Author: support

In a commercial proceedings for payment of compensation for alleged improper performance of a contract of carriage, our Law Firm represented a large international road carrier acting as the defendant (consignor). The proceedings concerned a claim for damages demanded from our client by an actual carrier punished with an administrative penalty for performing the transport without the required permit.

The trial before the court of first instance, including the exchange of legal arguments between legal counsels of both parties, was mainly reduced to the interpretation of the several provisions of the CMR Convention (i.e. the Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956). This Convention, as the legal basis for the claim, was also indicated by the plaintiff (actual carrier). The court issued a judgment awarding compensation, and based its whole decision on the tort liability regime.

Our Law Firm filed an appeal, which – apart from other violations in the field of substantive and procedural law – was based on the most far-reaching objection, namely the change of the legal basis of the claim (from contract to tort), although such change was in a contrary to the request of the lawsuit, and deprived the defendant of right to defend its rights.

The second instance court shared the defendant’s objections indicated in the appeal we had prepared. According to the court, it was unacceptable to issue a judgement based on a completely different legal basis than the one around which the whole trial was conducted. The court of second instance declared the proceedings invalid and overruled the judgment and remanded the case to the court of first instance for re-examination.

It should be noted that after the extensive amendment to the Code of Civil Procedure, which entered into force in November 2019, the courts are now given the opportunity to warn the parties about the potential possibility of giving a ruling based on a different legal basis.

 

/KH/

Please be informed that our office will be closed on 1st November due to a Polish national holiday.

A number of our employees will, however, still be accessing their e-mails. Should you have any urgent matters that require attention, please feel free to contact our partners on their mobile phones (the contact details are available in the “Our team” section of our website).

 

/SEK/

On 1^st March 2019, the amendment provided for in the Act of 9 November 2018 amending certain acts in order to introduce simplifications for entrepreneurs in the tax and economic law entered into force. Based on the above-mentioned law, into the Commercial Companies Code has been added new Article 195 § 1¹.

In accordance with the new regulations, if in a particular financial year an advance payment towards the expected dividend was paid to shareholders and the company recorded a loss or made a profit in the amount lower than the advance payments, the shareholders return the advance payments in:

1. completely – in the case of recording a loss, or
2. part corresponding to the amount exceeding the profit attributable to the shareholder for a given financial year – if the profit is lower than the advance payments on account of the expected dividend.

Regarding to Joint Stock Company, the legislator has refrained from making any changes in above-mentioned area.

 

/JF/

On 18^th January 2019 BIMCO, the world’s largest international shipping association, published annual report named “Dry Bulk Terminals Vetting Report”. The report collected input from 144 ships covering 381 terminals.

The questionnaire consists of 36 specific questions divided into the following five main categories:

1. mooring and berth arrangements,
2. terminal services,
3. terminal equipment,
4. information exchange between the ship and the terminal,
5. loading and unloading handling.

In the 2018 report five ports were distinguished which were rated the highest. The first place was taken by the sea port in Szczecin. The ports of Quebec (Canada), Newcastle (Australia), Gladstone (Australia) and Ciénaga (Colombia) were singled out.

 

/JF/

On 7^th January 2019 at IMO Headquarters in London, Ambassador of Costa Rica to the United Kingdom, Rafael Ortiz Fábrega, met with IMO Secretary-General, Kitack Lim to deposit the instrument of accession to the International Convention on Maritime Search and Rescue (SAR). Thus, Costa Rica became the 112^th State which accede the treaty.

Currently, the Convention’s signatories represent over 80% of the world merchant shipping tonnage.

 

/JF/

Amendments to the Act of 26 June 1974 – Labour Code entered into force on 1 January 2019.

The amendment provides, among other things, that the payment of remuneration is to be made to the payment account indicated by the employee, unless the employee has submitted an application for payment of remuneration to their own hands – in cash. Therefore, in Article 22 § 2 has been added point 3, according to which the employer has the right to require the employee to provide the payment account number if the employee has not submitted the application for payment of remuneration to his own hands. Until the end of 2018, as a rule a remuneration used to be paid to employee’s in cash, unless he applied for payment to a bank account.

Another novelty that came into force on January 1, 2019 is the change of art. 94 point 9a, regarding employee documentation. According to the aforementioned provision, the employer is obliged (in particular) maintain and store paper or electronic form on matters related to the employment relationship and personal files of employees. Both forms of conducting the above documentation is now equivalent. However, what is important, the digital representation of the documentation will require an electronic signature or an electronic seal confirming the compliance of the digital representation with the paper document.

In addition, the layout of the employee records has been changed – to the previously applicable parts A, B and C, legislator added part D, which is to contain documentation related to the employee’s liability for housekeeping. The hitherto binding the decree of 28 May 1996 on the scope of keeping records by employers in matters related to the employment relationship and the manner of keeping personal records of an employee has therefore lost its validity, and in its place, on 1 January 2019, a new act – the Minister of Family, Labour and Social Policy Decree of 10 December 2018 on employee documentation – came into force.

 

/JF/

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

 

The RG & Co. team

The Economic Partnership Agreement signed on 17 July 2018 between the European Union and Japan was approved by the European Parliament on Wednesday 12 December 2018.

This agreement provides for the abolition of most of the existing customs duties, as more than 90% of EU exports to Japan will be free of customs duties. This applies in After full implementation of the agreement, the abolition of customs duties will affect as much as 97% of imports from the EU.

In addition, it opens up services markets, in particular for financial services, e-commerce, telecommunications and transport.

After the endorsement of the trade deal by the European Parliament, Council is set to give its final go-ahead on 21 December which allows the agreement to enter into force on 1 February 2019.

 

/JF/

On 23 November 2018 the Senate of the Republic of Poland adopted without amendment the Act of 9 November 2018 amending the Sea Fisheries Act and certain other acts.

The amendment provides, among other things, for the establishment of a central government administration body appointed by the Prime Minister at the request of the minister in charge of fisheries and subordinate directly to this minister – the Chief Inspectorate for Sea Fisheries with its seat in Słupsk in place of the currently operating three regional inspectorates: in Gdynia, Słupsk and Szczecin and also 14 local branches.

The purpose of the amendments is to harmonise the way in which inspections of commercial and recreational fishermen are carried out, by establishing a single body appointed to control compliance with the rules on marine fisheries and on the organisation of the fish market.

 

/JF/

On 1 November 2018 the Republic of Poland and the Kingdom of Denmark have reached a consensus on the route of the maritime border in the Baltic Sea.

After many years, Denmark and Poland have agreed on a maritime border in the Baltic Sea which, after the entry into force of the relevant Agreement, will divide the continental shelves and the exclusive economic zones of both countries in the southern part of the Baltic Sea of Bornholm. These regulations seek to ensure legal clarity in the Baltic Sea Region.

In order for the agreement to enter into force as a result of this agreement, it will be necessary to be accepted in the internal procedures of both countries.

/JF/