Transcript Magnusson - The Baltic Sea Region Law Firm

Legal Aspects of Doing
Business in Poland
Artur Swirtun
Göteborg, 26 November 2012
Copenhagen
Gothenburg
Minsk
Moscow
Stockholm
Warsaw
Who are we?
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2012-11-26
Full-service independent law firm focusing
on the Baltic Sea Region
Seamless regional coverage through own
offices in Denmark, Finland, Sweden,
Norway, Estonia, Latvia, Belarus, Russia
and Poland
Warsaw office since 1996
The only Swedish law firm in Poland
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Independent Views
The British Legal Awards 2012
The European Law Firm of the Year:
Winner
The Lawyer European Awards 2011
Law Firm of the Year, The Nordics:
Winner
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POLAND: The Wild East?
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…or the land of opportunities
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Positive GDP growth throughout the crisis and stable economic situation
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One of the healthiest economies in the EU
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Strong domestic consumption: one of the factors behind the GDP growth
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Politically stable, predictable and an EU-oriented government
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Relatively healthy real estate market
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Some economic facts
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Poland become EU’s 6th largest
economy in 2010 measured by
purchasing power
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Poland experienced the highest
cumulative GDP growth in the EU in
2008-2011 (14,6%)
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GDP growth in 2012 - 3%
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Inflation levels had been relatively
low and stable during the last years:
2010 – 2,6%
2011 – 4,3%
2012 – 4,1% and
2013 forecast – 2,9%
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Some typical fears and anticipated issues:
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Lack of access to information
Bureaucracy and formalities
Language and cultural differences
Uncertainty of law
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E-Solutions: Online Access to the Company
Register
http://krs.ms.gov.pl
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• Finally - Web access to the
company register
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Why did it take such a long time?!!!!
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www.ms.gov.pl
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http://krs.ms.gov.pl
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Instantaneous access to the data regarding
Management Board Members, representation,
date of entry, liquidation or bankruptcy
information, etc.
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E-Solutions: Online Access to the Company
Register
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E-Solutions: Online Access to the Land and
Mortgage Register
http://ekw.ms.gov.pl
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Even more important. web access to the Real
Estate and Mortgage Register
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Check information regarding real estates in the
National Land and Mortgage Register
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www.ms.gov.pl
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Visit http://ekw.ms.gov.pl
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Instantaneous access to plots, premises,
ownership issues, address of a court holding
the land and mortgage register book for a
proper real estate, mortgage, etc.
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E-Solutions: Online Access to the Land and
Mortgage Register
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Company stamps, sworn translations, apostille
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Language: Commercial contracts may, in general, be concluded in any
language. There are exceptions: e.g. contracts which have to be prepared
and executed in front of the Polish public notary
Notary Public
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Formation of sp. z o.o. / limited liability company (notarial deed)
Purchase of real estate (notarial deed)
Transfer of shares (signatures confirmed by notary public)
Lease agreement (fixed date)
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…or maybe the land of law.
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Polish law is based on the continental
system of law
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It has many legal institutions similar to those
existing both in German and French legal
systems (e,g. GmbH = sp. z o.o.)
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It is harmonized with the law of the
European Union which regulates many
areas of business activity
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All forms of companies available
Most common among foreign investors - limited liability company
Similar to the German GmbH, French S.A.R.L., English Ltd. or Swedish
privat AB
Shareholders are not personally liable for its obligations but they are obliged
to acquire and pay up the shares
– Costs: minimum share capital - PLN 5,000
– Time: ca. 2-4 weeks (depends on place of seat)
– One application: KRS, NIP, REGON
– Bank account
– Registered office – lease agreement
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Management Board in Poland – consists of one or more members and is entitled to
represent and sign for the company. Management of day-to-day business.
Personal liability for Management Board members (including taxes)
Management board members are liable jointly and severally with all their assets for any
tax arrears the company may have if enforcement against the company proves
ineffective, unless board members can show that an application for bankruptcy was filed
or arrangement proceedings were initiated in due time, or that failure to file a petition or
enter into arrangement proceedings was not due to a fault on their part, or if they indicate
property on which the enforcement can be effected.
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Disputes – some light in dark and long tunnel….
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Simplified cases involving request for payment
(usually undisputed)
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In the electronic writ proceedings only monetary
claims may be sought
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The defendant has the right to decide to file the
court writs (e.g. an objection against an order for
payment) in electronic or traditional written form
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The electronic court filing is faster than ordinary,
traditional proceedings
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Possibility to send invoices via e-mail (electronic
invoices), e.g. PDF files
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Governing law of the contract
The parties to the contract may choose which country’s law will be
applicable to their contract, on the condition that there is a link between the
law of that country and the contract. However, mandatory provisions of law.
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Jurisdiction over the contract
Generally, the parties to the contract may choose the domestic or
international court or arbitration tribunal which will have jurisdiction to settle
any disputes arising out of the contract. Common with mixed dispute
resolution clauses.
However, in some specific cases (e.g. regarding real estate located in
Poland) the Polish courts have the exclusive jurisdiction.
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Taxes
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Personal Income Tax:
– 18% for income up to PLN 85,000 per year
(approx. 20,000 EUR)
– 32 % for income in excess of PLN 85,000 per year
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Corporate Income Tax:
– 19%
– Social security: approx. 35% (including payments
paid by the employer)
• VAT
– Standard rate 23%
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Termination of employment contract by
the employer must be justified and in writing
Employment contract must be concluded
in writing in the Polish language version
Employment documentation in Polish
(e.g. employment certificates)
Trade unions weaker compared to Sweden
Lesser importance of Collective Bargaining Agreements
Nevertheless, Polish labour law seems to be more flexible compared to
Sweden
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Contracts in Poland may be concluded in oral form, ordinary written
form, or one of the specific forms prepared and executed in front of a
public notary.
Pacta sunt servanda – is oral agreement valid in Poland?
 Yes, but…
 No signature - no agreement (still negotiations)
Confirm everything in writing (agreements, confirming emails)
In case of dispute: intention of the parties vs. linguistic interpretation of
agreements
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Thank you!
Artur Swirtun, Advokat and Radca Prawny / Partner
Magnusson Warsaw
Email: [email protected]
Telephone: +48 22 55 27 555
Mobile: +48 601 94 52 80
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