Restrictions on business operations in retail developments with a sales area of over 2,000 square metres, introduced under the Regulation of the Council of Ministers of November 06, 2020

Below you will our analysis of the Regulation of the Council of Ministers, dated November 06, 2020 (“Regulation 06/11”), in terms of the restrictions, bans and orders related to the state of epidemic, which are relevant for retail operations in commercial developments (collectively referred to as the “Restrictions”).

I. CONCLUSIONS

1. When do the Restrictions apply?

The Restrictions are in force between the effective date of Regulation 06/11, i.e. November 07, 2020, and November 29, 2020.

2. What types of developments/facilities are covered by the Restricitons?

The Restrictions apply to business operations in retail developments with a sales area of over 2,000 square metres.

This means that they concern:
– shopping malls;
– retail parks;
– mixed-use developments;
– other buildings where retail operations are conducted,
so long as the total sales area in such developments exceeds 2,000 square metres.

3. Who are the Restrictions targeted at?

The Restrictions are targeted at the owners and tenants of retail premises, unless their operations are not banned.

4. What is the nature of the Restrictions?

The Restrictions are universal and negative in nature, which basically means that it is not allowed to engage in retail operations, unless the sale of specific products or services is expressly permitted under Regulation 06/11.

5. What bans have been implemented for retail sales?

The owners or tenants of retail units located in the developments referred to in section 2 above are not allowed to conduct any retail operations unless such operations predominantly involve the sale of:
– food;
– cosmetics other than fragrances and beauty products;
– toiletries;
– cleaning agents;
– medicinal products (incl. ones sold at pharmacies);
– medical devices;
– foodstuffs for particular nutritional uses;
– books or newspapers/magazines;
– construction / DIY products;
– pet supplies;
–  telecommunications services;
– vehicle parts and accessories;
– fuels.

A given entity may only perform business operations in the developments referred to in section 2 hereof if those operations are focused primarily on the sale of any of the above.

6. What bans have been implemented for services?

The owners or tenants of retail units located in the developments referred to in section 2 above are not allowed to perform any services unless their operations predominantly entail:
– hairstyling and cosmetic services;
– eye care services;
– medical services;
– banking services;
– postal, logistics and package delivery services;
– insurance services;
– repair of motor vehicles, tires and inner tubes;
– car wash services;
– locksmith services;
– shoe repair services;
– tailoring services;
– dry cleaning services;
– food services consisting exclusively in the preparation of food for takeaway and delivery.

A given entity may only perform business operations in the developments referred to in section 2 hereof if those operations are focused primarily on any of the services listed above.

7. Ban on the operation of retail kiosks

It is completely forbidden to offer any products/services through mall kiosks. The ban is universal in nature, meaning that it applies to all entities and all sorts of operations (retail sales and services), with no exceptions.

8. Who is covered by the Restrictions?

When it comes to retail sales and services, the Restrictions are targeted at the owners and tenants of retail units.

They apply to entities that are the owners or tenants of commercial premises and conduct business operations in them.

As regards retail kiosks, the ban applies to all entities that operate such kiosks.

The Restrictions are not targeted at the owners, managers or operators of the developments referred to in section 2 above, unless they also conduct business operations that are not expressly permitted.

9. Do retail developments with a sales area of over 2,000 square metres have to be closed until November 29, 2020?

Regulation 06/11 does not oblige the owners, managers or operators to close such buildings. As mentioned above, the Restrictions are directed at entities that actually perform retail operations.

II. OTHER CHANGES ARISING FROM REGULATION 06/11, WHICH ARE RELEVANT FOR THE OWNERS AND OPERATORS OF RETAIL PREMISES

§7 section 4 of the Regulation of the Council of Ministers of October 09, 2020 has been amended as follows:
– retail developments with a sales area of over 2,000 m2,
– retail sites, as defined in article 3 section 1 of the Retail Limitations on Sundays, Public Holidays and Some Other Days Act of January 10, 2018, and
– postal services facilities
can only allow:
1) 1 person per 10 square metres – for developments/sites with a sales area of no more than 100 square metres;
2) 1 person per 15 square metres – for developments/sites with a sales area of over 100 square metres.

Pursuant to the aforesaid Regulation of October 09, 2020 (as amended on October 23, 2020), the maximum number of people in item 1 above was 5 per cash-desk (excl. staff).

III. LEGAL BASIS

This Alert has been prepared on the basis of the following legal regulations:
– Regulation issued by the Council of Ministers on November 06, 2020, amending the regulation establishing specific limitations, orders and bans in relation to the state of epidemic;
– Regulation issued by the Council of Ministers on October 09, 2020, establishing specific limitations, orders and bans in relation to the state of epidemic.

IV. ASSUMPTIONS AND RESERVATIONS

1. This Alert is only based on the Polish legal regulations that are in effect as of the Alert date. It is limited to the scope specified in part I hereof.

2. This Alert concerns issues that may be subject to decisions / rulings made by competent courts or administrative authorities. The Alert shall not be construed as a guarantee that any potential decisions / rulings issued by competent courts or administrative authorities will be consistent with the information provided herein.

Please feel free to contact us for any questions you might have.

Michał Wielhorski
Attorney-at-law | Managing Partner
michal.wielhorski@actlegal-bsww.com
+48 605 911 303

Alicja Sołtyszewska
Legal counsel | Partner
alicja.soltyszewska@actlegal-bsww.com
+48 604 608 728

Izabela Żmijewska
Attorney-at-law | Senior Associate
izabela.zmijewska@actlegal-bsww.com
+48 603 300 382