From 18 October 2015 amendment to the civil code, which introduces fundamental changes in the inheritance law, comes into force.
So far, in order to free oneself from the debts of the testator, the heir had to submit a declaration of the inheritance acceptance with the benefit of inventory, within six months from the opening of inheritance, i.e. death of the testator.
After the amendment comes into force, if the heir does not submit a declaration within the aforementioned time, it will mean the inheritance acceptance with the benefit of inventory.
Inventory is a list of inheritance assets, which can be made before a notary or on the right form in a court. Inventory shall be a certain amount and only to which the heir shall discharge a debt after the deceased. It is noteworthy that there is no specific date for making it.
Date: 15 October 2015
Some time ago we wrote about content of the judgement dated 23 June 2015 of the Constitutional Tribunal (SK 32/14), where it was stated that the regulation indicating the amount of compensation for the infringement of proprietary copyrights is unconstitutional.
The Constitutional Tribunal ruled that art. 79 paragraph 1 point 3 letter b of Act from 4 February 1994 on copyrights and related rights, to the extend, in which the right holder, whose proprietary copyrights have been infringed, may request the party, who infringed these rights, for compensation of damage by payment in the amount equal to – in case of culpable infringement – three times appropriate remuneration, which at the time of its request would be due in respect of the entitled person consent for the usage of the work, is contrary to art. 64 paragraph 1 and 2 in relation to art. 31 paragraph 3 in relation to art. 1 of the Constitution.
Month before the aforementioned judgement dated 15 May 2015 was passed (file reference no. V CSK 41/14) the Supreme Court asked the European Court of Justice for the interpretation:
“can article 13 of directive 2004/48 WE of the European Parliament and European Council dated 29 April 2004 on the enforcement of intellectual property law be interpreted is such a way that the entitled person, whose proprietary copyrights were infringed, may demand (…), specified lump-sum compensation in advance, which makes doubleness or three times appropriate remuneration (…) based on article 13 of directive, considering that in point 26 of its preamble it is provided that the aim of the directive is not the introduction of punitive damages”.
Content of the Supreme Court legal inquiry:
http://www.sn.pl
Date: 05 October 2015
Amendment covers: optimisation of the law on allowed public use, introduction of remunerations for library lending, allowance of the orphan works usage, introduction of mechanism concerning using unavailable works in trade flows and allowance to publish works set in so called public domain with no obligation to pay the fee to the Creativity Promotion Fund (Fundusz Promocji Twórczości).
The amendment i.a. clarifies so called educational exception, meaning right to free and unlicensed work usage. The right is granted only to educational institutions (e.g. kindergartens, schools, universities, scientific units).
Additionally, the provisions concerning allowed educational usage within so called e-learning, but addressed to specific closed circle of entities, have been extended.
Libraries, archives, museum and schools have been granted right to create works’ digital copies in order to supplement, save and protect own collections, also to allow so called incidental usage of works, meaning usage unintended and not being an integral part of the broadcast, e.g. an amateur material, made available by the Internet user, appearing in the background.
The amendment is to facilitate the orphan works usage, i.e. excluded from the usage considering lack of opportunity to contact authorised person and get permission to use the work.
Date: 11 September 2015
On 17 August 2015, the ordinance of the European Parliament and the Council of the European Union no. 650/2012 dated 4 July 2014, on jurisdiction, applicable law, recognition and execution of judgements, accepting and drafting official documents concerning inheritance, and on enactment of the European Certificate of Succession, came into force. On the same day, law dated 24 July 2015, on amending the law – Code of Civil Procedure, the law – Notary Public Law, and other laws (Journal of Laws item 1137), came into force.
Above-mentioned ordinance shall apply to any successions after persons deceased on 17 August 2015 or after this day.
Rules of jurisdiction and applicable law in above-mentioned cases have been based on one inheritance – one court – one law rule. Thus, all matters concerning the whole inheritance after particular person, i.e. all their assets, regardless in which country they are, shall be resolved by only one Member State’s courts, based on provisions of only one law – preferably, the one that exists in the court’s country.
The ordinance neither harmonises substantive inheritance law nor specifies bodies or procedures in succession cases. Hereby issues regulate particular Member States.
Date: 4 September 2015
Company did not conclude an agreement with the publisher, thus in the lawsuit the publisher demanded discontinuation of such actions and every published article to be deleted from the database. The District Court in Poznan decided that the publisher had not proven the articles being works under protection of copyrights and related rights act (Journal of Laws from 2006 no. 90, item 631 with amendments). According to the Court, it is not obvious, and the plaintiff did not present the expert’s opinion, which would prove that, and who would state that they are not able to make such evaluation by themselves, as it requires “special information” (judgement of the District Court in Poznan from 29 October 2014, file reference no. IX GC 699/12).
The above opinion was not shared by the appeal court. The Court of Second Instance referred the case for rehearing and indicated that the court should decide by themselves whether the articles indicated in the lawsuit are understood as works.
“The case concerns writing materials dealing with popular themes, thus very easy in reception for an average reader. Specialist knowledge within the area of, e.g. art, architecture or IT, was not required for the evaluation whether the articles presented by the plaintiff are of creative and individual nature. The Court of First Instance had the access to the questionable press articles, and could get familiar with them and determine whether such article is of an individual or creative nature” - pointed in the judgement’s justification made by the Court of Appeal in Poznan in judgement from 1 July 2015 (file reference no. I Aca 124/15). “Feature of a creative process is it being subjectively new for the creator themselves. In other words, the process should be a result of an independent creative effort, begin in the creator’s mind, and the result of the author’s creative activity should be previously unknown.”
Date: 19 August 2015
On 25 August 2015, during the General Shareholders Meeting of the ATHOS VENTURE CAPITAL S.A. company based in Torun, composition of the Supervisory Board was changed. The new member of the body became Attorney-at-Law Anna Trocka.
In 2013, ATHOS VENTURE CAPITAL S.A. COMPANY (formerly: CDE S.A.) was listed on the NewConnect market.
The company specializes in provision of services for the financial market. The main activity of the company focuses on financial mediation related to the securities market.
Date: 25 August 2015
The Supreme Court in judgement dated 22 April 2015, file reference no. II PK 166/14, indicated that the definition of the Labour Law says that single or repeated occurrence of mobbing during short period of time is insufficient as the relevant feature of mobbing is persistent and long-lasting harassment or intimidation of the employee. It is assumed (especially in psychological works) that long-lasting psychological terror in workplace covers period of at least six months. However, it is posited that duration of the psychological terror has to be evaluated individually. Thus, it should not be precluded that with high intensity of harassment or intimidation of the employee, five-week-period can be enough; especially with person of sensitive psyche.
The Supreme Court founded that the employee was humiliated by the employer within short period of time of five weeks, which is hard to be taken as long-lasting harassment. Moreover, the person was not isolated from the group of their colleagues, which constitutes a premise for founding such an activity as mobbing.
The Supreme Court indicated, however, that in such a case the employee may demand compensation for infringement of personal interests before the court on the basis of Article 24 and 448 of the Civil Code.
Date: 7 July 2015
The Constitutional Tribunal ruled that art. 79 paragraph 1 point 3 letter b of Act from 4 February 1994 on copyrights and related rights to the extend, in which the right holder, whose proprietary copyrights have been infringed, may request the party, who infringed these rights, for compensation of damage by payment in the amount equal to – in case of culpable infringement – three times appropriate remuneration, which at the time of its request would be due in respect of the entitled person consent for the usage of the work, is contrary to art. 64 paragraph 1 and 2 in relation to art. 31 paragraph 3 in relation to art. 1 of the Constitution.
In the contested regulation the amount of indemnification was fixed as “three times appropriate remuneration, which at the time of its request would be due in respect of the entitled person consent for the usage of the work”.
The Constitutional Tribunal decided that: “contested regulation infringes proportionality principle and constitutes too far reaching integration in financial freedom of tortfeasor. (…) it is unacceptable that entitled person under proprietary copyrights is given possibility to claim for such a compensation, which entirely separates from the amount of damage suffered and is multiple thereof. Implementation of lump sum elements to the compensation cannot lead to total loss of proportion between the amount of damage suffered and indemnification.”
However, the aforementioned Tribunal’s judgement shall not have the effect of depriving entitled persons under proprietary copyrights of their rights. They still may use other complaints contained in art. 79 of Act on copyrights and related rights, including – claim for compensation of damage suffered on general regulations.
Judgement of Constitutional Tribunal dated 23 June 2015, file reference no. SK 32/14
Date: 23 June 2015
The Prague Quadrennial (PQ) is the biggest exhibition event in the world dedicated to visual arts. Instytut Teatralny im. Zbigniewa Raszewskiego is the coordinator of the Polish expositions on PQ 2015, and the Ministry of Culture and National Heritage is the organiser.
The curator of the Polish National Exposition is Agnieszka Jelewska. The exhibit was created by the team of artists and experts: Michał Cichy, Paweł Janicki, Michał Krawczak and Rafał Zapała, and also architect and scenographer Jerzy Gurawski.
Polish work of Students’ Expositions, which authors are Małgorzata Wdowik, Tamara Antonijevic and Robert Läßig, was among three exhibitions nominated in the category of the most promising talents (along with Czech and Latvian exposition – awarded a Gold Medal).
Our Legal Office provides Instytut Teatralny im. Zbigniewa Raszewskiego with legal service, including i.a. organisation of exhibitions on PQ 2015.
Congratulations on such a huge success.
The Minister of Finance changed rules concerning submission of motions for issuance of individual interpretations.
Motions relating to the corporate income tax should be filed to the Director of Tax Chamber: in Bydgoszcz, Katowice, Poznań or Warsaw (competent for the place of residence or seat of the applicant).
However, in cases concerning personal income tax and VAT, motions should be filed to the Director of Tax Chamber: in Bydgoszcz, Łódź, Katowice, Poznań and Warsaw (competent for the place of residence or seat of the applicant).
In cases concerning other taxes than mentioned above, motions should be filed to the Director of Tax Chamber: in Warsaw or Katowice.
It is also worth noting that from 1 July 2015, a new specimen motion for issuance of individual interpretations ORD-IN and appendix ORD-IN/A, shall apply.
Bank enforcement title unconstitutional (BET) is a document which indicates the existence of due payment of a bank to a person, who was granted, for example a credit, or who established collateral of receivables for the bank. If the agreement requirements are not fulfilled by the other party, bank issues BET. BET requires an enforcement clause to be granted by the court and thus is the basis for the initiation of enforcement debt collection.
However, on 14 April 2015, the Constitutional Tribunal ruled that art. 96 paragraph 1 and art. 97 paragraph 1 of Act from 29 August 1997 – Bank Law, are contrary to art. 32 paragraph 1 of the Constitution. Provisions shall expire on 1 August 2016. Thereby, the CT questioned constitutionality of this instrument.
The Constitutional Tribunal has ruled that the right to issue BET is banks’ privilege, infringing equal treatment rule (art. 32 paragraph 1 of the Constitution) in three aspects: relationship between bank and their client; relationship between banks as creditors and other entities being creditors; and relationship between banks’ debtors and other entities’ debtors.
The CT pointed out that the banks, beyond BET, have a wide range of means of collateral, in particular bill of exchange, which may become basis for the issuance of order of payment within art. 491 and art. 492 of CCP.
Lack of possibility to issue enforcement titles shall give debtors the right to substantive resolution of the case by the court.
On 8 January 2015, an amendment was introduced to the Pharmaceutical Law (Act of 19 December 2014, amending the law - Pharmaceutical Law and other laws). Most of these provisions will come into force after thirty days from the date of the announcement - on 8 February 2015. The changes shall seal the supervision of the manufacturing and marketing of medicinal products and help to reduce the health risks that may arise as a result of the market penetration of falsified medicines. The above mentioned act introduces, among others, definition of falsified medicinal product. The amendment of the aforementioned act also harmonizes the rules for the authorization of the manufacture and import of medicinal products by the introduction of common regulations in relation to both types of permits and resignation from the establishment of a separate form for imports.
On 25 December 2014, an amended Article 172 of Act 1 of the Telecommunications Act has entered into force. Above mentioned provision regulates the marketing activities via telecommunications networks, including voice telephony services. As a result, from 25 December 2014 the operation of pharmaceutical telemarketing requires permission from each customer transmitted in this way commercial communications.
The Warsaw Stock Exchange (WSE) intends to introduce changes in the project "Best Practice for WSE Listed Companies". Therefore, WSE launches public consultations, to which it invites capital market participants, i. a. institutions, organizations, companies, experts and representatives of science. Consultations are intended to develop a more transparent and understandable rules that will be compatible with both the needs and the expectations of the market.
Draft amendments to the "Best Practice for WSE Listed Companies" are available on the website: www.corp-gov.gpw.pl
Comments on the project and proposals and demands related to the content and structure of a set of Best Practice, as well as the rules and regulations concerning the application of the principles of corporate governance, should be sent to: dobrepraktyki@gpw.pl, by 28 February 2015.
On 16 January 2015, the Polish Sejm had passed an act on Renewable Energy Sources (RES), which introduces new rules to promote energy produced from renewable sources. Now, the document will be discussed by the Senate of the Republic of Poland.
The key solution in relation to the existing provisions on the promotion of renewable energy is to change the system of certificates of origin for the auction system. According to the Act, the government has to decide how much renewable energy is needed. Then the auction is announced, which is awarded to the tenderer offering the lowest price. In return, the tenderer gets guarantee of support for fifteen years.
On 15 January 2015, the Polish Sejm adopted amendments to the Act on biocomponents and liquid biofuels. Now the bill will be sent to the President for signing. The implementation of changes will adjust Polish law to the requirements of the EU directive on the promotion of renewable energy sources.
In its decision of 21 October 2014 (Case C-348/13), the Court of Justice of the European Union has dealt with the issue of the legality of embedding - "setting" media files on the website which have previously been available elsewhere.
According to the Court, the embeddement of the film on another website does not constitute "sharing" within the meaning of the article 3 of Act 1 of Directive 2001/29/EC. The Court pointed out that the premise of sharing is to present new audience with the work or the use of new technologies and means of communication, in order to distinguish them as a new form of distribution.
In the case C-348/13, the above mentioned condition was not satisfied, because the embedded film has already been publicly available on YouTube. The subsequent sharing on a website did not make it known to a wider audience, though. Moreover, the film was embedded without any technologies other than previously used. In the Court's view, the fact that the film was placed on YouTube without the authors permission was irrelevant. In this case, the person posting a video already available on other Internet portal, does not infringe any copyright, because the film has previously been shared publicly. Therefore, the conditions of sharing are not met within the meaning of the article 3 of Act 1 of Directive 2001/29/EC.
On 25 December 2014, the Act of 30 May 2014 on consumer rights came into force; which repealed the Act of 2 March 2000 on the protection of consumer rights and liability for damage caused by dangerous products, and the Act of 27 July 2002 on special conditions of consumer sales and amendment of the Civil Code.
The Act amends the responsibility for defects of items, harmonizing the regime of responsibility, includes new regulations concerning distance contracts and off-premises contracts (i. a. the deadline to withdraw from such contracts has been extended to fourteen days, a wide range of information obligations has been applied).
Representatives of the PTS company (formerly Telekomunikacja Dzień Dobry) suggested that they represent the consumers' current operator and proposed reneval of the contract to consumers on more favorable condidtions. In fact, they offered a contract with a new telecommunication entrepreneur. The Office of Competition and Consumer Protection ordered to abandon these practices and imposed penalties totalling over 350 000 PLN.
On January 18 2015, the amendment to the antitrust laws comes into force, which strengthens the protection of the market against cartels and will warn consumers against fraudulent activities that may expose them to significant financial losses.
Vectra automatically prolonged contracts, which were concluded for a definite time of six months. The company's clients were not able to make independent decisions regarding the further use of services. For violation of the collective interests of consumers, President of the Office of Competition and Consumer Protection (UOKiK) imposed a fine totalling over 490 000 PLN.
In its judgement from 5 December 2013 (V CSK 30/13), the Supreme Court stated that the settlement between entrepreneurs of the free of charge non-competition does not infringe the freedom of contract, after the termination of service provision agreement.
Non-competition was specified in the agreement the man concluded with the company operating on the market of items used for multi-format print. It was to be in an effect during the agreement period and year after its termination. It stated that the man cannot conduct a competitive business, i.a. cannot sell plotters and any other materials used for multi-format print. In case of the infringement of non-competition, the man was to pay a contractual penalty of tenfold of their remuneration. Despite the prohibition, the man – after the termination of the agreement – he started working for a competing business. Thus, the previous firm requested the court to grant it a contractual penalty, wining in both instances.
Then, the man submitted to the Supreme Court, a cassation appeal.
The Supreme Court considered as acceptable to introduce non-competition to the agreement concluded on the basis of the Civil Code, which results from the principle of freedom of contract.
It should be indicated that the judgement from 11 September 2003 (III CKN 579/01, Lex) of the Supreme Court decided that free of charge liability of the entrepreneur to not establishing a competitive business for three years after the agreement termination, is contrary to social co-existence. Also, the judgement from 14 May 2013 of the Court of Appeal in Gdańsk (I ACa 174/13, Lex) had similar interpretation of the competitive business matter. The Supreme Court in its judgement from December 2013, liberised the approach to the remuneration for the refrain from the competitive business issue in civil-legal relationships.
In 2007, the state treasury demanded the payment of five million three hundred and seventy thousand zlotys of back rent from a company. The District Court awarded, in favour of the state treasury, the requested amount, and the court of the second instance confirmed the ruling validity. The company was put under liquidation. On 12 February 2010, the Supreme Court, reviewing the case for the first time, overruled two of the previous judgements concerning receivables being difference of charge due and charge paid. In March 2010, the company was deleted from the National Court Register (KRS). On 21 July 2010, the case was discontinued. Hence, the state treasury sued Jan M., the member of the company’s management board, claiming rent payment – five million zlotys for liability for an ineffective execution in relation to the company, which he managed.
According to Article 299 CCC, if an execution against a company is ineffective, members of the management board are jointly and severally liable for its obligations.
The Supreme Court pointed out that the defendant could not be liable for the company’s obligations from 2001, as it was in 2004 that he became the member of the management board. Thus, the Supreme Court dismissed the cassation of the state treasury. In the judgement from 13 March 2014 (CSK 286/13), the Supreme Court confirmed that the necessary perquisite of the company’s management board member liability, is the enforcement.
Amendment to the Public Procurement Law shall come for signature for the President. The amendment rises, so-called “small threshold”, from which the procedures provided for in the provisions on public procurement must be applied. Up to now, tenders were called for every purchase worth more than fourteen thousand euros, which slowed down the research conduct in the science sector. Now, thresholds rise for each entity, science institution (e.g. Polish Academy of Science (PAN)) and university. The Amendment encompasses the cultural institutions and is to facilitate, i.a. order of performances and concerts. The changes relate mostly to the sphere of science, and are to facilitate the planning and estimation of the order worth with highly developed structure.
In the judgement from 21 March 2014 (IV CSK 407/13), the Supreme Court stated that Zamość authorities infringed personal copyrights of the Festival of Italian Culture, as they did not place the festival authors’ surnames on the Internet, in the film, on posters and calendar.
In Zamość in 2009, II Festival of Italian Culture took place, to which the collection of one hundred costumes and choreography was prepared by artist Beata W., who organised “Venice Carnival” parade, and chose dancing etudes. Details of the “Venice Carnival” were stipulated in the agreement concluded between cultural centre in Zamość and the Music and Mask Theatre “Venezia” (Teatr Muzyki i Maski “Venezia”) run by Beata W. The agreement included regulations concerning the parade march, price, dancing performances. Beata W. was the director and author of the scenography. The festival programme could be recorded for Zamość promotional purposes, recording and photos were to be authorised by Beat W. Other use of the festival materials required separate agreements.
Lublin television made a film from the festival – Beata W. was not familiarised with the agreement with Lublin television. The film did not have the original music. The photoshoot with harlequins was organised to use the photos in the promotional calendar. The town printed the calendar, but without Beata W. as the costume author, harlequins’ heads were cut out and there was no background (historic Zamość).
Beata W. filed a suit to the court for compensation of the copyrights infringement and town’s apology for overlooking her surname in promotional materials and infringement of the work integrity. Courts of First and Second instance dismissed the suit, because grand of compensation is optional in relation to removal of gaps on Zamość website. The courts did not familiarise themselves with the disputable film, and yet were giving rulings.
Hence, Beata W. filed a cassation appeal to the Supreme Court, stating that Zamość was the television film co-producer, shown worldwide, which means that it is responsible for the performance of the agreement signed with the author, and the film content. The plaintiff’s accusation contained the infringement of Article 65 and 67 and Article 26 of the copyright law. According to them, the author may authorise to use the works in terms of fields of exploitation stipulated in the agreement, with specified scope, place and time of usage.
As a result of the cassation appeal, the Supreme Court revoked the judgement of the Appeal Court in Lublin from 5 March 2013, and remitted the case for re-examination. According to the Supreme Court, the mistake of the courts of both instances was to reject the author’s motion concerning watching of the film reporting the festival, which was significant for the settlement result.
Another right accusation was the fact that none of the judges noticed the personal copyrights infringement. These rights are absolute, exclusive and not limited in time, and are to protect the relation between the author and their work. The author thus has the right to designate such work with their surname and pseudonym, to inviolability of the its content and form and accurate use, to decide about the first release of the work to the public, and supervision on its usage (Article 16 of the copyright law).
Sued town infringed authors’ personal copyrights because it did not put the performance authors’ surnames on the Internet, on posters and the calendar.
The Supreme Administrative Court in verdict from 25 March 2014 (I OSK 2320/13) stated that non-official emails are not public information.
On November 2012, the Polish Chamber of Commerce for Electronics and Telecommunication asked the President of the Office of Electronic Communication (OEC) for the letter sent to the president of OEC from one of the carriers, it was also demanded to disclosure mails between employees of Telekomunikacja Polska and other carriers, and the president of OEC.
The president of OEC informed the Polish Chamber of Commerce (PCC) that he gives them any non-confidential information subject to the motion. The letter contained also an annex with a response form for the motion concerning provision of public information. He pointed in it that i.a. emails, mentioned in the motion, are not public information in relation to the act from 6 September 2001 on the public information access. Quoting the judicial decisions of the Supreme Administrative Court, “correspondence of the natural person also sent via Internet are private, also when used in business. It may be considered as so-called “internal documents”, which do not determine authorities actions and are not their official position (verdict SAC from 21 June 2012 under reference I OSK 666/12)”. Thereby, the authority recognised that the email is not “public information”, which can be available under the law on access to public information. Particularly speaking, correspondence is not an official document, mentioned in Article 3 paragraph 1 point 2 of the abovementioned law on access to public information.
In March 2013, the Chamber of Commerce issued an appeal to the Province Administrative Court in Warsaw, concerning the President of OEC inactivity, stating that any mails between the President of OEC and the employees of OEC and other entities, regardless the form, concerning public activity of the President of OEC relates to public matter and should be made available.
The Province Administrative Court dismissed the complaint agreeing with the Supreme Administrative Court’s view, included in the judgement from 14 September 2012 (I OSK 1203/12), according to which: “correspondence, also emails of a person performing public activities, with their co-workers, is not public information, even if it concerns public actions in some part.”
The Chamber of Commerce filed a cassation against the judgement of the Province Administrative Court, accusing the judgement of incorrect interpretation of public information.
The Supreme Administrative Court upheld the I instance judgement, because according to its opinion emails, if not being official, are not public information. In this case correspondence had merchant secrecy and its disclosure would violate good morals.
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