Overview of the legal changes essential to enterpreneurs from 1 January 2018 and drafts of the new acts

Legal status dated 6 February 2018

Legal status dated 6 February 2018
Prepared by Jacek Kowalewski, Advocate, Associate in Taylor Wessing Warsaw

INNOVATION/TAX
Act of 26 July 1991
on Personal Income Tax
and
Act of 15 February 1992
on Corporate Income Tax
 

From 1 January the so-called second act on innovation in the economy introduced changes in tax law, i.a.:

  • An increase in the amount of tax relief in relation to income costs spent on research and development (up to 100 or 150%);
  • a list specifying the above mentioned eligible costs;
  • for start-ups which are legal persons: specific tax regulations concerning a loan which has changed into stocks or shares.
  • Moreover as of 1 January 2018,  amongst others, the following changes came into force:
  • the so-called minimum income tax on ownership of a fixed asset (e.g. a shopping centre) located in Poland, the initial value of which exceeds PLN 10,000,000;
  • a maximum of PLN 3 million of tax deductions related to consultancy services costs, as well as market research, advertising services, management and control, data processing, insurance, guarantees, sureties and benefits of a similar nature;
  • preferential deductible costs threshold (50%) of personal income tax is only available to specific occupations - while up until the end of 2017, the use of this preference primarily depended on whether the income was obtained against the performance of work or exercise of other copyright-related rights, regardless of the profession performed by the tax payer.
INNOVATION/TAX
Act of 25 September 2015
on changes of some acts in relation to supporting innovation
 

From 1 January 2018, income from the sale of shares (stocks) purchased between 2016 and 2023 by a capital company (limited company or joint-stock company) or a limited joint-stock partnership which is involved in scientific activity is relieved from corporate income tax.

TAX
Act of 29 September 1997
Tax Ordinance

 

From 1 January 2018, micro-businesses are obliged to electronically submit a so-called standard tax audit file to the competent tax office – i.e. accounting books and accounting evidence “in digital form which corresponds to the appropriate logical structure”, which can be downloaded from the Public Information Bulletin issued by the Ministry of Finance.

COMPANY LAW
Draft amendments of some acts in order to simplfy tax and commercial law for entrepreneurs
Legislative phase: after opinioning, in the Council of Ministers
https://legislacja.rcl.gov.pl/projekt/12303406
 

The project includes:

  • clarification that management board members of a capital company submit their resignation to the business registry court, whereas members of the supervisory board submit to the company itself;
  • regulation on the consequences of purchasing /acquiring shares (or stocks) financed from common assets of a spousal couple where only one is a party to the acquisition;
  • clarified principles to represent a company in liquidation;
  • clarification on the consequences of a legal action carried out by an alleged body of a legal person or by a body of a legal person which exceeds their scope of authority.

COMPANY LAW
Draft amendments to the Commercial Companies Code and to the Act on European economic interest grouping and european company
Legislative phase: opinioning, in the Council of Ministers
https://legislacja.rcl.gov.pl/projekt/12294656

 

The draft provides, amongst others, dematerialising stocks (as well as other titles to profit or in distribution of a company’s property). The rights (titles) will be confirmed in electronic form.

ENTREPRENEURSHIP
Act of 20 August 1997 on the National Court Registry

 

From 1 January 2018 company reports concerning payments to administrative (i.e. state) bodies made by limited liability companies, joint stock companies, limited joint-stock partnerships and by European companies are to be published in the respective electronic catalogue of documents in the National Court Register. Moreover information on submitted reports regarding payments to administrative bodies are to be published in the National Court Registry if submission to the Registry court is required by accounting law.

ENTREPRENEURSHIP
Act on Entrepreneurship
Legislative phase: adopted by the Sejm, before further work by the Senate and the President.
http://www.sejm.gov.pl/sejm8.nsf/PrzebiegProc.xsp?nr=2051

 

An activity would only be qualified as a business activity if the revenue exceeds a certain threshold. An entrepreneur’s exemption from compulsory social insurance for a period of 6 months from the date of starting a business activity is also expected. Any doubt as to the facts of a given case in administrative proceedings would need to be resolved in favour of the entrepreneur if they have not been resolved in evidentiary proceedings. In cases related to public levies or social security contributions the right is being introduced  for an individual interpretation of legal provisions from an administrative body.

ENTREPRENEURSHIP
Draft act on management of an enterprise of a natural person during the succession process
Legislative phase: in the Council of Ministers
https://legislacja.rcl.gov.pl/projekt/12300657
 

The act would introduce the facility to appoint a succession manager responsible for managing a separate part of the assets of a deceased person (who conducted an individual business activity). The manager would be empowered to undertake judicial and extra-judicial activities. A manager will be appointed, and his/her name will be entered into the Central Registry of Individual Business Activity by the entrepreneur him- or herself, which would ensure automatic continuation of the activity despite the death of the entrepreneur. The entrepreneur’s commercial proxy  may be appointed as the manager. Alternatively, certain entities may appoint a succession manager after the entrepreneur's death. The succession manager would have the obligation to manage the company until the division of inheritance or expiry of the succession management for other reasons. This facility will also be available to parties of a contract of a civil law partnership (a so-called civil law company).

FOREIGN ENTREPRENEURS
Act on regulations of participating in a business on the territory of the Republic of Poland for foreign entrepreneurs and foreigners
Legislative phase: adopted by the Sejm, before further work by the Senate and the President.
http://www.sejm.gov.pl/sejm8.nsf/PrzebiegProc.xsp?nr=2054

 
The Council of Ministers objective is to eliminate "legal doubt as to the principles according to which foreign companies (their branches and representative offices) can undertake an economic activity in Poland". An infringement of the law by an entrepreneur themselves, not their branch in Poland, will justify issuing a  ban on running a further business activity in Poland. The registration of the representative office in the relevant business registry is to be valid for two years - with the possibility to extend this period.
LABOUR LAW
Act of 20 April 2004 on promotion of employment and labour market institutions
 

In order to facilitate reconciliation of the responsibility of a carer, as of 1 January 2018, an employer or an entrepreneur who employs a carer of a disabled person will have the facility to obtain a grant in order to arrange tele-working. The employer or entrepreneur may receive a grant from the Labour Fund to pay the minimum wage for a period of 12 months to create a position for an unemployed carer who would provide a carer service for the disabled person.

LABOUR LAW
Amending the act on the social insurance system and other laws
Legislative phase: the President directed the Act to the Constitutional Tribunal
http://www.sejm.gov.pl/Sejm8.nsf/PrzebiegProc.xsp?nr=1974

 

As of 1 January 2019 (not as of the current calendar year, as previously planned), the current annual maximum limit of contributions paid into the pension and disability insurance of employees may cease to exist. This change would concern a group of approximately 350,000 workers who are in the highest salary bracket i.e. over PLN 10,700 gross monthly.

INSOLVENCY LAW
(BANKRUPTCY AND RESTRUCTURING)
Act of 15 May 2015
Restructuring Law

 

The Act has been in force for over two years, but it is only from 1 February 2018 that the Central Registry of Restructuring and Bankruptcy Proceedings was supposed to start functioning.  However, there is no information which determines the launch of this electronic platform aimed at facilitating the running of proceedings, in particular by allowing access to rulings and to submit writs.

Simultaneously the Ministry of Justice is working on a draft act on the National Registry of Debtors (https://legislacja.rcl.gov.pl/projekt/12302650/katalog/12457014#12457014 ), which is supposed to replace the Central Registry of Bankruptcy and Restructuring Proceedings. The draft act adjusts various acts, including e.g. Bankruptcy Law and the Act on National Court Registry, to the Regulation of the European Parliament and of the Council No 2015/848 of 20 May 2015 on insolvency proceedings, according to which Member States are supposed to run at least one insolvency registry by 26 June 2018. The National Registry of Debtors would, amongst others, include data on the prohibition of conducting a business activity imposed according to the relevant legal provisions.

INSOLVENCY LAW
(BANKRUPTCY AND INSOLVENCY)
Draft amendments to the following acts: on the operating license of a restructuring advisor, Bankruptcy Law and Restructuring Law
Legislative phase: directed to the first reading in committees
http://www.sejm.gov.pl/sejm8.nsf/PrzebiegProc.xsp?nr=2089
 

The draft introduces the supervision of the Ministry of Justice over activities of individuals who have restructuring advisor licence, which includes the Ministry’s right to suspend the advisor’s licence, as well as the right to access their documentation. The courts will choose the trustee, supervisor or administrator in bankruptcy and restructuring proceedings on the basis of a new provision which introduces merit-based criteria. Only qualified advisors who meet the highest criteria related to their professional experience could be appointed to the above specified functions regarding larger debtors or debtors of  particular importance for the economic condition or defence capability of the country.

COURT ADMINISTRATIVE PROCEEDINGS
Act of 30 September 2002 on proceedings in administrative courts
 

From 15 May, it will be possible for pleadings to be filed via electronic means of communication and the court will be able to deliver documents with the same means. Case files are to be kept and made available, not only in paper form, but also electronically.

Regulation of the Minister of Infrastructure and Construction
of 7 April 2017
on access to the railway infrastructure

 

On 9 December 2018, some of the provisions of the regulation concerning planning delays on the available railway infrastructure and fees for delays, i.e. compensation from the infrastructure manager towards carriers, will come into force.

LABOUR LAW/ HOURLY RATES
Regulation of  the Council of Ministers of 12 September 2017
regarding the minimum wage and minimum hourly wage in 2018

  The minimum monthly wage in 2018 is PLN 2,100 and the minimum hourly rate - PLN 13.70.
HEALTHCARE
Act of 15 September 2017
on health protection against the consequences of using a solarium
 

As of 16 February advertising and promotion of solarium services will be prohibited, and persons under 18 will not be allowed to use such services.

PRIVACY
Regulation (EU) 2016/679 of the European Parliament and of the Council
of 27 April 2016
on the protection of natural persons with regards to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
(Text with EEA relevance)
 

GDPR is to be applied from May 25. The act requires reviewing, supplementing and updating all procedures and policies regarding the processing of personal data. This applies to the administrators' readiness to report GDPR breaches to the competent authority (and also possibly to the data owners), or to restrictions related to profiling introduced by the regulation. Data controllers must be able to meet data owners’ requests to "be forgotten" and to transfer their data. Contracts for entrusting data processing should, in light of the GDPR, contain additional or more precise provisions than before. This requires verifying and possibly renegotiating agreements which are already in force, also in light of the direct responsibility of the data processors, regardless of their business model (e.g. the supplier of "clouds"). Also a large number of data controllers and processors must set up a data protection officer who is truly knowledgeable.

PRIVACY
Draft act on the protection of personal data
Legislative phase: at the European Affairs Committee of the Council of Ministers https://legislacja.rcl.gov.pl/projekt/12302950/katalog/12457664#12457664

 

The Act is intended to supplement the GDPR in the scope specified in the GDPR, as well as to settle certain issues not covered by the GDPR. One example of the proposed changes to the general terms contained in the GDPR is that consent for data processing for a person under the age of 13 must be given by a statutory representative.

In addition, the project assumes, amongst others, that:

  • proceedings in  the President of the Office for Personal Data Protection will be single-instance;
  • control proceedings may not last any longer than one month;
  • violation of rights under the provisions on the protection of personal data may be the basis for non-pecuniary claims.

Important amendments to different laws in force will likely be introduced by a separate act with provisions which introduce the new act on the protection of personal data (see current legislative work at http://legislacja.rcl.gov.pl/projekt/12302951).

Media/ Communications
REGULATION (EU) 2017/1128 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 14 June 2017
on cross-border portability of online content services in the internal market
(Text with EEA relevance)

 

From 1 April, subscribers who are temporarily present in an EU member state other than their country of residence will be able to use portable online access services for content such as music, games, movies, entertainment programs or sporting events, at no additional charge, and for example to download data, as if they were performing these activities in their country of residence. Service providers will have the right to verify the place of use of services, including checking the IP address. The regulation also applies to contracts concluded and rights acquired before 1 April 2018.

MEDIA/INTELECTUAL PROPERTY
REGULATION (EU) 2017/1563 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 13 September 2017
on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled

 

The regulation is the result of the EU's compliance with the obligations of the Marrakesh Treaty to facilitate access to published works for individuals who are blind, visually impaired or otherwise print disabled. It permits the distribution of copies of protected objects to entities that have been authorised or recognised by a Member State to conduct, on a non-commercial basis, activities for beneficiaries in the fields of education, training, adaptive reading or access to information. The initial date of application of the Regulation is 12 October 2018.

PRIVACY/ COMMUNICATION
Draft Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002
concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)
(Text with EEA relevance)
Legislative phase: debate in the Council of Ministers
http://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:52017PC0010

 

The European Commission expects the Regulation to be adopted and applied no later than 25 May 2018 to ensure consistency with the GDPR. The new e-privacy rules would cover 'over the top' (OTT) services, such as internet messengers and internet telephone services (voice over IP). It is possible that there will be a clear prohibition on blocking access to websites by their providers requiring an advance consent to process cookies when the consent is not necessary to use a given service. Bodies competent in the matters of the GDPR would be responsible for supervising compliance with the Directive.

AGRICULTURE
Commission implementing regulation (EU) 2017/1422
of 4 August 2017
designating the European Union reference centre responsible for the scientific and technical contribution to the harmonisation and improvement of the methods of performance testing and genetic evaluation of purebred breeding animals of the bovine species
(Text with EEA relevance)

 

The Swedish centre appointed by this Regulation will, from 1 November 2018, formulate recommendations on the calculation methods to assess the usability and genetic evaluation of pure-bred animals for breeding of the bovine species.

ENERGY SECTOR
Commission regulation 2017/2195
of 23 November 2017
establishing a guideline on electricity balancing
(Text with EEA relevance)

 

From 18 December some technical and operational regulations regarding the cross-border flow of electricity will be applied. The general goal is amongst others to support the increase in the share of energy production from renewable sources.

COSMIC ACTIVITY
Draft act on space activities and the National Registry of Space Objects
Legislative phase: inter-ministerial consultations
http://legislacja.gov.pl/projekt/12300856

 

The act would be the first national legal act in the field of space policy. It is to be the basis for establishing the National Registry of Space Objects and the regulations of liability for any damage caused by these objects. According to the project, consent for the release of the object into space will be issued in the form of an administrative decision.