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Employers’ rights related to declaration of state of epidemic threat

On March 13, 2020, the Minister of Health announced the state of epidemic threat in Poland. One of the main consequences is the fact that many retail and cultural facilities are closed.

Below you find key comments on the employer’s rights related to the necessity to perform obligations arising from regulations issued by the Ministry of Health.

Leave

The employer is not allowed to impose a mandatory leave (paid annual leave or unpaid leave). Such leave can only take place upon a given employee’s consent.

Remuneration

Based on applicable laws, it is impossible to unequivocally determine whether employees are entitled to receive remuneration for the work they don’t perform as a result of the fact that workplaces are closed due to the state of epidemic threat.

As a general rule, remuneration is paid for the work performed. In can also be paid in the situations expressly defined in applicable legal regulations. Such regulations include the ones concerning remuneration for the time of inactivity and interruption. In order to receive such remuneration, specific criteria need to be fulfilled. One of them is that the employee needs to be available on standby (ready to perform work).

There are numerous arguments in favor of the view that the employer is not obliged to pay salaries/wages for the period over which work is not performed as a result of closing of workplaces due to the state of epidemic threat. However, when examining this issue, other aspects (which are important from the perspective of labor law) also need to be taken into consideration, especially the social dimension, the division of liability between the employer and the employee, and the employee’s privileged position in such relation.

Consequently, employers should realize that it might be necessary to pay remuneration upon the same conditions which apply to idle time pay.

Remote work

During the state of epidemic threat, the employer may ask the employee to work remotely (if possible). In such case, the employee is entitled to receive the same remuneration as if s/he was at the workplace.

Social insurance benefits

During the state of epidemic threat, employees are entitled to receive the following social insurance benefits:
1) in case of inability to work due to coronavirus infection – remuneration/sickness benefit;
2) in case of isolation or quarantine (recommended by a medical doctor) – remuneration/sickness benefit;
3) in case the employee submits a request for time off to take care of a child below 8 due to the fact that schools and other similar facilities are closed – additional care allowance of 14 days (added to other rights; however, it cannot be used by both parents at the same time).

Refusal to perform work

The state of epidemic threat means that only some workplace are closed. Others continue business as usual. It is worth noting here that restrictions related to assemblies of over 50 people do not apply to workplaces with over 50 employees. As long as they do not engage in operations listed expressly in the Regulation of the Minister of Health, they can continue operating in the same way as before.

However, an employee might refuse to perform work (in particular, this might happen at grocery stores, pharmacies and laundry shops). As a general rule, such refusal is possible if working conditions do not meet applicable OHS regulations and pose a direct threat to human life or health, or in case the work performed by a given employee exposes others to danger. This provision only applies under extraordinary circumstances, when the threat is real and unquestionable (rather than potential).

In view of the current situation, we can reasonably assume that if the employer provides protective measures (antibacterial gels, soap, etc.) and has notified employees about the rules of conduct (arising from guidelines of sanitary authorities) aimed at infection prevention, there is no reason to decide that an employee can effectively refuse to work.

However, such situations are discretionary in nature and might be affected by a range of factors (e.g. with respect to high-risk groups, cancer patients, etc.). Thus, every single case should be analyzed separately.

In its messages published so far, the National Labor Inspectorate (PIP) has noted that an employee can refuse to go on a business trip to regions with coronavirus infection.

Contact

Ewa Bieniak
Legal Counsel / Of Counsel
ewa.bieniak@actlegal-bsww.com
+48 691 951 285

Piotr Pośnik
Attorney-at-law / Partner
piotr.posnik@actlegal-bsww.com
+48 607 880 133

Epidemic – practical guide for the real estate sector

Below you will find detailed information and recommendations related to the state of epidemic threat for the real estate industry, which took effect on March 14.

We can already see clear impacts on our sector, as listed below.

1. Some tenants of commercial developments cannot run their operations; this applies to the following types of businesses:

a. Restaurants, canteens, cafés, fitness clubs, movie theaters, conference centers, clubs and art galleries.
b. Entities operating in the retail (clothes, textiles, shoes, furniture, lighting, home electronics, household appliances, bookstores), food service and entertainment industry.

2. Tenants expect that they won’t have to pay the rent, service charges and marketing fees for the period over which their premises are closed.

Comments:

The following scenarios are possible here, depending on specific circumstances and provisions included in lease agreements:

a. The tenant proves that a force majeure event has occurred, and is not obliged to pay the rent or any other fees;
b. The tenant does not pay the rent but continues to pay the service charges due to the fact that it is necessary to ensure continued operations of the building/complex, security services for the closed shop, etc.;
c. The tenant submits a rent reduction statement covering the period of restrictions arising from the Regulation of the Minister of Health, dated March 13, 2020, on declaration of the state of an epidemic threat in Poland; in such statement, the tenant refers to the premises’ legal defects (in case the premises are located in a retail facility of over 2,000 m2);
d. The above combined (e.g. discounts);
e. None of the above – depending on specific circumstances.

We need to keep in mind that in case of externally financed developments (esp. bank loans and bonds), any rent/service charge discount requires the financing entity’s consent or back-transfer.

Recommended actions:

• Analysis of lease agreements in that respect, especially in terms of:
(i) provisions related to force majeure;
(ii) the type of the tenant’s operations (this might be debatable in case of chain stores that combine different types of operations, as well as those stores whose operations might turn out to be crucial from the point of view of panic prevention and access to necessary resources);
(iii) any provisions specifying that tenants are not exempt from the obligation to make payments in case a building/lease object gets closed due to a sanitary threat, force majeure, etc.);
(iv) provisions related to liability arising from warranty that covers the premises’ legal defects;
• Monitoring notices/letters from tenants (some tenants that are not even covered by retail restrictions have already sought to invoke force majeure);
• Defining the actual group of tenants covered by the restrictions (the Regulation makes a reference to PKD [Polish Classification of Business Activity] and the criterion of “main activity”);
• Determining a unified approach to all tenants covered by the restrictions (uniform practice).

3. Litigation-related actions taken by tenants

Tenants might embark on litigation in order to secure changes to their obligations arising from lease agreements, especially suspension, reduction or deferral of payments of the rent, service charges and other fees.

Comments:

• The following scenarios are possible here, depending on specific circumstances:

a. Lawsuit for establishing the existence of force majeure, along with motion for interim relief:
(i) filing a lawsuit for establishing the existence of a force majeure event, as a result of which the tenant might hold specific rights defined in the lease agreement, especially the right not to pay the rent/other fees or the right to terminate the agreement;
(ii) as a consequence of force majeure, it is not possible to use the lease object, meaning that the principle of equal consideration of interests is not respected (which, in itself, might serve as the basis for voidance of payment obligations);
(iii) alternatively, the tenant might file a lawsuit for establishing that rent was effectively reduced as a result of submission of a relevant notice based on the premises’ legal defects (such objection can also be raised in case the lessor files a lawsuit for payment covering the period of retail restrictions);
(iv) in order to quickly arrive at the desired results, such lawsuit may be combined with a motion for interim relief involving temporary measures that regulate the legal relation between the tenant and the lessor (e.g. an obligation to pay the rent/other fees into a court deposit);
(v) it is also possible to submit a motion for interim relief before filing a lawsuit; limited operations of courts in relation to the current state of epidemic threat do not apply to interim reliefs; motions in that respect are examined at closed-door sessions (which continue to be held without any limitations as of now);
(vi) within two weeks of securing an interim relief, the tenant is obliged to file a lawsuit with a court (otherwise the interim relief is lost).

b. Lawsuit for amendments to legal relation due to fundamental change of circumstances (rebus sic stantibus), along with motion for interim relief:
(i) a fundamental/extraordinary change of circumstances (i.e. implementation of the state of epidemic threat), which renders it impossible to use the lease object, might serve as the basis for a lawsuit aimed at amending the legal relation between the lessor and the tenant;
(ii) the tenant could seek exemption from the obligation to pay the rent for a given period, or a modification of its value; each situation would be examined separately; in such cases, the court is in no way bound by the requests specified in the statement of claim;
(iii) the court is obliged to balance the parties’ interests, meaning that the tenant would be more likely to get a favorable ruling if there was a higher risk of: (a) lack of the possibility to fulfill a specific obligation in the future (e.g. the lessor is unable to deliver the lease object again / the tenant cannot run its business operations); or (b) considerable losses on the tenant’s part;
(iv) in practice, the above means that such option would be of interest to tenants that are at the verge of insolvency;
(v) the aforesaid remarks concerning interim relief apply to this situation, as well.

c. Other potential litigation-related actions resulting from lease agreements.

Recommended actions:

• Analysis of lease agreements in that respect, especially in terms of other litigation-related actions which might be taken by tenants;
• Monitoring the submission of interim relief motions with competent courts. Jurisdiction might be determined on the basis of contractual provisions or applicable legal regulations;
• Monitoring notices/letters from tenants – potential pre-trial notices with demands related to modification of contractual obligations.

4. Limitations in the operations of other tenants (which are not covered by the retail restrictions)

Comments:

When some tenants suspend their operations, others will seek to limit their activities, request a reduction of their rent/other fees, and pursue contractual penalties for suspended/interrupted operations.

Recommended actions:

• Analysis of lease agreements signed by tenants that are not covered by the restriction (in terms of force majeure, the type of the tenant’s operations, and clauses concerning warranties, the minimum required occupancy rate, the presence of specific other tenants or sectors, and footfall/turnover targets);
• Monitoring notices/letters from tenants that are not covered by the restriction; monitoring their operations;
• Defining the actual group of tenants covered by the restrictions (the Regulation makes a reference to PKD [Polish Classification of Business Activity] and the criterion of “main activity”);
• Determining a unified approach to all tenants covered by the restrictions (uniform practice).

5. Impact of the restriction on the dates specified in pre-lease agreements, relocations, etc.

Comments:

The restriction of business operations, imposed on selected tenants, means that it is not possible to keep opening dates. This has a considerable impact on other dates, e.g. early access or handover for the purpose of works performance.

Recommended actions:

• Analysis of pre-lease agreements, relocations, etc. (in terms of force majeure, setting/calculation of deadlines, notices, penalties for untimely handover, penalties for failure to embark on operations, as well as clauses concerning the occupancy rate, the presence of specific other tenants or sectors, and footfall/turnover targets);
• Monitoring notices/letters from tenants that are not covered by the restriction; monitoring their operations;
• Defining the actual group of tenants covered by the restrictions (the Regulation makes a reference to PKD [Polish Classification of Business Activity] and the criterion of “main activity”);
• Determining a unified approach to all tenants covered by the restrictions (uniform practice).

6. Limitation of services provided by lessors for their buildings due to some tenants’ force majeure-related suspension of operations

Comments:

If the lessor does not regard the restriction of the tenants’ activities as a force majeure event (that exempts them from the obligation to pay the rent and/or service charges), it will be difficult for the lessor to invoke force majeure when trying to justify the limitation of services provided for a given building.

Recommended actions:

• Analysis of service provision/maintenance agreements (in terms of force majeure, contractual termination for the so-called “just cause,” and temporary suspension of services);
• Coordination of the aforesaid activities with credit facility agreements, terms of the bond issue, external loans and lease agreements – especially in terms of performance of services for operating tenants (e.g. grocery stores), consequences of temporary service interruptions, etc.;
• Coordination of the aforesaid activities with insurance conditions – in order to avoid a loss of insurance coverage due to limited services.

7. Considering the need for an extended scope of services for buildings, if justified by the epidemiological situation, e.g. additional disinfection and cleaning services

Comments:

The question arises whether it is possible to settle increased costs as part of the service charge. We need to keep in mind that grocery stores (for example), which are facing onslaught of customers and can continue their operations, often have a service charge cap specified in their lease agreements. Tenants that are obliged to limit their operations might not want to pay higher service costs that allow other tenants to continue their operations.

Recommended actions:

• Analysis of lease agreements (in terms of service charge settlements and caps/other limits);
• Coordination of the aforesaid activities with credit facility agreements, terms of the bond issue and external loans – e.g. with respect to the operating budget communicated to banks, bondholders and lenders;
• Coordination of the aforesaid activities with insurance conditions – in order to avoid a loss of insurance coverage due to limited services.

8. Considering the need to cancel parking fees (and open the gates)

Comments:

If justified by the epidemiological situation (e.g. in order to limit the customers’ contact with parking machines), it might be necessary to cancel parking fees.

Recommended actions:

• Analysis of lease agreements (in terms of parking lot-related settlements);
• Coordination of the aforesaid activities with credit facility agreements, terms of the bond issue and external loans – with respect to the operating budget communicated to banks, bondholders and lenders;
• Analysis of service provision/maintenance agreements in terms of parking fee cancellations.

9. Considering setting a maximum number of customers in a shop at a time

Comments:

The question arises as to whether to adopt a rule based on which only a specific number of people can be inside a store at the same time. The aim is to minimize the risk of contact (if justified by the epidemiological situation). Such limitation can be introduced as part of a tenant’s internal policy (e.g. a grocery store or a pharmacy) or by competent authorities (at a later date).

Recommended actions:

• Analysis of lease agreements in terms of the possibility to extend the scope of services and payments for additional services (e.g. access coordination and extra security services);
• Analysis of lease agreements (in terms of service charge settlements and caps/other limits).

10. Impact of lack of rent/service charge payments on external financing (credit facility agreements, terms of the bond issue, external loans)

Comments:

Irrespective of how long the current epidemiological situation persists, the impact on external financing will be unfavorable.

Recommended actions:

• Analysis of credit facility agreements and terms of the bond issue in light of:
– existing obligations (principal and interest);
– indicators (esp. DSCR);
– possibility to apply a higher margin, request additional security or terminate financing (e.g. material adverse change or amendments to the Banking Law);
– updates of operating budgets;
• Considering asking the financing entities for a grace period for repayment of interest/principal, or preclusion of the obligation to reach specific ratios;
• Considering asking the financing entities to mobilize reserves (e.g. blocked resources, rent surplus, CapEx/supplementary accounts);
• Considering asking the financing entities to activate special tranches that allow buildings/complexes to operate as usual under extraordinary circumstances;
• Considering asking for a standstill agreement in case of a crisis.

11. Impact of the epidemiological situation on the executed preliminary property sale agreements

Comments:

Given the epidemiological situation and the resulting difficulties in operations of commercial facilities (incl. the risk that new lease agreements will not take effect on the original dates), the execution of final agreements might be delayed. Moreover, in view of the above, purchasers (and also sellers – in certain cases) might wish to rescind preliminary agreements.

Recommended actions:

Analysis of the executed preliminary agreements in terms of:
– performance of obligations related to turnover levels, handover/acceptance or start of operations (given the fact that some tenants are unable to open their stores);
– possibility to adjust the price;
– possibility to change the conditions (e.g. extend deadlines);
– possibility to terminate or rescind agreements, incl. with respect to refundable and non-refundable advances, the costs incurred (e.g. the costs of legal and technical due diligence) and financing arrangements.

12. Impact of the epidemiological situation on the executed sale agreements that entail adjustment of the sale price on the basis of turnover or profits (incl. any reconciliation and earn-out clauses).

Comments:

In case of rent reduction/suspension and a significant drop in turnover, it might be difficult to determine the prices, especially if they are based on revenue generated by a given building.

Recommended actions:

Analysis of the executed preliminary agreements in terms of:
– impact on price settlement (especially important for share deals) and adjustment;
– impact of the extraordinary situation on earn-out and reconciliation clauses (these clauses do not take into account reduced turnover or rent as a result of extraordinary situations);
– possibility to change the conditions (e.g. extend deadlines for targets);
– possibility to terminate or rescind agreements, incl. with respect to refundable and non-refundable advances, the costs incurred (e.g. the costs of legal and technical due diligence) and financing arrangements.

13. Impact of the epidemiological situation on insurance policies

Comments:

Many buildings are (due to banking conditions) covered by rent (and/or service charge) loss insurance. Most insurers will refuse to make payments due to the extraordinary situation. It is worth bearing in mind that in case of external financing, insurance claims have been transferred (conditionally or unconditionally) to financing entities.

Recommended actions:

• Analysis of the executed insurance agreements (general terms and conditions) in light of the possibility to get insurance compensation for lost income;
• Analysis of the executed credit facility agreements in terms of activation of the insurance procedure (whether an insurance claim has been transferred to the financing entity; whether such transfer was conditional or unconditional; whether the conditions have been met; how the relevant procedure is applied, etc.).

14. Impact of the epidemiological situation on construction agreements (general contractor, fit-out, etc.).

Comments:

General contractors and other contractors of buildings or fit-out works are already saying that they will not be able to meet deadlines or budgets for reasons beyond their control. Delivery dates scheduled for buildings and lease objects might not be met.

Recommended actions:

• Analysis of agreements with contractors in terms of force majeure and changes to deadlines/budgets;
• Analysis of related agreements (credit facility agreements, terms of the bond issue, loan agreements) in terms of dates and activation of additional tranches.

In case of any questions or doubts, we are available to address them at any time, including weekends and outside typical business hours (if need be, we will also involve experts in labor law and tax law).

Below you will find contact details of key real estate team members:

Michal Wielhorski
+48 605 911 303
michal.wielhorski@actlegal-bsww.com

Marek Wojnar
+48 601 379 610
marek.wojnar@actlegal-bsww.com

Marta Kosiedowska
+48 605 107 997
marta.kosiedowska@actlegal-bsww.com

Alicja Sołtyszewska
+48 663 004 333
alicja.soltyszewska@actlegal-bsww.com

Małgorzata Wąsowska
+48 691 477 047
malgorzata.wasowska@actlegal-bsww.com

Piotr Pośnik
+48 607 880 133
piotr.posnik@actlegal-bsww.com

Katarzyna Marzec
+48 603 112 225
katarzyna.marzec@actlegal-bsww.com

Magdalena Banaszczyk-Głowacka
+48 503 575 012
magdalena.banaszczyk@actlegal-bsww.com

Michał Sołtyszewski
+48 604 541 101
michal.soltyszewski@actlegal-bsww.com

Izabela Żmijewska
+48 603 300 382
izabela.zmijewska@actlegal-bsww.com

Mateusz Prokopiuk
+48 606 383 247
mateusz.prokopiuk@actlegal-bsww.com

Marta Łobzowska
+48 607 144 121
marta.lobzowska@actlegal-bsww.com

Marcelina Daszkiewicz
+48 665 667 670
marcelina.daszkiewicz@actlegal-bsww.com

Aneta Gierzyńska
+48 667 664 224
aneta.gierzynska@actlegal-bsww.com

Epidemic as basis for tax relief

We are still waiting for the draft special-purpose tax act. Plans for its adoption were announced by the Ministry of Development. It is supposed to include a range of relief measures for taxpayers, such as postponement of the effective date of the “new” SAF-T VAT, quicker VAT refunds and easier application of the split payment mechanism (as discussed in further detail in our tax alert of March 13, 2020).

Payment reliefs

In its official announcement, the Ministry of Finance declared that “in case of negative financial consequences for businesses, arising from the coronavirus epidemic, tax offices will take these unusual circumstances into account while processing applications for relief in payment of tax obligations (payment term deferral, payment in instalments, cancellation of tax debt, etc.).” Taxpayers’ applications related to the above will be examined before any others.

If economic analyses lead you to a conclusion that financial liquidity might be affected, we recommend prompt submission of an application for a relevant relief. Such application should be supported with adequate financial forecasts and a description of the taxpayer’s justified interest which – in our opinion – emerges when the ability to engage in business operations is restricted on the basis of a special-purpose act.

Requests and recommendations

In our opinion, the solutions presented by the aforesaid Ministries are incomplete, meaning that additional reliefs and facilitations should be added to them. In view of limited resources, it might turn out to be impossible to perform tax and accounting obligations in a timely fashion. In particular, the special-purpose act should include solutions that reschedule the deadlines for tax/accounting obligations, incl.
• postponing deadlines for submission of annual CIT-8 returns for 2019, annual PIT returns for 2019 and the annual IFT-2R form for non-residents;
• postponing the deadline for preparation, signing and approval of 2019 financial statements;
• lack of sanctions for failure to timely submit SAF-T, VAT returns and mandatory disclosure reports, or (optionally) deferral of submission dates;
• lack of sanctions for untimely payment of CIT, PIT and VAT advances, as well as property tax instalments;
• suspension of ongoing tax audits and refraining from any new ones.

Please feel free to contact us and communicate your needs related to the ad-hoc assistance that should be offered as part of the special-purpose tax act. Any needs that you report will be forwarded to relevant Ministries.

0% VAT on donation of medical products

In the meantime, on March 12, 2020, the Ministry of Finance published a draft regulation pursuant to which entities that donate the following types of goods will be able to apply the 0% VAT rate on such donation: medical devices, laboratory glassware, laboratory equipment, medicines, active substances, biocidal products (only disinfectants and specialist diagnostic tests used for analysis and identification of pathogens in water, air and soil), personal protective equipment (only masks, protective suits, shoe protectors, caps and gloves). The above applies on condition that a written donation agreement is executed between a taxpayer and the Material Reserves Agency or the Central Base of Sanitary and Anti-Epidemic Reserves, clearly specifying that the donated goods will be used for the aforesaid entities’ tasks related to combating risks caused by SARS CoV-2. In our opinion, donors should retain their right to deduct VAT on the donated goods. The draft act entails the possibility to apply the 0% VAT rate for donations made between February 01, 2020 and August 31, 2020.

Contact:

Małgorzata Wąsowska
Tax Advisor / Partner
malgorzata.wasowska@actlegal-bsww.com
+48 691 477 047

Business alert – Minister of Health adopts Regulation announcing state of epidemic threat!

What does that mean for your business?

In view of numberless questions related to the introduction of the state of epidemic threat in Poland, our law firm has designated a team of specialists in labor law, commercial law, tax law and real estate (tenants’ claims related to mandatory suspension of operations in shopping malls). The team is monitoring the legal situation and changes arising from the implementation of new regulations.

How to protect your business?

Does the restriction of assemblies to 50 people have an impact on your business (e.g. manufacturing plants, offices)? Are food units in shopping malls operating upon the same principles as ones located outside them?

Given the rapidly changing legal situation, our experts are fully available to answer any questions our clients might have in order to quickly and efficiently adjust their business to the new market situation.

If you have any doubts or inquiries, please ask our specialists (who are also available at the weekend):

Michał Wielhorski
Real estate transactions & commercial leasing
Attorney-at-law / Managing Partner
michal.wielhorski@actlegal-bsww.com
+48 605 911 303

Marek Wojnar
Real estate transactions / Corporate law
Attorney-at-law / Managing Partner
marek.wojnar@actlegal-bsww.com
+48 601 379 610

Małgorzata Wąsowska
Tax law
Tax Advisor / Partner
malgorzata.wasowska@actlegal-bsww.com
+48 691 477 047

Ewa Bieniak
Labor law
Attorney-at-law / Of Counsel
ewa.bieniak@actlegal-bsww.com
+48 691 951 285

Marta Kosiedowska
Real estate transactions / Corporate law
Attorney-at-law / Partner
marta.kosiedowska@actlegal-bsww.com
+48 605 107 997

Alicja Sołtyszewska
Real estate transactions & commercial leasing
Attorney-at-law / Partner
alicja.soltyszewska@actlegal-bsww.com
+48 604 608 728

Relief measures to help businesses tackle coronavirus

Force measure clauses

Coronavirus (causing COVID-19 disease) is an extremely contagious virus which has recently been declared a pandemic. On 12 March 2020, the Health Minister announced that a state of epidemic threat was about to be introduced in Poland. It is a legal tool introduced with respect to a specified area due to epidemic risk in order to allow the government to take certain statutory preventive measures. As a result, the Health Minister will be free to issue regulations imposing limitations on travel as well as sale and use of specified products, temporary restrictions on the operation of institutions and workplaces and bans on gatherings and public events.

Depending on the circumstances of the specific case, as a result of the state of epidemic threat, parties to a contract may be released from liability for defaulting on a contract. Legal commentators agree that certain events, so-called force majeure (vis maior) events, may serve as protection against a party’s liability for failure to perform an obligation or its inadequate performance. Force majeure does not justify every contract default. A party may seek relief under a force majeure clause only if the default is the consequence of circumstances of unforeseeable nature which were beyond the control of the parties involved.

Odds are that the government will announce a state of epidemic if the number of confirmed coronavirus cases continues to grow at the current rate. A state of epidemic is a legal tool introduced with respect to a specified area due to epidemic outbreak in order to allow the government to take certain statutory measures to combat the epidemic and mitigate its impact. If the state of epidemic is announced, a party defaulting on a contract may seek to be released from liability due to a force majeure event (e.g. an official ban on operation of office or commercial buildings or restrictions on export of certain goods). Moreover, the state of epidemic may serve as an additional reason to trigger the rebus sic stantibus clause stipulating that a contract may be amended where there has been a change of the circumstances in which the contract was made. In accordance with judicial decisions, such amendment will be permitted in the case of “circumstances which happen rarely, are unusual, extraordinary, but not necessarily a catastrophe. Natural disasters and epidemics may serve as an example (…).”

The coronavirus outbreak brings about a host of legal issues for businesses. Business owners would be well advised to verify contracts in terms of potential for modification of rules governing liability release and remain especially careful when executing new contracts. This will help them to avoid a situation where all of a sudden the contract cannot be performed (e.g. in case of recently made contracts, one will not be able to claim that a coronavirus epidemic is unforeseeable).

Coronavirus emergency act regarding tax issues

The Ministry of Development is working on a coronavirus emergency bill (in Polish: specustawa) which is to head to the Sejm on 25 March 2020. It is expected to enter into force on 1 April 2020.

The Development Ministry’s changes and proposals regarding taxes:
• change of the effective date of the so-called sugar tax (late 2020) and the new unified control file for VAT purposes (JPK VAT) for “large” taxpayers (1 July 2020);
• measures to facilitate accounting for VAT and split payment;
• early VAT refunds;
• retroactive deduction of losses incurred in 2020;
• option to deduct from taxes cancelled travel expenses for businesses affected by the coronavirus crisis;
• abolishment of tax rescheduling fee.

The Finance Ministry encourages taxpayers to use online services and contact public institutions through e-PUAP platform or helplines. Restricted availability of tax offices is also anticipated.

Applicable social security regulations

Subject to certain conditions which may apply also in the case of the coronavirus outbreak, applicable social security regulations may allow insurance holders to:
• reschedule the payment of social security contributions which are not due yet;
• pay overdue social security contributions in installments;
• write off debt resulting from social security contributions.

The first coronavirus emergency act

On 8 March 2020, the first coronavirus emergency act was signed into law. It introduced a number of special measures regarding the spread of the coronavirus, incl.:
• the option for employers to instruct employees to work from home;
• additional child care allowance for parents forced to look after a child under 8 years old due to the closure of a nursery, a kindergarten or a school;
• the option to purchase goods and services necessary to counteract the coronavirus without adhering to the public procurement regulations;
• the option to design, develop, redevelop, maintain and demolish buildings (and change the permitted use of them) in order to counteract the coronavirus without adhering to certain building regulations.

Please do not hesitate to contact us if you need more information on the topics discussed above.

Company law 
Marek Wojnar
Attorney-at-law / Managing Partner
+48 22 420 59 59
marek.wojnar@actlegal-bsww.com

Taxes
Małgorzata Wąsowska
Head of Tax Practice / Tax Advisor / Partner
+48 22 420 59 59
malgorzata.wasowska@actlegal-bsww.com

Labor law
Ewa Bieniak
Legal counsel / of Counsel
+48 22 420 59 59
ewa.bieniak@actlegal-bsww.com

act BSWW advises TUF Real Estate on retail park sale

A TUF Real Estate company has sold Chełmiński Strip Mall, a modern retail park which is the largest retail hub in Chełmno. The new owner of the real estate is LCP Properties.

A fully-leased modern shopping complex, Chełmiński Strip Mall is the developer’s first real estate investment. TUF Real Estate’s second project, Warmiński Strip Mall is underway and is scheduled to open late this year. Its third project, a strip mall in Golub-Dobrzyń, is expected to be up and running next year.

“We are glad to be passing on a project which the local community will enjoy for years to come,” says Fabian Eryk Barbarowicz, Managing Partner at TUF Real Estate Polska. “We are committed to providing facilities that are functional in nature. This is why we are very particular about selecting investment sites. Our projects target small towns, where the development of this type of object allows to satisfy the shopping needs of the local community. Apart from Warmiński Strip Mall, which is pending completion, we have started the development of and taken steps to lease the space in the strip mall in Golub-Dobrzyń, which is expected to open next year. “We are also actively working on two other projects to be completed this year,” he adds.

TUF Real Estate was advised on the sale of the retail park in Chełmno by act BSWW. The law firm also assisted the investor in the course of project development. The park was opened last year, in November.

The law firm’s team was led by Michał Wielhorski (Managing Partner). Other team members included Mateusz Prokopiuk (Senior Associate) and Michał Sołtyszewski (Partner).

“Retail parks continue to be an attractive segment of real estate market,” says Michał Wielhorski, Managing Partner at act BSWW. “Our Client’s successful projects are an excellent example of this,” he adds.

TUF Real Estate is a well-established real estate company, operating in office and retail real estate market.

Chełmiński Strip Mall is a cutting-edge retail/service complex located at 18 Polna Street in Chełmno. It was opened in November 2019. The project is made up of three buildings with a total leasable area of approx. 5,800 m2 and 170 parking spaces. All the space in the complex has already been leased to major Polish and international brands, incl.: Pepco, Rossmann, CCC, Martes Sport, KIK, Media Expert, Dealz, Gzella, PLUS GSM, Biedronka.

act BSWW reinforces its bankruptcy and restructuring practice

The act BSWW bankruptcy and restructuring team has been joined by Barbara Szczepkowska. She will be a Partner and will co-head the practice.

Barbara consults on bankruptcy and restructuring law. Her expertise also covers civil and commercial litigation.

“Barbara is a seasoned advisor with many years of experience consulting Clients in bankruptcy and restructuring proceedings,” says Piotr Wojnar, Managing Partner at act BSWW.

Her practice focuses on bankruptcy and restructuring proceedings regarding businesses

Having advised receivers, court-appointed supervisors and administrators, she boasts vast experience in advising insolvency practitioners. In bankruptcy and restructuring processes, she protects the interests of both creditors and debtors.

Moreover, Barbara has successfully represented clients in a few dozen personal bankruptcy processes ending in the debtor’s release from debts.

She has also handled a variety of other court cases, including complex fraudulent transfer cases and major damages recovery cases.

“The move to grow the bankruptcy and restructuring practice was dictated by the expectations of our Clients,” adds Piotr Smołuch, Managing Partner at act BSWW.

Prior to joining act BSWW, Barbara worked for many years for Zimmerman i Wspólnicy.

She authored numerous publications related to her practice.

act BSWW advises on one of this year’s largest deals in Poland’s real estate market

Buma Group, a major developer based in Kraków, is selling its real estate assets to Reino RF CEE Real Estate. The portfolio sale covers office and residential buildings, residential and office development land, construction projects, incl. office projects nearing completion, with over 110,000 m2 of leasable area a major part of which has already been leased, and  land allowing the implementation of office projects with a total leasable area of over 80,000 m2 and residential projects with a total area of over 100,000 m2.

The parties signed the preliminary agreements for the sale of Buma’s assets on 14 and 28 February 2020.

The assets will go to Reino RF CEE Real Estate, a joint venture established by two investment companies – Reino Capital and RF CorVal International Holdings Limited. The final agreements are to be executed by the end of June this year. The total value of the assets sold by Buma runs in excess of PLN 1.3bn.

act BSWW provided transaction-related legal advice to the Management Boards of Buma Group companies.

The law firm’s team was led by Michał Wielhorski (Managing Partner) and included Mateusz Prokopiuk (Senior Associate), Michał Sołtyszewski (Partner) and other members of real estate and tax teams.

Buma Group is the leader in the office market in Kraków. Its projects include office and residential developments, real estate management and general contracting for investments and facades. Over a period of almost thirty years, the company has completed more than a dozen residential and office projects covering a leasable area of 250,000 m2.

Reino Capital Group is a listed holding company made up of businesses operating in commercial real estate sector.

Established in Australia, RF CorVal is a real estate fund manager and investor managing over USD 2.2bn in assets.

The buyer was supported in the transaction by Greenberg Traurig. The seller was advised by Clifford Chance, Domański Zakrzewski Palinka and Oleś & Rodzynkiewicz.

act BSWW and Navigator Dom Maklerski workshops: Shareholder register and shares used as collateral

On 6 March 2020, together with our Partner – Navigator Dom Maklerski, we will host the first in a series of meetings focusing on the shareholder register and shares used as collateral.

The meetings will be hosted by Jakub Salwa – Partner at act BSWW and Bartosz Krzesiak – ECM Director at Navigator Capital Group.

Agenda:

• Commercial Companies Code revision – general assumptions and key changes
• obligatory share dematerialization – selected practical issues from the perspective of creditors:
– interim period until 1 January 2021
– target period after 1 January 2021

The meeting will be combined with a discussion on how to get ready for the changes and take relevant actions.