this option is possible on the condition that within 10 years before moving the place of residence to Italy the applicant had lived abroad for at least 9 years (meaning he or she were not paying taxes in Italy).
The main features of this option include:
• validity of up to 15 years and may be revoked;
• may be put on hold in the case of neglecting to pay the alternative tax or paying it partially;
• may be extended to one or more family members of the applicant on the condition that they move their place of residence to Italy and within the last 10 years they had not been paying taxes in Italy for at least 9 years (each next family member is required to pay EUR 2,500 annually as the alternative tax);
• the flat-rate alternative tax also concerns income generated as a result of sale of share blocks, starting from the sixth year when this option is available;
• may be used only after obtaining a positive response to the application filed with Agenzia delle entrate (tax office).
Alternative tax should be paid once within the deadline specified with respect to the payment of income tax and is not deductible for the purpose of any other tax or contribution. The methods of application, change or revocation of the option and paying alternative tax should be determined by Agenzia delle entrate under a regulation of the director which should be issued within 90 days from the act’s entry into force.
The effort of the Italian law makers put into attracting the capital and entities to Italy is significant.

It is, however, essential to analyse the texts of the inter-ministerial regulations, which are extremely important for the outlined procedure and which should be passed by the end of March.

On 8 February 2017, Marek Wojnar, attorney-at-law, and Marta Kosiedowska, attorney-at-law, will run a session during the 7th Corporate Legal Counsel Forum titled:
“Corporate requirements versus start-up innovation – contractual conditions related to corporation’s investment in start-up companies”.

The following topics will be discussed during the session:
– investor’s control and supervision mechanisms in a start-up company – why start-ups don’t want to have their hands tied;
– risk versus return on investment – mechanisms for securing an investor in a start-up company;
– know-how, start-up during a due diligence process – legal aspects of investor’s due diligence of a start-up company.

We hope you will enjoy the meeting!

Data validation, organisational structure and changes in the law.

Nowadays, a business success is largely determined by data quality and their efficient management. Financial sector companies are governed by special regulations in respect of collected and processed data. The Polish Financial Supervision Authority (KNF) currently audits banks, while insurance companies, universal pension funds, brokerage houses and investment fund associations had time till 2016 to implement guidelines regarding the management of IT and ICT security issues on the capital market. It is likely that this year first companies belonging to these groups will be inspected in terms of directive implementation.
Join Piotr Ćwiertniewski and Patrycja Leszczuk during their presentation at a series of workshops organised by the Rzeczpospolita newspaper.

Our experts will discuss the changes that will be introduced under the General Data Protection Regulation

1. CURRENT LEGAL FRAMEWORK

On 1 January 2017 the Act of 16 December 2016 on Amending the Act on Nature Conservation and the Act on Forests entered into force. What changes most are the provisions regulating the issue of removal of trees and shrubs. Under new legal framework, pursuant to Article 83f of the Act on Nature Conservation, the requirement to obtain a permit for tree or shrub removal does not apply to:
1.1. trees with a circumference at a height of 130 cm of no more than 100 cm in the case of poplars, willows, chestnuts, boxelder maples, silver maples, black locusts and London planetrees, and no more than 50 cm in the case of other tree species;
1.2. trees and shrubs growing on land belonging to individuals and are removed for a purpose unrelated to business activity;
1.3. trees and shrubs removed for the purpose of turning fallow land into arable land.

2. CONSEQUENCES OF CHANGING THE ACT ON NATURE PRESERVATION
Following the initiative to cut down on red tape in respect of removing trees and shrubs, the number of removed trees grew rapidly. Cutting down trees in particular in popular sites of big cities, for instance, in front of the Warsaw City Hall, outraged many citizens and received wide media coverage. In consequence, according to press articles, another amendment of the Act on Nature Conservation is planned which will concern in particular the removal of trees and shrubs as outlined in clause 1.2 above.
For the time being, the bill has not been published yet and the scope of potential changes has not been specified, however, it is very likely that restrictions on tree removal will be introduced and enacted quickly. It should be noted that the bill introducing the above outlined changes was submitted to the Sejm on 7 December 2016, and the amended statute entered into force on 1 January 2017.
If you are planning to use the opportunity and remove trees or shrubs under the Act on Nature Conservation in its current form, you should remember that it may not be long until it is no longer binding.

Read an article by Marcelina Daszkiewicz in the 3rd issue of the In-procurement magazine in Poland.

On 1 January 2017, new provisions of the Act on Taxes and Local Charges will enter into force. Under the new provisions, a high real property tax will be imposed on wind farms. The change follows the shift in focus of the energy policy of the Council of Ministers in favour of hard coal, which in the near future may lead to gradual restriction of renewable energy supply.

At present, the taxable amount of the real property tax is equal to the value of all elements of a wind farm (all non-building structures) and not only buildings (masts and foundations).

The changes, which will hurt the pockets of taxpayers, are confirmed by the recent judgement of the Provincial Administrative Court in Bydgoszcz dated 21 February 2017 (case file No. I SA/Bd 866/16) which states that the taxpayer is obligated to report all elements of a wind farm. In the heard case, the panel of judges relied on the Act on Investments to the extent concerning wind farms, which clearly defines wind farms as non-building structures within the meaning of the Construction Law.

In light of the above developments, we recommend reporting for tax purposes all elements of a wind farm, meaning the building parts (masts and foundations) and technical parts (with rotors and rotor blades).

The lawyers of BSWW Legal & Tax have advised financial investors in the course of a mezzanine financing project involving the refinancing of the entire debt of Malborskie Zakłady Chemiczne Organika S.A. The refinancing took the form of a bond issue and a capital investment carried out by taking over a block of minority shares in the company’s share capital.

The total value of the project reached PLN 73 m, including PLN 62 m in bonds and PLN 11 m in capital investments.

Our office handled the entire transaction. Among others, we carried out a limited due diligence, developed transaction and security structure, prepared investment documentation (investment contract, security-related documents, corporate documents) and bond documents (conditions of issue, security-related documents, corporate documents).