Our experts continue to monitor and analyse all new legislative proposals in Poland which can affect business during the pandemic.
In connection with the adoption of amendments to the Anti-Crisis Shield framework 4.0 (24 June 2020), we present materials, including a set of analyses on the law as of 1 July 2020.
The changes introduced by the Shield 4.0 concern in particular:
- operation of commercial companies,
- labour law,
- foreign investments,
- commercial and consumer loans,
- real estate,
- new powers granted to the President of the OCCP (UOKiK), and
- functioning of cooperatives, associations and foundations.
We invite you to read on.
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;
- 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;
- Modification of terms related to the dematerialization of shares for companies in bankruptcy.
- Clarification of rules regarding remote work;
- Granting employees overdue vacation leave;
- Termination of non-competition agreements;
- Expanding the range of employers entitled to implement furloughs or reduce work hours;
- Subsidies on account of wages independent of furloughs or reductions to work hours;
- Changes regarding social benefits provided by employers;
- Limiting the value of benefits paid in connection with the termination of an employment agreement.
- The deadline to submit transfer pricing information (or draw up local documentation) and a statement on the drawing up of local transfer pricing documentation are extended until 31 December 2020;
- Contractual penalties and damages paid on account of defects in goods supplied (or work and services performed) and delays in the delivery of goods free of such defects (or delays in the removal of defects in goods supplied or work and services performed) may be included in tax costs, if such defects or delays occurred in connection with COVID-19;
- Subsidies to interest on bank loans will not be considered as tax revenue for entrepreneurs.
Simplified restructuring proceedings
- Shield 4.0 grants debtors the ability to make use of simplified restructuring procedures until 30 June 2021;
- Simplified restructuring proceedings are opened by publishing a notice in the Court and Commercial Gazette (Monitor Sądowy i Gospodarczy) once an agreement is concluded with a restructuring advisor, who will act to supervise the arrangement, and the debtor draws-up the list of claims, the list of disputed claims and prepares arrangement proposals;
- The arrangement must be approved within 4 months of the publication of a notice in the Court and Commercial Gazette;
- Debtors have been granted broad protections by, among others, the suspension of enforcement proceedings, and a prohibition on terminating key agreements (such as tenancies, loans and leases, among others).
- Ability to change the terms and conditions or repayment date of credit (loans) granted before 8 March;
- 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.
- Possibility to grant interest rate subsidies on credits to entrepreneur in a difficult financial situation as a result of COVID-19, in order to ensure financial liquidity;
- The subsidies shall represent all or part of the interest due to the bank up to a maximum of 2 percentage points (depending on the size of the enterprise);
- Subsidies shall apply to credit agreements concluded from 24.06.2020 as well as previously concluded and adjusted to statutory conditions;
- Subsidies are paid for a period up to 12 months from the date of conclusion of the credit agreement with subsidy;
- Credits with a subsidy are granted until the end of 2020.
- 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.
- Possibility to suspend for up to 3 months the repayment of the loan (the principal as well as interest), without charging interest or other charges (excluding insurance fees) (Credit Holidays).
“Statutory” credit holidays
- Shield 4.0 introduces, so-called, credit holidays, meaning the ability to suspend loan repayments for up to three months, without accruing interest or other fees, for persons who lost their employment or other main source of income after 13 March 2020.
- The Polish Competition Authority – the President of UOKiK (Prezes Urzędu Ochrony Konkurencji i Konsumentów) has found that the banking sector’s current practices regarding assisting clients in repaying loans, in light of the gradual economic lockdown, may threaten the borrowers’ rights as consumers. Thanks to the President’s proposal, credit holidays have been included in Shield 4.0 and have thus become “statutory” in nature.
- Shield 4.0 provides for the ability to suspend the repayment of credit for up to 3 months, without accruing interest or other fees (other than premiums for insurance related to these agreements). The solution included in the Act will affect loan agreements concluded 13 March 2020, if the loan’s repayment term, as specified in such agreements, falls at least 6 months after 13 March 2020.
- Credit holidays result in the obligation to repay consumer loans, mortgage loans, and credits as understood by Art. 69 of the Act of 29 August 1997 – the Banking Law (where the borrower is a consumer), with regards to both the principal and interest, being suspended.
- The loan term, as well as all other terms provided for in the loan agreement, shall be extended accordingly by the length of the suspension. If a borrower has multiple loans of the same type with a given lender, they will only be entitled to enjoy a credit holiday for one of them.
New powers granted to the President of the OCCP – access to information on taxpayers
- The Anti-Crisis Shield 4.0 extends the powers of the President of the OCCP regarding their access
to data held by tax offices and customs and tax offices.
- The President of the OCCP has been given access to information on, among others, bank, savings and cash accounts, securities accounts, credit and loan agreements, deposit agreements as well as Treasury shares and bonds.
- The information received will be used not only in competition and consumer protection proceedings, but also in proceedings regarding payment gridlocks, contractual advantage, and the control
of certain investments.
Foreign investment control
- The Act significantly expands State control over M&A transactions undertaken by entities from outside of the European Union, European Economic Area and the Organization for Economic Cooperation and Development (OECD) in certain strategic sectors of the economy;
- Foreign investment controls will be performed by the President of the Office of Competition and Consumer Protection, who has been granted broad competences. Transactions are subject to prior notification, and any acquisition made without the required notification shall be invalid;
- The Act provides for strict financial and criminal penalties for failing to comply with the new regulations;
- These provisions will come into force on 24 July 2020, and will also apply to ongoing transactions which have not completed by that date.
- The deadline for the payment of annual fees for the perpetual usufruct of property for 2020 is deferred until 31 January 2021;
- Possibility to reduce annual fees for the perpetual usufruct of property used for business purposes by entrepreneurs, non-governmental organizations, public benefit organizations and state legal persons which reported a decline in revenue as a result of the COVID-19 outbreak;
- Owners and holder of perpetual usufruct of property exempt from stamp duty for the issue of decisions on land use and development conditions concerning their property;
- the stamp duty for the issue of decisions on land use and development conditions has gone up, from PLN 107, to PLN 598;
- Shield 4.0 introduces a definition of the term “commercial space” used in Art. 15ze of the Shield Act, which concerns the possibility of lowering rent for space in large commercial facilities.
Functioning of cooperatives, 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, as well as to publish these documents by public benefit organizations on the relevant page of the National Institute;
- 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;
- Extension of the term of office of foundation bodies and association authorities during the pandemic.
WKB’s experts and our coronavirus legal aid team remain at your disposal.