Category: News

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).

On 1 June 2017, the Act of 7 April 2017 Amending Certain Other Statutes entered into force. The purpose of this act is to facilitate claiming debts. Under the act, among other provisions of law, Article 647(1) of the Polish Civil Code was amended. The article concerns the issue of the joint and several liability of the investor and the contractor (general contractor) for the payment of a subcontractor’s fee in exchange for construction works carried out thereby.

The motivation behind the amendment is to facilitate the procedure whereby the contractor notifies the investor about a subcontractor – the requirement to provide the investor with the agreement concluded with the subcontractor was waived, as well as the regulation whereunder the investor’s failure to raise objections or express reservations within 14 days from receiving the agreement concluded with the subcontractor or a draft thereof (with relevant documentation) was taken to mean that the investor had expressed consent for such agreement to be concluded and, as a result, was jointly and severally liable for the payment of the fee for construction works carried out by given subcontractor.

Today, in order to extend to the investor the liability for the payment of the fee due to a subcontractor on account of construction works carried out thereby, one should only provide the investor with a detailed description of what the construction works of given subcontractor are to concern, which should be taken care of before the start of said works. The investor will be jointly and severally liable with the contractor (general contractor) for the payment of the fee due to such subcontractor unless, within 30 days from notifying the investor about the subcontractor, the investor notifies the subcontractor and the contractor that it objects to such works being carried out by the subcontractor.

Nevertheless, in the case where construction works to be carried out by given subcontractor are described in detail in the agreement concluded between the contactor and the investor, the investor and the contractor (general contractor) will be jointly and severally liable without the need to notify the investor as specified above.

The investor’s liability for the payment of the fee to the subcontractor is expressly limited under the discussed provision of law to the value of the fee determined in the agreement between the subcontractor and the contractor, unless the amount of the fee of the subcontractor is higher than that of the contractor. Should this be the case, the investor’s liability for the payment of the subcontractor’s fee is limited to the fee due to the contractor.

All contractual provisions excluding the application of the regulation in question are invalid.

On 7 June, in Warsaw a conference was held which focused on “Improving business processes and data analysis in a company”. Our experts, Piotr Ćwiertniewski and Patrycja Leszczuk delivered a presentation about new conditions and restrictions regarding the use of data in the context of the GDPR.

With the support of act BSWW, ECC Group has signed new lease agreements for space in a shopping centre near Warsaw. The group of Nowa Stacja tenants was joined by a Danish household goods distributor Jysk, one of the leaders in the optical industry Vision Express and a producer and importer of sports clothing, footwear and accessories Martes Sport. Other tenants of the shopping centre include, among others, H&M, Carrefour, Multikino, Super-Pharm, Euro RTV AGD, CCC, KFC, Olimp, Zdrofit, and tour operators Itaka and Rainbow.

act BSWW advised ECC Group during negotiations of the lease agreements, starting with preparing a draft agreement, through negotiations with tenants and, ending with issues related to the performance of the agreements.

The work of the legal team was headed by Michał Wielhorski, managing partner. The project was coordinated by Katarzyna Okonek, associate. The team also included Alicja Sołtyszewska, partner, Katarzyna Marzec, partner, and Izabela Żmijewska, senior associate.

“We see the growing potential of shopping centres located outside the main Warsaw commercial zones. It is definitely an answer to the needs to those who live on the outskirts of the capital but often work in Warsaw,” said Michał Wielhorski about the current situation on the commercial real estate market.

The Nowa Stacja shopping centre has a leasable area of 26,000 square metres and 3 floors, comprising more than 120 commercial premises. In addition to shops and service outlets, shopping centre customers will also enjoy sports and entertainment facilities.