Category: News

The group of partners of act BSWW has been joined by Iwona Kurylak and Łukasz Piekarski, both specialising in securities issue. The BSWW team has also grown by one more expert – Małgorzata Wąsowska who is a tax advisor with many years of experience gained, among others, in the Big Four.

“The corporate bond market in Poland has been growing steadily over the last few years thanks to relatively low interest rates. The debt market has also benefited from the stagnation on the share market. As a result of those two factors as well as deeper specialisation and expansion of the client portfolio of our law firm, our team handling security-related issues is growing strong. The fact that Iwona Kurylak and Łukasz Piekarski have been made partners is the natural consequence of our growing share in the security market,” said Piotr Smołuch, the leader of the security practice at act BSWW. “Tax-related issues are a material part of the business concerns of our Clients, in particular, in the current economic situation. It is important that the Clients feel that they are in good hands. Małgorzata Wąsowska is definitely a tax expert whom our Clients can trust completely,” he adds.

Iwona Kurylak is an attorney-at-law and a partner at act BSWW. She provides legal services with respect to issuance of securities, with particular emphasis on the issuance of secured bonds. Iwona has comprehensive experience in mergers and acquisitions (i.a., preparation of NDA, supervision and performance of a due diligence analysis, preparation and negotiation of transaction structure, preparation and negotiation of transaction documents, including investment contracts, share purchase agreements or agreements for the sale of undertakings/their organized parts/assets, preparation of contracts related to a joint venture). Iwona also participates in legal services related to bankruptcy law and restructuring processes. She also provides day-to-day corporate assistance to commercial companies, including listed companies. Her practice extends to capital markets law, commercial law as well as bankruptcy and reorganization law.

Łukasz Piekarski is an attorney-at-law and partner at act BSWW. Łukasz deals with the broad area of commercial and criminal law, including criminal-economic cases. He also possesses experience in civil and criminal litigation as well as advising on the issue of bonds.

Małgorzata Wąsowska has vast experience in tax advisory services in the field of M&A as well as share and asset deals. She has supervised and conducted a few dozen tax due diligence investigations, developed transaction structures, negotiated share purchase agreements and agreements regarding the sale of enterprises or organised parts of enterprises/their assets. In the years 2013-2015 she worked as the M&A manager. She has many years of experience in every-day tax advisory services provided to companies operating in the real property, construction, e-commerce, energy and FMCG sectors. She has represented clients in proceedings before tax authorities and administrative courts on many occasions and provided cross-border legal services.

We are pleased to announce that BSWW and its lawyers have been recognized in two top international legal rankings – Legal 500 and Chambers Europe.
Our practices recommended by Legal 500 include:
• Commercial, corporate and M&A
• Real Estate and Construction
• Dispute resolution
• Capital markets (debt)
• Employment
• Intellectual Property
• Tax
• Banking and Finance

Marek Wojnar, Jacek Bieniak, Marta Kosiedowska and Giuseppe La Rosa have been recommended individually in Commercial, corporate and M&A. Moreover, Marek Wojnar has been recognized in Intellectual Property and Michał Wielhorski in Tax.

Legal 500 states: “At BSWW Legal & Tax, Giuseppe La Rosa and managing partner Jacek Bieniak assisted Cartotecnica Goldprint with setting up a company in Poland. Marta Kosiedowska advised GS Investments on a €2.7m share sale by the majority shareholder of an affiliated company. Marek Wojnar is also recommended.”

Chambers Europe has recognized BSWW Legal & Tax in the Real Estate practice. What is more, Michał Wielhorski has been ranked as one of the leading estate lawyers in Poland.
According to Chambers Clients value our team’s business acumen. “They are very helpful, available when needed and adopt a business approach to solving problems,” a client reports, while another praises them as “communicative and business-oriented lawyers.”

Chambers refers that “Michał Wielhorski frequently advises developers on commercial and office projects. He recently assisted ECC Group with the development of the Nowa Stacja shopping centre project. Clients praise him as “business-oriented and effective.”

On Tuesday, the Ministry of Digital Affairs published a personal data protection bill. The scope of the bill is not final yet. It covers only this part of the regulations which until now has been prepared by the Ministry. Other provisions which the bill is to include are still worked on. The Ministry also stated that the part already published may still be changed. The published bill includes general provisions, procedure regarding infringements and control procedure, personal data protection, European administrative cooperation, administrative fines, civil liability and issues related to data protection inspectors.

The publication, even though partial, should be read as a very positive sign – comments Piotr Ćwiertniewski, attorney-at-law and partner at BSWW Legal & Tax. Adjustment of personal data processing to the requirements of the general EU regulation on personal data protection (regulation 2016/679) will be a complex and multidimensional process. Considering how little time is left to complete the adjustment, data administrators should as soon as possible get to know the provisions implementing regulation 2016/679 in the Polish legal system. For this reason each action getting us closer to knowing more about those regulations and making it possible to prepare comments to the bill as early as possible is welcome.

Ericsson has signed a lease contract with respect to a space of 8000 square metres in DOT Office, an investment project of Buma Group in Cracow. The seat of the company is scheduled to be moved in June 2017. The Tenant is going to lease the entire Building E of the investment.

The BSWW lawyers have advised the Buma Group in the course of negotiating and concluding a lease agreement. Michał Wielhorski, attorney-at-law and managing partner, headed the team working on the case with the support of Alicja Sołtyszewska, attorney-and-law and partner.

The law firm provided advice in terms of all matters related to a legal due diligence investigation and the purchase of real property where the DOT Office complex was to be built as well as on the developer, financing and commercialisation processes, both on the first stage of the project as well as on the later stages.

The DOT Office Complex comprises 5 modern office buildings with a leasable area of more than 40,000 m2 located at ul. Czerwone Maki in Cracow within a special economic zone. The DOT Office Complex has been designed with sustainable development as an objective. The design was prepared by the Medusa Group studio.

The BUMA Group is the leader on the market of office buildings as well as an investor and a developer. The group is composed of a number of companies operating in the field of office and residential investments, real property management, general contracting regarding investment projects and façades. The Buma Group has been operating on the Cracow market for over 26 years. During that time, it has developed, i.a., office buildings with a leasable area of more than 180000 m2, more than a dozen housing estates and residential buildings in London. The flagship office projects include: Dot Office, Quattro Business Park, Aleja Pokoju 5, Green Office, Rondo Business Park, Buma Square Business Park and Onyx Office. Tertium Business Park and Wadowicka 3 in Cracow are currently under construction.

‘’We appreciate working on the biggest projects on the office market in Cracow. During the project we have been providing comprehensive advisory services from the very beginning. We have been cooperating with the Buma Group in terms of real property acquisitions, constriction and full commercialisation of the building,” said Michał Wielhorski.

The Minister of Energy restricts access to the gas transmission system by altering the regulations concerning technical requirements and making the possibility of connecting to transmission system conditioned upon a type of operations run, network diameter and rated power.

On 8 February 2017, another amendment of the resolution of the Minister of Economic Affairs dated 2 July 2010 on detailed terms of the operation of gas system (consolidated text: Journal of Laws of 2014, item 1059, as amended) will enter into force. The amendment concerns technical requirements, set forth in a schedule to the resolution, concerning the conditions for connection to the gas transmission system.

As a result of the change of the resolution:
• in terms of the entities belonging to connection group A (entities the devices, installations and networks of which will be directly connected to the transmission system or high pressure distribution system, save for entities belonging to connection group C) – only the following devices and installations will be allowed to be connected to the gas transmission system:
– with a rated power of at least 45 000 m3/h, unconnected to gas distribution system;
– used only to power vehicles with natural gas, irrespective of their power,
however, the devices and installations of both above categories can be connected only to a transmission system of less than DN 1300,
• in terms of entities belonging to connection group C (entities dealing with transmission and distribution of gaseous fuels, their production, processing or extraction, warehousing gaseous fuels and liquefaction and regasification of liquefied natural gas) dealing with transmission or distribution – only devices and installations which are used to transmit gaseous fuels will be allowed to be connected to gas transmission system of DN 1300 and higher.

In accordance with the regulations before amendment, devices, networks or installations belonging to entities from connection group A could be connected to gas transmission system if their rated power was at least 5 000 m3/h (without any requirements regarding the diameter of the network), and as regards connecting entities belonging to connection group C, technical requirements whereby the possibility of connecting to a transmission network would be dependent on the network diameter or rated power were not specified.

The amending regulation also provides for a transitional measure, where applications for connection submitted before the date of entry into force of the amendment will be processed in accordance with the regulations applicable before the changes. It should be, however, noted that in accordance with the applicable Instruction of the Transmission System Operation and Maintenance, the date of application submission is the date of receiving a complete application by Operator Systemu Przesyłowego GAZ-SYSTEM S.A. (point 5.3.10 of the Instruction of the Transmission System Operation and Maintenance).

Summing up, the above outlined change is significant for entities belonging to connection group A and C, dealing with distribution, which intend to connect to a transmission system. The former, unless they power vehicles with natural gas, may only do this if they reached rated power of no less than 45 000 m3/h and have not been connected to distribution network on the condition that they want to be connected to a network of less than DB 1300. The latter as well as entities powering vehicles with natural gas may only be connected to transmission network of less than DN 1300.

The Supreme Administrative Court takes the side of tax payers in the dispute for VAT deduction in the case of acquisition of commercial real property

A written justification of the judgement of the Supreme Administrative Court of 24 November 2016, case file No. I FSK 1316/15, was published. By virtue of the judgement, the Court set aside the previous judgement of the province administrative court, finding tax authorities to be right in qualifying the sale of operating commercial real property as a disposal of an organised part of enterprise which is not VAT-taxable, and not – as originally assumed by taxpayers – as a VAT taxable supply of goods.

According to the Supreme Administrative Court:
• Real property alone does not constitute an entity capable of running independent business activity, unless they are separate in the structure of the seller in financial and organisational terms. Seller’s use of real property for lease, just as in the case of such use by the Buyer, is not indicative of the fact that a transaction concerns an organised part of enterprise.
• Circumstances such as capital or personal links between the parties to a transaction, employing the legal services of the same accounting and real property management entities, concluding service agreements by the buyer immediately after the transaction do not mean that what is being sold is an organised part of enterprise.

The case at hand differed from the transaction model used on the market in that the lease agreements were terminated prior to the sale and concluded with the same tenants. Nevertheless, the main reason for the Supreme Administrative Court’s decision was that real property, without being financially and structurally separate on the seller’s side (i.e. does not constitute an organised structure), cannot be treated as an organised part of enterprise.

All one can do is hope that such arguments will be accepted by tax authorities which have been for some time now challenging the right to deduct VAT in the case of real property transactions.

In January 2017, Marcin Kroll was made partner at BSWW Legal and Tax. Marcin Kroll is a patent attorney and partner at BSWW Legal & Tax as well as a European trade mark and design attorney.

He specializes in the protection of intellectual property. He provides comprehensive services in terms of protecting and combating infringements in matters related to trademarks, industrial designs, patents, copyrights and unfair competition acts. Marcin prepares and implements IP protection strategies for his clients, also with international reach. He represents clients before the Polish Patent Office, EUIPO and the International Bureau of WIPO. He advises in terms of transfer and commercialization of technology, which in particular includes preparing and negotiating contracts transferring exclusive rights and license agreements.

He is also interested in new technologies and personal data and privacy protection. He also advises on advertising law, e-commerce and commercial law.
Moreover, his experience covers competition law, in terms of both anti-trust procedures and control of concentration procedures before the President of the Office of Competition and Consumer Protection and the European Commission.

Marcin speaks English fluently and has an intermediate command of German.

Marcin is a graduate of the Faculty of Law and Administration at the University of Warsaw. Marcin has also completed a course in American Law organized by the University of Warsaw in cooperation with the University of Florida Levin College of Law, as well as postgraduate studies about intellectual property rights at the Grocjusz Intellectual Property Rights Centre, Cracow. His Master’s thesis was recognized in the 10th Edition of the Contest for the Best Master’s Thesis on Intellectual Property organized by the Polish Patent Office.

Lawyers of BSWW Legal & Tax has provided advisory services with respect to issue of secured series C bonds of i2 Development S.A. with a total face value of PLN 30m. i2 Development S.A. is a highly dynamic developer company listed on the Warsaw Stock Exchange. The bonds are secured with a guarantee granted by a subsidiary company and a subordination agreement.

At the beginning of the year 2017, a bill was passed whereby businesses will have the right to choose whether they wish to resolve a consumer dispute amicably or whether they prefer to reach for the traditional option and go to court.

The Act of 23 September 2016 on Alternative Dispute Resolution for Consumer Disputes, which entered into force on 10 January 2017, implements a so-called legislative package comprising the directive 2013/11/EU of 21 May 2013 on alternative dispute resolution for consumer disputes and the regulation of the European Parliament and od the Council (EU) no 524/2013 of 21 May 2013 on online dispute resolution for consumer disputes.

To which disputes does the act pertain?
The act applies to disputes between consumers residing in the territory of Poland or another EU member state and an undertaking with registered office in the territory of Poland.

Is it obligatory to solve consumer disputes amicably?
To obligation to solve disputes with consumers amicably was imposed only on undertakings operating on the financial market in case of proceedings before the Financial Ombudsman.
In other cases, an undertaking can voluntarily join the consensual dispute resolution system by becoming a member of given trade organisation, having its name entered in the register kept by a relevant authorized entity or including a consent for the jurisdiction of the authorised entity in specimen contracts used in trading with consumers.

Which entities are authorised to solve disputes?
Proceedings are carried out by authorised entities, i.e., any entities which have been entered in the register kept by the President of the Office of Competition and Consumer Protection. Authorisation can be awarded to both a public entity (President of the Office of Electronic Communications, Trade Inspection or Arbitral Tribunal of Polish Financial Supervision Authority) as well as a private entity (entities set up in a given industry).

What are the methods of dispute resolution provided for in the act?
Consensual dispute resolution proceedings for consumer disputes may involve facilitating the approximation of positions of parties in order to settle a dispute (mediation), providing the parties with a settlement proposal (conciliation) and settling a dispute and imposing a solution on the parties (arbitration).
Importantly enough, only the settlement of a dispute by way of arbitration will be binding and only if the parties were informed beforehand of its binding nature as well as the consequences of non-compliance and only if they consented to such settlement.

What are the obligations of an undertaking seeking to solve a consumer dispute consensually?
If an undertaking seeks to solve a consumer dispute consensually (whether by choice or as required by a statute), it must notify the consumer of the entities authorised to settle the dispute. Such information must include at least the website address of the authorised entity and must be provided in a manner which will be clear and accessible to the consumer, also on the website of such undertaking (if the undertaking has one) and in specimen contracts concluded with consumers (if the undertaking uses such specimen contracts).
If an undertaking concludes at the same time sales contracts and service contracts via the Internet, it is also bound to provide electronic link to the ODR platform (https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.show&lng=PL).

Does the act introduce any obligations binding upon all undertakings?
Yes. In the case of rejection of a complaint filed by a consumer it is the obligation of each undertaking to inform such consumer (in writing or via any durable medium) about the entity authorised to resolve the dispute and to make a statement on the consent to having such dispute solved by said entity. It should be noted that in case of a failure to make a statement it is assumed that an undertaking consented to participate in proceedings. The act does not specify the deadline within which the above obligation should be met.
The above obligation applies to disputes which result from complaints filed after 10 January 2017.

Interruption of limitation period
In accordance with the act, initiation of consensual dispute resolution for a consumer dispute results in an interruption of limitation period of a claim serving as basis for the dispute.
The obligation to address consumer’s complaint
What is more, the act also introduces a material change in the Act of 30 May 2014 on Consumer’s Rights.
In the case of complaints filed after 10 January 2017, undertakings will be bound to respond to complaints filed by consumers within 30 days of their receipt. If an undertaking fails to meet the deadline, it is deemed that it recognized such complaint. Response should be given in writing or via another durable medium. It is worth noting that so far it had been obligatory to respond to a complaint only in the telecommunication industry (under the Telecommunication Law of 16 July 2004) and the tourism industry (under the Act of 29 August 1997 on Touristic Services).

The effects of the introduction of the consensual dispute resolution system
The purpose of the new regulations is to ensure that consumers have an alternative way of resolving disputes with undertakings. Alternative dispute resolution methods are based on time effectiveness, reduction of formalities (as compared to action in court), voluntary participation, guarantee of confidentiality and the participation of a neutral and unbiased expert. As a result, both parties have a chance of reaching a mutually satisfactory solution without the need to get into long-term and expensive court proceedings.

It is hard to say if the new regulations have the desired effect. Let’s remember that in the end it is the undertaking who decides whether or not to employ alternative dispute resolution for consumer disputes. The new regulations are therefore a kind of a trial for the market the result of which will show if companies are mature enough and open to alternative dispute resolution.