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Listing of entities for Polish and EU sanctions
At the EU and national levels, severe economic sanctions are in place against many entities, mainly Russian. After entry into force of the Sanctions Act (the Act on Special Solutions for Countering Support of Aggression Against Ukraine and Protecting National Security of 13 April 2022), first published on 26 April 2022, the Polish sanctions list maintained by the Minister of the Interior and Administration took on particular significance. The purpose of its creation is clear: to counter support for Russia’s aggression against Ukraine. Nevertheless, the criteria for inclusion in the list are not clear-cut, and the procedure for issuing a listing decision greatly limits the right to defend against wrongful inclusion, as Polish entities can easily be included in the list.
The Holding Law in practice: Do companies need to amend their articles of association?
The recent amendment to the Commercial Companies Code introduces a number of important changes for companies, especially companies operating within corporate groups. This raises the question of whether companies should adapt their corporate documents to reflect these changes.
The business judgment rule
The management board conducts the affairs of the company, represents the company externally, and under certain circumstances can be liable to the company and its creditors. Management board members should act with due care, which corresponds to the standard of care that would be observed by a conscientious merchant in dealings of a given sort. Failure to observe due care can lead to liability of members of the corporate authorities—and conversely, compliance with due care can shield them from such liability. An amendment to the Commercial Companies Code will make certain changes to these rules.
New law on corporate groups enters into force in October 2022
An act amending the Commercial Companies Code was published in the Journal of Laws on 12 April 2022. It establishes the rules for operation of capital groups in Poland and modifies certain rules for operation of corporate authorities. The act will enter into force six months after publication.
EU regulations will force the eco-design of sustainable products
In late March, the European Commission published another package of proposals aimed at making the European Green Deal a reality. Some of the proposals relate to specific product categories, e.g. construction products and textiles, but there is also no shortage of proposals to make products more sustainable and environment-friendly.
Spouse’s consent to incur debt
How should a spouse consent to incurring a debt encumbering the marital community property so that the creditor can obtain security against marital property or execute against marital property? And what should a creditor do if there is no written consent?
Can a contractual penalty be cut by 99%? When?
Contractual penalties are a common instrument for sanctioning failures to perform non-monetary obligations (e.g. completing construction on time). Contractual penalties can be cut by the courts, but generally the Polish Civil Code indicates only the grounds for mitigating a contractual penalty. The details must be sought in the legal literature and the case law. Indeed, the regulations do not even provide guidance on how much contractual penalties can be reduced. Thus each case should be treated individually, guided by the principles discussed below.
Russian contractors barred from Polish public procurement
Until the end of April, contracting authorities in Poland have time to add to their procurement documentation and competition terms and conditions new mandatory grounds for exclusion of contractors included in the sanctions list or whose beneficial owner or parent company is on the list.
A fraudulent transfer claim does not always enjoy priority of satisfaction
In a recent resolution, the Supreme Court of Poland addressed the legal situation of a creditor bringing a fraudulent transfer claim against a third party, compared to other creditors of the third party.
Tales from the National Appeal Chamber: How to explain a bid price when requested by the contracting authority?
A contractor is obliged to calculate the bid price fairly and factor in everything that follows from the terms of reference, including typical risks associated with contract performance, so that the bid is realistic and allows for proper performance of the contract. If the bid price appears abnormally low or is otherwise questionable, the contractor must explain it in detail.