new provisions | In Principle

On 5 November 2019, the President of Poland signed into law an amendment to the Act on Public Offerings and Conditions for Introduction of Financial Instruments into an Organised Trading System and on Public Companies. Most of the new regulations enter into force 14 days after publication of the amending act. It is intended to adjust Polish law to reflect the entry into force of the EU’s Prospectus Regulation (2017/1129) (which generally should have been done by July).

With the New Year, an amendment to the Polish Commercial Companies Code will enter into force requiring every joint-stock company or joint-stock limited partnership to maintain its own website for communicating with shareholders. The new obligation is motivated by the process of digitalisation of joint-stock companies, but is also designed to increase protection of shareholders’ rights.

Funkcjonowanie spółek handlowych podlega ograniczeniom płynącym ze sztywnego gorsetu przepisów Kodeksu spółek handlowych. Od 1 marca 2020 r. należy się spodziewać istotnych zmian w tym względzie. Prezydent właśnie podpisał ustawę o prostej spółce akcyjnej.

A new Corporate Liability Act which is currently before the Polish Sejm will put criminal law institutions in a new perspective. Certain instruments that were seen as appropriate only with respect to individuals will have to be redirected to be deployed in the case of corporate entities. Once the new laws take effect, corporate entities will be the focus of attention of law enforcement agencies. The new approach will affect among other things police entrapment operations (controlled handing over of a bribe), at the moment usually used with regard to businesspeople.

On 1 March 2019, an important amendment to the Civil Code comes into force, providing for the possibility of validating actions by a “false” corporate body. Up to now, such a possibility has applied only to actions by a “false” attorney-in-fact.

On 24 January 2019, the Ministry of Entrepreneurship and Technology presented a draft of the new Public Procurement Law. The extensive new law is intended to simplify and streamline regulations so public procurement becomes more efficient and user-friendly.

The explanatory memorandum for the draft of the new Public Procurement Law indicates the need to increase the transparency and coherence of national regulations, recognising that the EU’s procurement directives have already been implemented in the Polish legal system. However, the effect of the “small amendment” of 2016 has been unsatisfactory from the very beginning. Hence, the draft contains a number of new solutions justified by the need to reflect the regulations of the procurement directives in the Polish act.

Chapter X of the draft new Public Procurement Law (Art. 620–655) obliges the contracting authority and the contractor to conduct a mandatory conciliation procedure. While the very idea of settlement of disputes deserves full support, the proposed detailed solutions raise serious doubts under the Polish Constitution and EU law.

One new procedure will replace the three most commonly used procurement procedures below the EU thresholds. The open bid will disappear, and the basic procedure without negotiations will appear. It is supposed to be easier and more flexible, but will it work?

The draft of the new Public Procurement Law, released by the Ministry of Entrepreneurship and Technology on 24 January 2019, proposes changes in the grounds for exclusion of contractors and institution for “self-cleaning,” bringing the Polish regulations closer to Directive 2014/24/EU.

In the proposed new Public Procurement Law, the contracting authority will decide on the obligation to submit a bid bond, regardless of the value of the contract. However, the same restrictive consequences as in the current act are linked with the improper submission of a bid bond, and there are more grounds for retaining bid bonds.

The draft of the new Public Procurement Law can be called a revolution, if only because the law has never before addressed to such a degree the content of the contract. Although the draft needs to be fine-tuned, it already provides a number of appropriate solutions.