Author: support

A new article – Article 65a of the Code of Petty Offenses – was introduced under Article 2 of the “Act on the modification of the Act on specific solutions related to the prevention, counteraction, and combating of COVID-19 and other infectious diseases, and the crisis situations caused by them and other Acts” of 31st March 2020. This new article states that “whoever intentionally fails to comply with either a police officer or border guard officer’s instructions, on the basis of law, concerning specific orders of behaviour, or prevents or significantly impedes the performance of these officers’ official duties, is punishable by detention, restriction of liberty, or fine.” This provision entered into force on 31st March 2020.

This petty offense is a new criminal act and can only be committed intentionally. The introduction of this provision into the legal order is aimed at ensuring the effectiveness of the actions of Police or Border Guard officers, not only during the present epidemic, but also during the officers’ implementation of their ordinary statutory tasks.

The application of this new prohibiting act has not been limited in time, specifically not just for the duration of the epidemic status in this country. However, the introduction of the provision of Article 65a is associated with the introduction of various restrictions related to the COVID-19 virus.

 

/ADK/

As a result of epidemic situation existing in the territory of the Republic of Poland, Article 14 paragraph 1 has been introduced into the “Act on specific solutions related to the prevention, counteraction and combating of COVID-19 and other infectious diseases and crisis situations caused by them” of 2^nd of March 2020. This article states that road carriers are not liable for any damage caused in connection with the justified actions of the public authorities aimed at preventing the spread of the infectious disease COVID-19; specifically that road carriers are not liable for the lack of transport possibilities.

The abovementioned provision only applies to national carriage. Repeatedly stopping transport which is associated with border controls at international borders concerns international transport which is primarily governed by the provisions of the Convention on Contracts for the International Carriage of Goods by Road, the (CMR Convention).

In accordance with the general provisions of the CMR Convention, and specifically in accordance with Article 17 paragraph 2 of the CMR Convention, a carrier is released from liability for a delay in delivery, if this delay is caused by circumstances which the carrier could not avoid and the consequences of which could not be prevented by the carrier. Both these conditions must be fulfilled jointly. In accordance with Article 18 paragraph 1 of the CMR Convention, the existence of these circumstances must be proven by the carrier which relies on them.

Please note that no provisions have, as yet, been introduced which specify the legal consequences of the COVID-19 pandemic on a carrier’s liability for a delay in international carriage.

 

/ADK/

 

May you be blessed with succes, prosperity and happines always!

 

The RG & Co. team

At this time of the epidemic’s impact on entrepreneurs’ economic situations and the noticeable stagnation on the economic market, as well as the legal solutions which were introduced in connection to this epidemic (which are now being widely discussed in the media and press articles), it is worthwhile giving some attention to the situation concerning the current functioning of companies which, after all, cannot afford to cease their corporate activities.

As a result of the epidemiological situation in Poland, on 31 March 2020 the Polish Parliament adopted the act amending the Act on special arrangements for the prevention, countering and combating of COVID-19, other infectious diseases, and the crisis situations caused by them, as well as certain other acts which, through the provisions of Article 27, have amended the Polish Commercial Companies Code. The introduced solutions are primarily aimed at enabling the bodies of capital companies to be able to meet and adopt resolutions by use of distance communications.

The new regulations concerning limited liability companies now make it possible for management board members to meet by means of direct remote communication. The new regulations also allow for resolutions to be adopted either in writing, or by using the aforementioned means of communication, as well as for members of management boards to be able to adopt resolutions by casting their votes in writing through other members of their management board. All of these solutions are applicable unless otherwise stated in the articles of association.

A similar solution has also been adopted in relation to the rules for participating in supervisory board meetings, allowing voting in writing through another member of the supervisory board during the adoption of resolutions, as well as adopting resolutions in writing or using distance communication as long as, in both cases mentioned, the articles of association do not stipulate otherwise. An important change is also the possibility to adopt resolutions in the abovementioned modes in relation to the election of the chairman and vice-chairman of the supervisory board, the appointment of members of the management board, as well as the dismissal and suspension of these persons.

Article 234¹ concerning participation in shareholders’ meetings by use of electronic means of communication which was introduced in September 2019 to the Polish Commercial Companies Code, has also changed and now currently stipulates slightly different conditions for holding meetings, including the conditions required for supervisory boards (or partners) to establish the rules of participation in shareholders’ meeting. In addition, when these bodies plan to assemble using electronic means of communication, the requirement was introduced that information within the convening notice would have to indicate the manner of participation, the method of communication during the meeting, and the way in which members can exercise their voting rights and raise objections towards any resolutions being adopted at the time of the meeting itself.

It is also worth noting that article 98 § 1 of the discussed Act has additionally introduced the possibility of applying amended provisions in relation to participation in shareholders’ meetings in accordance with article 234¹ of the Polish Commercial Companies Code. This also applies in relation to meetings convened before the date this Act entered into force, provided that the person who convoked them decided to carry it out in this manner, and informed about it in the manner stated for convening shareholders’ meetings no later than four days before the day of the meeting.

Regulations of a similar nature to those relating to limited liability companies were also adopted in relation to join-stock companies.

All of the above-described changes were introduced into the Polish Commercial Companies Code which entered into force on the day of the promulgation of the Act, i.e. 31 March 2020.

 

/AG/

In conjunction with the introduction of the epidemic status in the territory of the Republic of Poland, and the periodic border control which is related to this epidemic status, the Ministry of Maritime Economy and Inland Shipping has undertaken actions to minimise the occurrence of any possible negative effects on the inland navigation industry.

The Ministry has requested the relevant state authorities to exempt the inland waterway vessels from the 14-day quarantine, and to allow inland waterway vessels to cross the border with the Federal Republic of Germany on the Oder. At the same time, the Ministry has started consulting on a program of proposals concerning solutions for the assistance program for Polish inland carriers with the Polish Inland Shipowners Association.

These activities, which have been undertaken by the Ministry of Maritime Economy and Inland Shipping, strive to ensure an uninterrupted supply chain and provide protection for the economic situation of employees and employers in the inland navigation sector.

 

/ADK/

In the first half of March, during the European Union High-level Ministerial Maritime Conference in Opatija (Croatia), another three countries, including Poland, signed the “Torremolinos Declaration”, under which States publicly indicate their determination to ratify the Cape Town Agreement from 2012 by the 10^th anniversary of its adoption, i.e. until October 11, 2022.

The Torremolinos Declaration was opened for signature at IMO’s October 2019 conference in Torremolinos (Spain), and until now, besides Poland, it has been signed by countries such as Belgium, France, Germany, Netherlands, Great Britain and China.

The Cape Town Agreement outlines regulations designed to mandatory safety measures for crews of fishing vessels over 24 metres in length and ensures a level playing field for the fishing industry while establishing standards for fishing vessels of 24 metres in length and over. It covers key parameters such as stability and associated seaworthiness, construction of fishing vessels, machinery and electrical installations, life-saving devices and communication equipment. It also aims to combat illegal, unreported and unregulated fishing.

Although the Agreement was adopted in 2012, it will enter into force 12 months after at least 22 States, with an aggregate 3600 fishing vessels of 24 meters in length and over operating on the high seas have expressed their consent to be bound by it.

Presently, 14 countries have ratified the Cape Town Agreement, including Belgium, France, Germany, the Netherlands and Norway.

 

/JF/

Since 1 January 2020, the Act of 31 July 2019 amending certain acts to reduce the regulatory burden has been in force. Under the a.m. Act, Article 21a was introduced in the Traders’ Law, which grants entrepreneurs a new right to right to make mistake.

The amendment applies to traders entered in the Central Register and Information on Business Activity who infringe the regulations of law related to their business activity within 12 months from the date of commencement of the business activity for the first time or again after at least 36 months from the date of its last suspension or termination.

Regarding to the amendment, before punishing the trader with a criminal fine or an administrative fine, the authority will call on the entrepreneur to remove the found infringements of the law and possible consequences of such infringements within the time limit set by the authority.

An entrepreneur who removes the infringements and their effects within the specified period will not pay the penalty.

 

/JF/

From 1^st January 2020, all joint-stock companies and limited joint-stock partnerships which are in the business of trading now have a new, additional obligation to have their own websites.

The amendment to the Commercial Companies Code which was set in 30^th August 2019 introduces a regulation concerning “joint-stock companies and limited joint-stock partnerships running their own websites as well as also publishing on said websites in the places designated for communication with their shareholders, all and any announcements which are required by law, or by their statutes.”

The announcements published on the website should include those listed in Article 206 § 1 of the Commercial Companies Code such as information about the company, the registered office and address of the company, the KRS number, the competent registry court, the NIP number, and the amount of the company’s share capital. Additionally, the company should publish information about any anticipated Annual General Meetings (AGM), drafts of resolutions, financial statements, and opinions of statutory auditors.

In the case of a failure to provide the relevant information concerning an AGM, any shareholder who is absent from this AGM will obtain the basis for filing a petition for the nullification or revocation of the adopted resolution.

Furthermore, for a lack of current information, or for providing spurious information, the registration court can punish the management board members authorised to represent the company with a fine of PLN 5,000.

The explanatory memorandum to the amendment indicates that this solution should improve the protection of minority shareholders’ rights and should limit the risk of a shareholder not being informed about issues that are important to them. Running such a website will not replace the requirement to publish announcements in the Court and Economic Monitor.

The website address should be reported to the National Court Register.

 

 

/ADK/

On March 1, 2020, the Act amending the Commercial Companies Code enters into force. The main change is the introduction of a new type of capital company into Polish law. The Polish legislator has introduced a simple public limited-liability company (PSA for short) in addition to a limited liability company, and a public limited-liability company.

A PSA combines the features of a partnership with those of a capital company. As in partnerships, it will be possible to contribute work or services to a PSA. A PSA combines the mechanism of raising capital through the issue of shares with capital companies, especially public limited-liability companies.

The primary characteristic of a PSA is the reduced number of formalised rules relating to the functioning of the company’s structures, as well as a greater simplification connected to trading in the company’s shares.

A PSA can be formed by one or more people but with the exception of a sole proprietorship limited liability company.

 

 

/JF/

 

May the holiday spirit be with you and your family today and throughout the New Year. Merry Christmas!

 

The RG & Co. team