Archives: Aktualności członków

On March 31, 2020 entered into force the acts of law, which create the “Anti-crisis shield”, whose aim is to mitigate the effects of the economic crisis in Poland caused by the coronavirus epidemic, enabling entrepreneurs, who will the most suffer from the epidemic to continue its business activity, the best escaping in the results of the epidemic, as well as workplaces’ protection.

The adopted package of acts of law includes, among others “The Act of 31 March 2020 amending the Act on special solutions related to the prevention and eradication of COVID-19, other infectious diseases and crisis situations caused by them, as well as certain other acts” (hereinafter referred to as: “COVID-19 Act “), which includes suspension of procedural and judicial time limits in court proceedings, enforcement proceedings, criminal and administrative proceedings

Deadlines. In the COVID-19 Act were rescheduled:

30. the time limits for payment of annual charges for perpetual use until 30.06.2020,
31. the time limits for  registration in the Central Register of Beneficial Owners for companies registered in the Register of Entrepreneurs before 13.10.2019 for 3 months, i.e.until 13.07.2020, 
32. the deadline for providing information to the Head of the National Tax Administration on the tax schemes (MDR).

Labour law. A number of changes in labour law have been introduced, to make it more flexible, i.e. the possibility of limiting uninterrupted daily rest (Article 132 § 1 of the Labor Code) to not less than 8 hours, and uninterrupted weekly rest (Article 133 § 1 of the Labor Code), to not less than 32 hours, covering at least 8 hours of uninterrupted daily rest; the possibility of concluding an agreement on the introduction of an equivalent working time system; the possibility of concluding an agreement on the use of less favourable employment conditions for employees than those resulting from employment contracts concluded with those employees, to the extent and for the time agreed in the agreement; exemption from the obligation to work an adolescent employee without the right to remuneration (however, the employer retains the right to reimbursement).

Commercial law. The COVID-19 Act also provides for the possibility of taking place of assemblies of shareholders and meetings of the management board and supervisory board by using means of direct remote communication, e.g. tele- or video conferences in each company (not only in limited liability companies). The management boards and supervisory boards of capital companies, in the lack of different regulations in the commercial contract or the statute, may adopt resolutions in writing. Declarations of will of a member of the organs of a legal person may be submitted in documentary form (e.g. e-mail, scans of signed documents). Similar solutions have also been introduced, among others for housing associations.

Financial support. Particularly to protect employment, reduce financial burdens and maintain financial liquidity in enterprises, it was adopted, among others:

1. co-financing employee salaries up to 40% average salary if the company reduces working hours by at least 20% (to max. half-time);
2. temporary abolition of the extension fee when postponing or dividing into instalments of taxes and social insurance payments (ZUS);
3. exemption from the obligation to pay social insurance payments by the end of May 2020 for companies with employees up to 9 (for self-employed workers, the exemption depends on income, which should be no more than 15,681 PLN);
4. the so-called “standstill fee” for people employed on commission contracts, contracts for specific work and self-employed people in the amount of 80 per cent of the minimum salary, i.e. 2,080 PLN gross;
5. the possibility for self-employed persons to apply by the local government officer for co-financing of part of the costs of conducting business activity(for a maximum of 3 months) in the event of a decrease in turnover caused by COVID-19;
6. micro-loans for enterprises up to PLN 5,000 (if, for a period of 3 months from the date of granting the loan, the micro-entrepreneur does not reduce the employment level calculated as a full-time employee in relation to the employment level as at 29 February 2020, the loan with interest at his request subject to redemption).

More information: If you have additional questions regarding the provisions of the COVID-19 Act, please contact us.

Marek Kacprzak

Attorney-at-law | Managing Partner

m.kacprzak@kacprzak.com.pl

www.kacprzak.com.pl

 

In the face of the epidemic hazard and restrictions of the movement of people, a practical question arises how to ensure proper representation of capital companies (limited liability companies and joint?stock companies; collectively: company).

Companies are represented by a management board. Usually, the rules of representation are set forth in company’s articles of association; in practice companies choose joint representation which requires two board members to act together or one board member to act together with a commercial proxy.

Do the two board members or the board member and the commercial proxy have to sign an agreement or its termination or withdrawal statement at the same time?

• Joint representation does not require that two representatives appear physically at the same place. They may affix their signatures independently, it is important, however, that the documents signed by them have the same contents. For instance, an agreement may be signed by Mr Kowalski staying in Warsaw and Mr Schmidt staying in Berlin – both of them will sign “their own” copy of the agreement and thereby the representation requirements will be met.
• The management board may appoint a commercial proxy – authorised to act alone, who may represent the company within very broad limits, or authorised to act only together with a board member or another commercial proxy.
• Board members who are authorised to joint representation may grant a power of attorney to one another. In such situation the board member acting as an attorney-in-fact may represent the company alone within the limits of such power of attorney.
• Board members may also empower another person, associated or not directly associated with the company. The power of attorney should precisely stipulate the limits of the representation (limited or special power of attorney).
• In case of joint-stock companies it is possible to delegate members of the supervisory board for a period not longer than three months to temporarily fulfill the responsibilities of board members who have been dismissed, who resigned or for other reasons are unable to perform their function. In the latter case, such inability may result from a mandatory quarantine or isolation due to a disease.
• Change of representation rules agreed in company’s articles of association requires a notarised amendment of the articles of association and registration of such change in the register of businesses. Such amendment may also be effected by an attorney-in-fact. That can take at least three weeks; nevertheless, in the current situation, since the applications must be sent by regular mail to the National Court Register, we can expect it will be longer. Additionally, the registration of an application lasts longer because the IT systems in courts are not adjusted to the possibility to work from home.
• A special situation arises when a created company has not been entered into the register yet. Then such company is represented by the management board (limited liability company in formation), all founders together (joint-stock company in formation) or an attorney-in-fact appointed by a unanimous resolution of the shareholders or the founders. In light of the epidemic hazard, it will be easier to adopt such resolution in a limited liability company than in a joint-stock company. If all shareholders agree, an attorney-in-fact of a limited liability company in formation may be appointed even by circulation, without holding a shareholders’ meeting. It is also necessary to appoint an attorney-in-fact to represent the company in case of conclusion of an agreement or a dispute between a board member and the company. In such situation, however, unanimity is not required. Moreover, in such case also special representation of the company by the supervisory board is possible. However, since a supervisory board must take decisions collectively, its operation might be obstructed by the COVID-19 pandemic.
• A situation when the actual number of board members is lower than the minimum number stipulated in the articles of association should be assessed separately. Should it be the case, the members of the so called “non-quorum” management board may represent the company as long as they meet the requirements regarding representation set out in the articles of associations, however they may not adopt resolutions. That means that if in a three-member management board one position becomes vacant, the two other board members cannot take actions that fall beyond the ordinary course of business, because doing so requires a resolution of the entire management board. However, on principle they may effectively represent the company towards business partners because they meet the standard requirements of joint representation by two board members together.

Dear All,
 

KPMG in Poland supports companies during the crisis caused by the SARS CoV-2 pandemic (COVID-19) by preparing publications and factual materials that help to manage the business in the current market situation. The dedicated page home.kpmg/pl/COVID-19 has been created, it aggregates all available materials prepared by KPMG experts.

We would like to invite you to contact KPMG experts directly or through our special recently launched alarm box: MamPytanie@kpmg.pl

News of the week

 

• KPMG provides, free of charge, ready-made templates of applications for deferment of payment or payment in installments of VAT and CIT with appropriate justification.
• Find the templates
• We regulary organizes webcasts which replaced standard, non-chargeable events and conference
• Register now for webcast “COVID-19 – Tax Measures”, which goes live 30 march 2020 and will be held in English
• Find out actual webcast schedule
• KPMG provided publications on the effects of COVID-19 on financial statements from the perspective of audit committees.
• How Does COVID-19 Affect Companies? Checklist Questions for Your Organization
• The Implications of SARS CoV-2 (COVID-19) on the Financial Reporting as at 31 December 2019 – Our View
• Understanding the implications of COVID-19 (Coronavirus) for private companies
• COVID-19. What CIO and CISO can do to help their business?
• The role of internal audit in the age of coronavirus,
• COVID-19. How to be prepared fo cyber attack?
• KPMG provides solutions which are developed for the current pandemic situation;
• Check KPMG Spot
• KPMG experts have actively participated in consultations on comments on the government’s draft of the so-called anti-crisis Shield within chambers of commerce and industry associations.
• The KPMG Foundation has purchased the necessary laboratory equipment

for one of Warsaw’s hospitals. Also, Foundation provided 5,000 protective masks for one of hospitals in Crocow.

• Also, we would like to invite you to visit our Library for a variety of interesting content on industry and sector-specific information, an archive of our webcasts and podcasts.

 

Stay Informed

KPMG experts remain at your disposal to maintain the highest standards of work, providing advice and assistance. We are constantly monitoring the economic situation and implementing internal procedures that allow KPMG to fully meet its commitments to customers regardless of market conditions.
Please don not hesitate to contact us.

• Join KPMG knowledge subscribers

Remember, ‘MamPytanie’ is a new contact box, to which companies and entrepreneurs can submit an urgent question to KPMG experts.

• MamPytanie@kpmg.pl

Let’s keep in touch!

 

Dear Sirs and Madams,

During this weekend, Polish Government submitted a draft of the so-called anti-crisis act to counteract the effects of the COVID-19 epidemic. Although the draft will still be discussed, it already contains a number of regulations that will affect the activities of enterprises over the coming months.

Based on the draft, we have selected the most important legal and tax tools which we will discuss during webinar that will take place on Thursday 26^th March, 1 pm – 2 pm CET.

In particular we will cover the following topics:

1. PROVIDING ADDITIONAL LIQUIDITY ON THE MARKET: central’s bank actions and state guarantees for SMEs / low-interest loans
2. KEY INSTRUMENT: co-financing of employee salary by the state and why it can be important to act fast
3. TAXES: Tax deferrals – what may be deferred under the package and how to act in case of no automatic deferral?
4. EMPLOYER VS EMPLOYEE: providing more flexibility in the area of labor law
5. Deferral of certain administrative, legal and tax deadlines
6. Other measures and state aid considerations
7. What legal and tax measures should be taken by business to secure liquidity and stability of Polish enterprises?

The webinar will be hosted by CRIDO experts.

Participation in the webinar is free. The number of places is limited.
Before the webinar, you will receive by e-mail the link necessary to properly join the event.

<< click here to registrate >>

With regards,
CRIDO team

Economy in the world and in Poland is in an extremely uncertain moment. The threat associated with the COVID-19 outbreak quickly changed the functioning of companies around the world. Businesses – especially their owners and managers – can’t stay suspended right now. On the contrary – it is necessary to respond efficiently and adapt the organization to new conditions. The basis of such activities is reliable information and exchange of experience.

PwC consulting company has started a new video series – Guest of Professor Witold Orłowski. Professor Orłowski, the main economic advisor to PwC, in the next episodes of the program talks with invited experts about the most important macroeconomic trends from Poland and the world, as well as practical ways to build enterprise resilience.

Video materials are available at https://www.pwc.pl/pl/artykuly/gosc-prof-witolda-orlowskiego.html

First episode: https://www.youtube.com/watch?v=Y8QWfccEzaw 

Please note that this series will be held in Polish.

The Chambers Europe 2019 ranking yet again affirms the strong market standing of our firm, highlighting three of our departments and according seven individual recommendations to our lawyers. 

 

Chambers Europe 2019 distinguishes GESSEL in the categories of:

• Capital Markets 
• Corporate/M&A 
• Private Equity 

 

 Dr Beata Gessel-Kalinowska vel Kalisz  is named in Dispute Resolution: Most in Demand Arbitrators, Leszek Koziorowski and  Krzysztof Marczuk – in Capital Markets,  Małgorzata Badowska, Maciej Kożuchowski and Marcin Macieszczak – in Corporate/M&A. Marcin Macieszczak has also been distinguished in the Private Equity category.

 

We are honoured by the commentary collated by Chambers Europe:

 

Beata Gessel-Kalinowska vel Kalisz is a regular panel appointee in arbitral proceedings. A source enthuses: “She acted for many years as a transactional lawyer, so has a good focus on the deals and how to settle them,” adding that “she is very much business-oriented. She helps to settle a dispute effectively.”

 

Leszek Koziorowski is an ECM lawyer assisting mid-sized companies with their preparation for domestic IPOs. Market commentators credit him for his long-standing practice and practical experience.

 

Marcin Macieszczak is a reputed practitioner with a clientele of domestic private equity funds for whom he acts on mid-market transactions. Clients appreciate him for his attentiveness, one calling him “highly responsive.”

 

Marcin Macieszczak ‘s remit stretches from acquisitions and sales to investments and management buyouts, acting for clients hailing from the healthcare, pharmaceutical and private equity sectors. One client reports that “he understands the business, but the focus on the customer is what we appreciated the most,” explaining that he is “interested in what we wanted to achieve.”

 

Maciej Kożuchowski is valued by market commentators for his co-operative manner, one observing how he makes it “easy to find common solutions and a common understanding.” He has been highly active of late for several financial services clients.

 

Małgorzata Badowska goes up in the rankings this year following strong client feedback and market visibility. As well as assisting with acquisitions and investments, she also advises clients on corporate structuring. Sources highlight her for her creative and out-of-the-box approach.

 

Krzysztof Marczuk enters the table this year following positive market feedback and visibility on the firm’s key deals. He handles ECM matters, including prospectus preparation and stock exchange listings as well as public tender offers. He acts for a clientele of mid-market companies in healthcare and real estate.

With regard to the questions addressed to the Chamber in the case of the COVID-19 and the desire to share preventive actions in this matter, we invite you to read and analyze the restrictions introduced in Swiss companies. The file will be updated on a regular basis and is available in Polish only.

GESSEL represented the Highlander Partners private equity fund in the sale of a majority stake in the Akomex Group.

The co-founder and current minority shareholder Sebastian Śliwa (supported by AMC Capital IV S.c. Sp., a fund advised by Mezzanine Management) will take over control of the company. The transaction requires antitrust clearance from the Office of Competition and Consumer Protection (UOKiK).

GESSEL provided comprehensive legal support at all stages of the transaction, including drafting of the transaction documentation and negotiations.

The GESSEL team working on this project was led by Marcin Macieszczak, managing partner and was composed of Maciej Kożuchowski, partner, Krzysztof Jasiński, senior associate, Bartłomiej Woźniak, senior associate, Adam Kraszewski, managing associate, and Karolina Krzal-Kwiatkowska, senior associate.

GESSEL has been involved in the Highlander Partners fund investment in Akomex at all its stages. We had the pleasure of advising our Client on the acquisition of a controlling stake in Akomex in 2010, and in the subsequent years we worked with Highlander Partners and the Akomex Group on a sequence of strategic projects – including our support in the acquisition of Druk Pak carried out in a public-to-private structure in 2014. This transaction has enabled expanding the Akomex Group offer to include the pharmaceutical packaging sector. Advising Highlander Partners in the exit process crowns our commitment to this investment. We are happy that we had the opportunity to thus contribute to the creation of one of the largest packaging companies in Central Europe.

“Congratulations to Highlander Partners on a successful investment and, at the same time, thank you for your trust and the possibility of many years of cooperation in this project.
Due to the opportunity to participate in the entire transaction process – from advising on the purchase of the company, through activities that increase the company’s potential, to exit from the investment – it was a unique transaction for us, and one in which a large part of our team took part. I would like to thank all the GESSEL staff involved in the project and to wish our Client further successes and further successful investments ! “

– Marcin Macieszczak, managing partner, GESSEL

Highlander Partners is a private equity fund that deals with direct investments in manufacturing and service enterprises in selected industries. Highlander Partners operates in the United States and Central and Eastern Europe. The fund manages assets worth over USD 2 billion.

The Akomex Group is one of the leading producers of solid and corrugated cardboard packaging, leaflets and labels in Central Europe for the pharmaceutical, cosmetics, food, electronics and other sectors. The company was founded in 1993 in Starogard Gdański. It has 3 modern factories in Poland and Denmark, which produce over 1.8 billion packages annually.

https://gessel.pl/en/news/gessel-advises-highlander-partners-on-its-sale-of-the-akomex-group/

 

In the underlying verdict, the Court presented very favourable for taxpayers interpretation of prerequisite referring to “direct connection” of the costs with the services provided by taxpayer (this is one of the exemption that allows the taxpayers not to apply the limitation provided by Article 15e of Polish CIT Act). The court stated that “direct connection” should be understood widely and it cannot be limited only to those expenses, which are further incorporated in the price of goods / services sold by the taxpayer. It should not be also equated with “costs directly generating revenues”.

WHAT CAN BE THE EFFECT OF THE JUDGEMENT AND HOW CAN WE HELP?

In our view the judgement may be very interesting point in discussion regarding potential solutions that may be now implemented by the taxpayers, also with respect to FY 2018-2019. Please note that besides argumentation that was raised in the verdict at hand, CRIDO’s litigation team developed additional argumentation which may strengthen the position of the taxpayers in this respect (also in case the taxpayers wishes to apply for a tax refund on the basis of application of “direct connection” rule provided by Article 15e of Polish CIT Act). We would be pleased to discuss with you this in details and discuss further strategy in your individual case.

Worth asking.

Anna Pęczyk-Tofel PARTNER CRIDO

E: anna.peczyk-tofel@crido.pl T: +48 22 324 59 36

It is with great pleasure that we announce the promotion of Dr Bartłomiej Woźniak, advocate practicing on the M&A team led by Maciej Kożuchowski, and of Paweł Kwiatkowski, advocate with our litigation and special cases / risk&support practice led by Piotr Schramm, to managing associate.

Dr Bartłomiej Woźniak specialises in mergers and acquisitions, banking and finance, and company law and business law. He has worked with many private equity and venture capital funds, advising on share deal-  and asset deal-type transactions on the buyer as well as seller sides. He also advised on buy-out transactions (including LBOs and MBOs) and on expansion capital transactions. He has experience with organised divestment processes, with transactions involving representations and warranties insurance (which is a novel concept in Polish legal dealing), and with cross-border / multi-jurisdiction projects.

With GESSEL since 2014.

Paweł Kwiatkowski represents Clients in corporate matters (for example cases concerning liability of management board members for actions to the company’s detriment), with respect to construction projects (he has represented contractors and investors in extraordinary appeals before the Supreme Court), and in civil proceedings as well as in criminal proceedings rooted in tax law (he represented the president of a company’s management board charged with racketeering offences and VAT fraud). His experience with adversarial proceedings is also applied in the context of M&A deals – for example, he advised in a dispute arising after sale of a waste handling operator – and in negotiations, also with a cross-border element.

Since February 2017, a member of the Arbitration Committee of the Lewiatan Arbitration Court.

With GESSEL since 2012.

We congratulate our colleagues and look forward to future successes together!

https://gessel.pl/en/news/bartlomiej-wozniak-and-pawel-kwiatkowski-promoted-to-managing-associate/