TGC Corporate Lawyers Legal review – April 2024

Newsletter – changes in regulations and interesting decisions – April 2024.

1. The concept of “entrepreneur” in recent case law – controversy

The concepts of “entrepreneur” and “business activity” are defined in the Law of Entrepreneurs of 6 March 2018 (Journal of Laws 2018.646). A number of other specific acts clarify those concepts for the needs of particular legal disciplines and various spheres of state activity, recognizing certain types of activities and entities as entrepreneurs or denying them this status. A clear distinction between what is and what is not a “business activity”, as well as who can enjoy the status of “entrepreneur” and who cannot, are crucial for the efficient economic functioning of the state and transparent activities of market entities, but they still give rise to controversy.

In recent months, those concepts have been of particular interest to common and administrative courts, as mentioned in our article. The cases mentioned in the text concerned various aspects of that issue and different disciplines of law, but they nevertheless seem interesting for outlining the problems that may arise when classifying market entities as “entrepreneurs” or their activities as functionally corresponding to the definition of “business activity”.

Learn more – read the article

2. The draft Act on the Protection of Whistleblowers in the Sejm. What solutions does it provide?

The Council of Ministers has adopted a draft Act on the Protection of Whistleblowers. This is the next stage of regulating the protection of whistleblowers.

The protection will cover whistleblowers regardless of the basis and form of work or service. However, the most important change compared to previous proposed regulations is the change in the amount of damages that can be claimed by a whistleblower against whom retaliatory action has been taken. According to the latest changes, the whistleblowers will be entitled to seek compensation in the amount not lower than the average monthly salary across all industry sectors in the previous year (in 2023 it amounted to PLN 7155.48) for any retaliatory action taken against them. The previous draft provided for compensation of 12 times the average salary.

The Ombudsman will be the institution responsible for providing information and support to whistleblowers and for receiving external reports. In the case of external reports, the Ombudsman is to carry out their initial verification and then refer the case to a public institution competent for its substantive examination.

The new solutions are to enter into force after 3 months from the date of their publication in the Journal of Laws. The provisions on external reporting will start to apply 6 months after the date of publication. First, however, the new regulations must go through the legislative procedure.

As the government’s draft act on the protection of whistleblowers was submitted to the Sejm as late as 17 April 2024, we may have to wait a little longer for the new whistleblower regulations to come into force.

Read the article

3. The Ministry of Digital Affairs has started work on the implementation of the Data Act

The Data Act will be applied from 12 September 2025. The basic premise of the act is, among other things, to increase data availability, ensure fair access to data and stimulate competition in the market. The Data Act introduces into the Polish legal order the EU EP and Council Regulation 2023/2854 of 13 December 2023 on harmonised rules on fair access to and use of data and amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828.

The Ministry of Digital Affairs is conducting a public pre-consultation until 30 April, mainly on issues related to selecting the competent authority or authorities in the national legislation implementing the Data Act.

The Data Act is intended to regulate the exchange of data between, inter alia, entrepreneurs and between the entrepreneurs and the public administrations by:

• establishing horizontal rules laying down cases of mandatory data sharing between economic operators in situations where the obligation to share data arises under EU law;
• preventing unfair contractual arrangements between companies on access to and use of data;
• adopting rules allowing public sector bodies to access and use data held by the private sector which is necessary in exceptional circumstances;
• introducing measures to facilitate switching between cloud computing providers and the introduction of standards for interoperability of data and data services.

The EU Data Act is available on the website of the Official Journal of the

European Union.

4. Draft act on collective bargaining and collective agreements

A draft act on collective bargaining and collective agreements has appeared in the Legislative Work List. The main premise of the proposed regulation is to significantly expand the catalogue of matters regulated by a collective agreement by opening it up completely, while limiting the period for which fixed-term agreements are concluded: to 5 years for a company agreement and to 10 years for a collective agreement.

The draft also envisages other solutions, including simplifying the procedure for extending an agreement by making this extension conditional on the employer and the trade unions interacting with it. Simplifications are also expected to apply to the process of registering collective agreements, both company and collective agreements.

The proposed solutions are intended to revitalise bargaining and increase the use of collective agreements. The aim is also to encourage employers to enter into agreements.

The planned date for adoption of the draft by the Council of Ministers is Q3 2024.

5. Draft act on support for Ukrainian citizens – important changes

The amendment of the act on support for Ukrainian citizens fleeing war is taking shape. The Ministry of Interior and Administration is continuing work on the announced amendment to the Act on support for Ukrainian citizens in connection with the armed conflict on the territory of that country. The draft envisages a number of changes to the provisions on the legal employment of Ukrainian citizens in Poland, in force since 24 February 2022.

The most important of the proposed changes are:

• shortening from 14 to 7 days the deadline for an employer to send a notice of employment to a Ukrainian citizen,
• extending the legal stay of a Ukrainian citizen in Poland until 30 September 2025.

The extension of legal residence in Poland for Ukrainian citizens seeking refuge from war is a step in the right direction, but some of the solutions contained in the draft law still need to be further clarified, according to experts, in order to take care of the interests of both Polish employers and Ukrainian workers.

The draft act amending the law on support for Ukrainian citizens in connection with the armed conflict on the territory of Ukraine and certain other laws is available on the website of the Government Legislation Centre.

6. Webinar: Collective redundancies – how to proceed legally?

Are you an employer facing collective redundancies? Do you want to learn how to prepare for such a process in order to minimise its potential negative effects on your company and employees? Learn how to legally carry out collective redundancies form our webinar recording.

Watch the recording

7. Webinar: Webinar: Starting Business in Poland 2024

Poland stands out as a highly sought-after business destination in Europe. Its strategic central position, appealing labour market, and favourable conditions for international investors are among the advantages offered to entrepreneurs establishing their ventures in the country. Discover why Poland is the best place to start a business.

We invite you to watch the recording of the webinar “Starting Business in Poland 2024”.

The webinar is dedicated to entrepreneurs and investors wishing to enter the growing Polish market. The recording is available in English only.

Learn more, watch the recording!

Download brochure: Doing business in Poland