WKB’s lawyers have analysed the most important provisions of the Anti-Crisis Shield Act in Poland. The Anti-Crisis Shield is a special law which implements a range of various solutions aimed at combatting the epidemic crisis, amending or supplementing many other acts and regulations, which will affect many areas of companies’ business activities.
In connection with the adoption of amendments to the Anti-Crisis Shield framework (15 May 2020), we provide you with expanded and verified materials regarding various areas, including a set of analyses on the law as of 21 May 2020.
Therefore, we provide a collection of materials consisting of short summaries of the most important changes in a number of fields, followed by expert studies. We also draw your attention to certain aspects which were not included in the Shield’s provisions, often against the recommendations of entrepreneurs, and which at the same time may create risks for business activities.
OPERATION OF COMMERCIAL COMPANIES
- New rules for remote participation and the adoption of resolutions at shareholders’ meetings and meetings of other company bodies;
- Extension of the deadline to draft and approve financial statements for entities required to prepare them;
- Extension of the deadline for the first registration of beneficial owners in the Central Register of Beneficial Owners (CRBR) for companies registered before 13.10.2019;
- Extension of the deadlines for fulfilling obligations related to shareholders’ register and obligatory dematerialisation of shares in non – public joint-stock companies and limited joint-stock partnerships [Shield 3.0 – new];
- New regulations concerning adoption of resolutions by supervisory boards on matters for which the articles of association or statute of the company provide for secret ballot;
- Change in the method of subscription for shares in joint-stock companies;
- Modification of liability of members of the company’s organs.
- Reduced working hours and lower remuneration for furloughed employees;
- Subsidies are available to micro, small and medium-sized entrepreneurs from district governors;
- Deferred payment of social security contributions (ZUS) / payment of contributions in instalments through prolongation fee exemptions;
- Partial exemption from social security contributions for entrepreneurs employing up to 49 people and exemption for sole entrepreneurs [Shield 3.0 – change];
- Changes to the conditions for employees’ working time reduction;
- Changes regarding the possibility to change the organisation of working time by strategic sectors employers.
- Extension of the deadline to draft and approve annual financial statements by 3 months (where the financial year is concurred with the calendar year, these statements should be drafted by the end of June 2020 and approved by the end of September 2020);
- Deferral of the obligation to pay PIT advances on remuneration collected in March and April 2020 until 1 June 2020;
- (Procedural) tax deadlines will resume or commence to run from 23 May 2020 [Shield 3.0 – new];
- Taxpayers who will suffer a tax loss in 2020 due to COVID-19 and who obtain total revenues in 2020 at least 50% lower than in 2019 will be able to make a one-time reduction in the earned income for 2019 by the amount of this loss, but no more than PLN 5,000,000;
- Other changes concerning taxes: including VAT, PIT and CIT, tax audits and accounting.
- From March 31 2020, the course of the procedural and judicial deadlines in court proceedings (including administrative court proceedings), as well as deadlines for enforcement, criminal, criminal fiscal, petty offence, administrative, tax, customs and fiscal audits and other proceedings conducted under separate/relevant laws and also deadlines of substantive administrative law, has not started or was suspended [Shield 3.0 – change];
- From 23 May 2020, procedural and judicial deadlines and also of substantive administrative law, that have not started will start running and suspended deadlines will start running further [Shield 3.0 – new];
- New procedural and judicial deadlines, and also deadlines of substantial administrative law, starting after the introduction of the statute amending the Covid-19 law, i.e. after 18 May 2020, shall run in general grounds without applying the Covid-19 laws [Shield 3.0 – new];
- During a state of emergency or an epidemic declared due to COVID-19 and within one year of the appeal of the last one, hearings and public hearings in civil and administrative matters will be carried out using technical equipment enabling them to be conducted at a distance with simultaneous transmission of video and sound [Shield 3.0 – new];
- Granting the President the right to order a proceedings in camera in civil and administrative court proceedings if certain conditions are met [Shield 3.0 – new];
- If the proceedings to take evidence in the case have been carried out in its entirety, the court may, after receiving written statements from the parties or participants in the proceedings, close the hearing and give its decision in the proceedings in camera [Shield 3.0 – new];
- The possibility to consider an appeal brought before 7 November 2019 in a proceedings in camera if certain conditions are met [Shield 3.0 – new];
- Motions to grant or change security are to be considered by a single judge in a closed session – without holding a hearing;
- No presumption of the delivery of correspondence during the state of epidemic threat or state of epidemic and within 14 days of their revocation. This regulation does not apply to correspondence sent by the Courts and Tribunals, the prosecutor’s office and other law enforcement agencies and court bailiffs;
- During the state of epidemic threat or state of epidemic and within 14 days of the revocation of those states – extension of the time limit to collect registered mail, even if more than 14 days after its second notification. This regulation does not apply to correspondence sent by the Courts and Tribunals, the prosecutor’s office and other law enforcement agencies and court bailiffs;
- The possibility of delivering correspondence by email to persons holding a trusted profile, in the form of scans, with the addressee’s prior consent to such a form of deliver
RESTRUCTURING AND BANCRUPTCY
- Suspension of the deadline to file an application for bankruptcy during the states of epidemic threat or epidemic;
- Changes regarding the deadline to file for bankruptcy apply only to debtors who are insolvent due to COVID-19;
- Applications for the opening of restructuring proceedings, matters following the opening of restructuring proceedings, cases for the declaration of bankruptcy, and matters following a declaration of bankruptcy are included in the catalogue of urgent cases which the courts may consider during the states of epidemic threat or epidemic.
FINANCIAL ASSISTANCE PROVIDED BY THE BGK
- Possibility for the Bank Gospodarstwa Krajowego (BGK) to grant sureties and guarantees under state aid provisions to medium and large businesses up to the maximum amount of 80% of the loan amount;
- This facility will be used to improve the liquidity of existing bank borrowers when disbursing additional working capital loans rather than to grant loans to new customers;
- The BGK may treat guarantees or sureties granted by it as “special loan collateral” within the meaning of Art. 70(2) pt. 1 of the Banking Law.
SUPPORT TO ENTERPRENEURS FROM THE INDUSTRIAL DEVELOPMENT AGENCY (ARP)
- Ability to change the terms and conditions or repayment date of credit (loans) granted before 8 March, applicable to only small and medium-sized businesses;
- Available to all businesses in difficult financial situations as a result of COVID-19;
- Not available to companies which have been declared bankrupt or in respect of which restructuring proceedings have been opened, or for which applications to open such proceedings have been filed (more details in the section on restructuring and bankruptcy);
- Various forms of reimbursable support – among others, loans, guarantees, sureties;
- Goal – to ensure financial liquidity for the duration of the state of epidemic threat or state of epidemic; for a period of 12 months following the revocation of this state; until the negative economic effects are resolved;
- Amount and type of support – varies depending on the actual financial consequences incurred by the business in connection with the declaration of a state of epidemic threat or state of epidemic, as well as the scale of the business activity undertaken;
- Prohibition on the use of support granted to repay liabilities to, among others, parent companies and subsidiaries;
- Applications processed without delay – within 14 days.
RULES FOR GRANTING SUPPORT BY THE POLISH DEVELOPMENT FUND
- Possibility to apply for support from the PFR available to all enterprises (micro-, small and medium-sized, and large), with some exceptions (among others, enterprises subject to bankruptcy, liquidation or restructuring proceedings);
- In the case of micro- and small and medium-sized enterprises, support is in the form of a subsidy, repayable within 24 months (if certain conditions are met, up to 75% of the subsidy may be redeemed;
- Support may be allocated to cover business operating costs (including the repayment of loans), with the exception of acquiring other enterprises and making settlements with affiliates;
- For large enterprises, the following forms of financing are available: liquidity financing (loans and bonds), preferential financing (partially non-repayable preferential loans) and investment financing (taking up shares or stock);
- Aid to micro and small and medium-sized enterprises has been provided since the end of April 2020 (aid for large enterprises will be granted following European Commission approval) [ Shield 3.0 – change].
STATE AID – FINANCIAL INSTRUMENTS
- Possibility to grant every entrepreneur aid, for current business needs or investment purposes, in the form of a loan, surety or guarantee;
- Aid is granted for a maximum of 6 years, with the interest rate and commission fee being lower than the market rate;
- Loans may not exceed twice the cost of remuneration paid by the entrepreneur in 2019 or 25% of the entrepreneur’s total turnover in 2019;
- Support is granted until the end of 2020.
- Limiting the liability of beneficiaries for irregularities resulting from the occurrence of COVID-19;
- Possibility to amend co-financing agreements, even if amendments would affect the fulfillment of project selection criteria;
- Extension of project implementation deadlines and changes to the control and recovery of irregular expenditure.
- Ability to change the terms and conditions or repayment date of credit (loans) granted before 8 March, applicable to only small and medium-sized businesses;
- Banks may extend or modify financing already granted notwithstanding the loss of creditworthiness (e.g. Article 70 of the Banking Law) while retaining the ability to terminate credit (loan) agreements;
- The KNF has recommended that financing not be renewed on terms as of 31.12.2019 for a period of more than 1 year.
- KNF has allowed banks to take simplified positive liquidity forecasts into account if they increase the amount of financing to existing customers above the level available on 31.12.2019.
- The maximum value set for non-interest costs for consumer loans limited to 365 days applies only to new agreements concluded during the period covered by the Anti-Crisis Shield;
- For loans with a repayment term of less than 30 days – non-interest costs are capped at up to 5% of the total loan amount (calculation formula in the Shield), with a cap of up to 45% of the total loan amount for longer loans;
- Impact of the Shield’s provisions on new loans from the same entity, granted within 120 days of the previous disbursement;
- Infringements of the Shield may be treated as practices violating consumers’ collective interests.
OPERATION OF SELECTED BODIES IN CAPITAL MARKET ENTITIES AND THE SUPERVISORY AUTHORITY
- Introducing the possibility to remotely participate and adopt resolutions at meetings and boards held by the participants of investment funds;
- Permitting the remote participation and adoption of resolutions at bondholders’ meetings (the exclusion of the possibility to remotely participate must be explicitly stated in the terms and conditions of the bond issue);
- Permission for the issuer to attach financial statements “older” than 15 months to a bond purchase proposal – if the Minister of Finance issues the relevant regulation;
- Introducing the possibility for the Financial Supervision Authority (KNF) to issue administrative decisions adopted by way of resolutions in the form of electronic documents;
- Shortening the period within which a company operating a regulated market should inform its participants of changes in the rules of the regulated market or other regulations applicable on the market operated by that company, for the duration of a state of epidemic threat or state of epidemic.
THE RULES AND THE CATALOGUE OF SANCTIONS
- Severe administrative fines for the violation of orders and prohibitions issued during the epidemic can be still imposed;
- Changes in restrictions on business operations modify only the perimeters of the risk of a fine;
- Penalties issued are immediately enforceable.
NEW OBLIGATIONS FOR TELECOMS OPERATORS AND INTERNET SERVICE PROVIDERS
- Obligations of telecoms operators:
> provision of the location data of persons under quarantine – to the Minister of Digital Affairs, at the request of the supervisory authority;
> provision of anonymised location data on all persons – at the request of the supervisory authority.
- Extension of the deadline to fulfil information and reporting obligations to the Office of Electronic Communications;
- Uncollected letters are presumed undelivered during a state of epidemic threat or state of epidemic.
- Support and relief in the form of state aid, aimed at remedying serious disturbances in the economy, and de minimis aid, granted from national budgets – including, among others, sureties and guarantees, loan repayments and tax exemptions;
- Broad potential for state interference in companies’ pricing policies. The minister competent for the economy can issue a regulation setting maximum prices, or maximum wholesale and retail margins, for a wide range of goods. High fines may be imposed for prices or margins higher than those set;
- Repeal of regulations regarding the suspension of time limits provided for in administrative law – application of general rules for administrative matters resumes [Shield 3.0 – change];
- Delay in the commencement of legislation granting quasi-consumer protections to sole proprietors.
REAL ESTATE AND CONSTRUCTION PROCESS
- Procedural, judicial and administrative time limits (including those related to decisions in the construction process) start to commence even if suspended [Shield 3.0 – change];
- Property tax exemptions for part of 2020 may be granted by municipal councils;
- Payment date for the annual fee for perpetual usufruct deferred until 30 June 2020;
- Temporary expiry of parties’ obligations under lease agreements for premises in commercial facilities with sales areas exceeding 2000 m2;
- Extension of lease terms until 30 June 2020 and limitation of the ability to terminate lease agreements or agreements on the amount of rent;
- Exclusion of the principle of deadline suspension for planning procedures relating to zoning and the issue of land development decisions;
- Suspension of the obligation to obtain an operating permit during the state of epidemic threat or state of epidemic;
- Expanding the possibility for authorities to issue letters in administrative proceedings in electronic form;
- Extension of the deadline for the payment of the transformation fee and annual perpetual usufruct fees and expansion of the catalogue of entities to which property tax exemptions or deferrals apply.
- Deadlines to enter the auction system extended by 12 months from the relevant commitment period’s expiry date;
- Prohibition on the suspension of energy supplies.
- Public procurement law does not apply to purchases related to counteracting COVID-19 (where there is a risk of the disease spreading rapidly or if warranted to protect public health);
- Public procurement contracts may be amended due to the occurrence of circumstances related to the virus, regardless of whether the conditions set in public procurement law are met; possibility to waive the application of contractual penalties;
- The National Appeals Chamber resumes delivering judgements after 2 months of being inactive [Shield 3.0 – changes].
- Extension of deadlines for the submission of annual reports (formerly 30 June 2020):
- until 11 September 2020 – for entities obliged to prepare reports on products, packaging and the management of waste arising from them and for electrical and electronic equipment recovery organizations for the year 2019;
- until 31 October 2020 – for entities obliged to prepare reports on waste generated and waste management for the year 2019 (with several exceptions);
- Removing the obligation to enter information in the Waste Database;
- Extension of the validity of waste management decisions pending the resolution of the case – if a decision’s validity expires during the state of epidemic threat and an application was filed for the amendment of the decision obtained or for the issue of a subsequent decision;
- Deferral of the obligation to audit electrical and electronic equipment recovery organizations, packaging recovery organizations and processing plant operators for the year 2019 – until 30 September 2020 (normally by 30 April). A copy of the report must be forwarded to the competent authorities (the Regional Inspectorate for Environmental Protection (WIOŚ) & the Marshal’s Office) by 15 November 2020 (normally by 30 May) [Shield 3.0 – new];
- Water Law – extending the period for the performance of a risk analysis and the submission of an application to establish protection zones covering direct protection areas and indirect protection areas from 3 years to 5 years [Shield 3.0 – new].
FUNCTIONING OF COOPERATIVES, ASSOCIATIONS, ASSOCIATIONS, FOUNDATIONS AND OTHER ENTITIES
- New regulations concerning participation in meetings and adoption of resolutions by governing bodies of cooperatives, associations and foundations by using electronic means of communication during the pandemic;
- Adoption of resolutions by collegial bodies of professional self-governments by using electronic means of communication during the pandemic;
- New regulations concerning remote participation in meetings of members or delegates of polish sports associations and the possibility of supplementing the composition of general meetings of the members (delegates) during the pandemic;
- Extension of the deadline for cooperatives, associations, foundations and other legal persons obliged to prepare and approve financial statements for 2019;
- Planned extension of the obligation to register information with the Central Register of Beneficial Owners to foundations, associations registered in the KRS and cooperatives – in legislative process.
WKB’s experts and our coronavirus legal aid team remain at your disposal.