Month: June 2023
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Month: June 2023

Mastering Corporate Law in Poland: A Comprehensive Guide for Lawyers

Introduction:

Corporate law forms the foundation of business transactions and governance in Poland. As a lawyer practicing in this field, it is essential to possess a comprehensive understanding of the country’s corporate legal framework to provide effective advice and representation to clients. From formation and governance to mergers and acquisitions, corporate law encompasses a wide range of legal principles and practices. This article serves as a comprehensive guide to navigating corporate law in Poland.

Company Formation and Structure:

The process of forming a company in Poland involves complying with legal requirements and selecting an appropriate business structure. Lawyers must guide clients through the registration process, including drafting articles of association, determining share capital, and ensuring compliance with the Commercial Companies Code. Understanding the distinctions between various types of entities, such as joint-stock companies, limited liability companies, and partnerships, is crucial when advising clients on the most suitable structure for their business.

Corporate Governance:

Corporate governance plays a vital role in promoting transparency, accountability, and the protection of shareholders’ rights. Lawyers must assist clients in developing effective governance structures, including drafting bylaws, shareholder agreements, and board charters. They must also provide guidance on directors’ duties, conflicts of interest, and corporate disclosure obligations.

Shareholders’ Rights and Disputes:

Protecting shareholders’ rights and resolving disputes is a critical aspect of corporate law. Lawyers must advise clients on matters such as shareholder agreements, voting rights, dividend distributions, and the exercise of minority shareholders’ rights. In case of disputes, they must navigate mediation, arbitration, or litigation to safeguard clients’ interests and seek equitable resolutions.

Mergers, Acquisitions, and Corporate Restructuring:

Mergers, acquisitions, and corporate restructuring transactions require comprehensive legal expertise. Lawyers must guide clients through due diligence, negotiate and draft agreements, and secure regulatory approvals. They must have a deep understanding of antitrust regulations, tax considerations, employment law implications, and intellectual property rights. Effective negotiation skills and attention to detail are crucial for achieving successful outcomes in these complex transactions.

Compliance and Regulatory Matters:

Compliance with corporate regulations and industry-specific laws is essential for businesses operating in Poland. Lawyers must advise clients on legal obligations, such as financial reporting, data protection, competition law, and anti-corruption measures. They must stay up to date with regulatory developments and guide clients in implementing effective compliance programs to mitigate risks.

Corporate Litigation and Dispute Resolution:

Corporate disputes can arise from breaches of contracts, shareholder disputes, or boardroom conflicts. Lawyers must have expertise in corporate litigation and alternative dispute resolution methods. They must possess strong negotiation, mediation, and litigation skills to represent clients effectively and seek favourable resolutions.

Conclusion:

Corporate law forms the backbone of business operations and transactions in Poland. Lawyers practicing in this field must possess a comprehensive understanding of the legal framework, corporate governance principles, and transactional intricacies. By mastering corporate law, lawyers can provide clients with sound advice, guide them through complex transactions, and help them navigate potential legal challenges. Understanding the nuances of corporate law in Poland empowers lawyers to protect clients’ interests, ensure compliance, and contribute to the success of their corporate endeavours.

How We Can Assist You in Real Estate and Construction Law Matters

At our firm, we have extensive experience in handling a wide range of real estate and construction law matters. Our team of dedicated lawyers is committed to providing top-quality legal services tailored to meet your specific needs. Here’s how we can help you:

Purchase and Sale of Real Estate:

We represent investors in navigating the complex process of buying and selling real estate. Our team will guide you through the transaction, ensuring that all legal aspects are handled efficiently and effectively.

Lease and Sale-and-Lease Back Transactions:

Whether you are a landlord or tenant, we provide comprehensive legal representation in lease and sale-and-lease back real estate transactions. Our lawyers will negotiate and draft agreements that protect your interests and ensure a smooth transaction.

Development Projects:

For developers, we offer legal support in commercial and residential projects. From due diligence reviews to organizing permits and administrative decisions, we will provide guidance throughout the development process.

Construction Issues and Permits:

Our team assists clients in addressing contentious and non-contentious construction issues. We handle matters related to land use, planning, permitting, and environmental compliance. We also represent clients in proceedings to obtain permits and administrative decisions.

Taxation and Real Estate:

We understand the importance of tax efficiency and security in real estate transactions. Our lawyers provide expert advice on taxation matters related to real estate, including purchase/sale of land and buildings, tax investment relief, income tax implications, value-added tax (VAT), and real estate tax.

Dispute Resolution:

In the event of disputes with tax authorities or other parties, we have the expertise to represent you effectively. Our team will navigate the legal process, leveraging our experience and knowledge to protect your rights and achieve a favourable outcome.

Official Tax Interpretations:

If you require official tax interpretations for your specific circumstances, we can assist you in preparing formal applications. Our applications go beyond presenting facts and include comprehensive legal arguments and positions. Our goal is to present arguments that are readily accepted by tax authorities, ensuring a smooth and efficient resolution.

Legal Analysis and Jurisprudence:

To provide you with the best possible advice, we continuously analyze administrative court decisions and interpretations of tax authorities. This allows us to stay up to date with current legal status and practices, enabling us to provide you with informed and effective assistance.

Summary:

When it comes to real estate and construction law matters, our dedicated team is here to provide you with exceptional legal services. From purchase and sale transactions to tax implications and dispute resolution, we have the expertise to guide you through every step of the process. Contact us today to discuss your specific needs and let us help you achieve your goals in real estate and construction.

Navigating Real Estate and Construction Law in Poland: A Comprehensive Guide for Lawyers

Introduction:

Real estate and construction law in Poland is a dynamic and multifaceted area of legal practice that requires a deep understanding of the country’s regulatory framework, property rights, and construction processes. For lawyers practicing in Poland, having a comprehensive grasp of real estate and construction law is essential to effectively represent clients in matters ranging from property transactions to construction disputes. This article serves as a comprehensive guide, covering key aspects of real estate and construction law in Poland.

Property Transactions:

Real estate transactions in Poland involve intricate legal processes. Lawyers play a pivotal role in conducting due diligence, reviewing contracts, and ensuring compliance with legal requirements. Understanding property rights, ownership structures, and registration procedures is essential. Lawyers must navigate issues such as land use restrictions, zoning regulations, and environmental considerations to safeguard clients’ interests.

Construction Contracts:

Construction projects require meticulous contract drafting and negotiation. Lawyers must be well-versed in construction law provisions and industry-standard contracts in Poland, such as the General Conditions of Contract (GCC) and FIDIC contracts. Ensuring clear terms regarding project scope, timelines, payment schedules, warranties, and dispute resolution mechanisms is crucial to mitigate potential conflicts and protect clients’ rights.

Permitting and Regulatory Compliance:

Compliance with regulatory requirements is a critical aspect of real estate and construction law. Lawyers must guide clients through the permitting process, including obtaining building permits, environmental assessments, and approvals from relevant authorities. Familiarity with zoning regulations, land use planning, and construction standards is essential to ensure adherence to legal obligations and mitigate potential risks.

Construction Disputes:

Disputes arising from construction projects can be complex and costly. Lawyers must be prepared to handle various types of disputes, including contract breaches, delays, defects, and payment issues. Understanding dispute resolution mechanisms, including negotiation, mediation, arbitration, or litigation, is crucial. Lawyers should possess strong negotiation and advocacy skills to effectively represent clients in resolving construction disputes.

Real Estate Development:

Real estate development involves a broad range of legal considerations, including land acquisition, project financing, permitting, construction contracts, and regulatory compliance. Lawyers play a central role in structuring and negotiating complex real estate development transactions, ensuring compliance with legal requirements, and protecting clients’ interests throughout the development process.

Real Estate Financing:

Financing is a critical aspect of real estate transactions and development projects. Lawyers must be well-versed in mortgage law, loan agreements, security instruments, and financing structures. They play a pivotal role in negotiating favourable financing terms, conducting due diligence, and ensuring compliance with financial regulations.

Conclusion:

Real estate and construction law in Poland is a complex and evolving field. Lawyers practicing in this area must possess a comprehensive understanding of the legal and regulatory landscape, as well as industry practices. From property transactions to construction disputes, lawyers play a crucial role in protecting clients’ rights and ensuring compliance with legal requirements. By navigating the intricacies of real estate and construction law in Poland, lawyers can effectively represent clients, provide sound advice, and contribute to successful outcomes in real estate and construction matters.

How We Can Assist You in Real Estate and Construction Law Matters?

At KPBL, we have extensive experience in handling a wide range of real estate and construction law matters. Our team of dedicated lawyers is committed to providing top-quality legal services tailored to meet your specific needs. Here’s how we can help you:

Purchase and Sale of Real Estate:

We represent investors in navigating the complex process of buying and selling real estate. Our team will guide you through the transaction, ensuring that all legal aspects are handled efficiently and effectively.

Lease and Sale-and-Lease Back Transactions:

Whether you are a landlord or tenant, we provide comprehensive legal representation in lease and sale-and-lease back real estate transactions. Our lawyers will negotiate and draft agreements that protect your interests and ensure a smooth transaction.

Development Projects:

For developers, we offer legal support in commercial and residential projects. From due diligence reviews to organizing permits and administrative decisions, we will provide guidance throughout the development process.

Construction Issues and Permits:

Our team assists clients in addressing contentious and non-contentious construction issues. We handle matters related to land use, planning, permitting, and environmental compliance. We also represent clients in proceedings to obtain permits and administrative decisions.

Taxation and Real Estate:

We understand the importance of tax efficiency and security in real estate transactions. Our lawyers provide expert advice on taxation matters related to real estate, including purchase/sale of land and buildings, tax investment relief, income tax implications, value-added tax (VAT), and real estate tax.

Dispute Resolution:

In the event of disputes with tax authorities or other parties, we have the expertise to represent you effectively. Our team will navigate the legal process, leveraging our experience and knowledge to protect your rights and achieve a favourable outcome.

Official Tax Interpretations:

If you require official tax interpretations for your specific circumstances, we can assist you in preparing formal applications. Our applications go beyond presenting facts and include comprehensive legal arguments and positions. Our goal is to present arguments that are readily accepted by tax authorities, ensuring a smooth and efficient resolution.

Legal Analysis and Jurisprudence:

To provide you with the best possible advice, we continuously analyze administrative court decisions and interpretations of tax authorities. This allows us to stay up to date with current legal status and practices, enabling us to provide you with informed and effective assistance.

Summary:

When it comes to real estate and construction law matters, our dedicated team is here to provide you with exceptional legal services. From purchase and sale transactions to tax implications and dispute resolution, we have the expertise to guide you through every step of the process. Contact us today to discuss your specific needs and let us help you achieve your goals in real estate and construction.

Navigating Litigation in Poland: A Comprehensive Guide for Lawyers

Introduction:

Litigation is a complex legal process that plays a fundamental role in resolving disputes within the judicial system. In Poland, as in any jurisdiction, litigation requires a deep understanding of the country’s legal framework, court procedures, and strategic considerations. For lawyers practicing in Poland, it is crucial to have a comprehensive understanding of the litigation process to effectively represent clients and achieve favourable outcomes. This article serves as a guide to navigating litigation in Poland, covering key aspects from pre-trial preparations to post-trial enforcement.

Preparing for Litigation:

Before initiating litigation, thorough preparation is essential. This involves conducting a detailed analysis of the facts, identifying legal claims, and assessing the strength of the case. Polish lawyers must meticulously gather evidence, interview witnesses, and assess potential legal remedies and defences. It is also crucial to evaluate the prospects of settlement or alternative dispute resolution methods.

Jurisdiction and Venue:

Understanding the appropriate jurisdiction and venue is crucial to initiating a lawsuit. In Poland, civil matters are generally adjudicated by common courts. It is important to determine the proper court that has jurisdiction over the dispute based on factors such as the subject matter, value of the claim, and the parties involved.

Pleadings and Court Proceedings:

Once the lawsuit is filed, lawyers must draft clear and concise pleadings that outline the claims, legal arguments, and factual basis. In Poland, court proceedings involve multiple stages, including preliminary hearings, submission of evidence, examination of witnesses, and oral arguments. Lawyers must adhere to strict deadlines and procedural rules, ensuring compliance with court requirements and effectively presenting their case.

Legal Representation and Courtroom Etiquette:

In Polish litigation, legal representation is mandatory, and lawyers have a duty to act as advocates for their clients. Courtroom etiquette, professionalism, and respect for the court are paramount. Polish lawyers must present arguments persuasively, cross-examine witnesses effectively, and handle objections with precision. Developing strong courtroom skills and maintaining a professional demeanour can significantly impact the outcome of a case.

Appellate and Supreme Court Review:

In the event of an unfavourable decision, the Polish legal system provides avenues for appeal. Lawyers must analyse the trial court’s decision, identify grounds for appeal, and prepare persuasive briefs. The appellate court reviews the case based on legal errors or procedural irregularities. In certain circumstances, the Supreme Court may grant further review, particularly when the case involves significant legal issues or conflicting precedents.

Enforcement of Judgments:

Securing a favourable judgment is only the first step; enforcing the judgment is equally critical. Polish lawyers must navigate the enforcement process, which involves identifying the appropriate enforcement authority, filing necessary applications, and complying with specific requirements. Effective enforcement mechanisms, such as asset seizures or garnishments, are crucial to ensuring the successful recovery of awarded damages or compliance with court orders.

Conclusion:

Litigation in Poland requires careful preparation, a strong command of procedural rules, and persuasive advocacy skills. As a lawyer practicing in Poland, it is imperative to understand the intricacies of the litigation process to effectively represent clients. From pre-trial strategies to post-trial enforcement, a comprehensive grasp of the legal framework and court procedures is essential. By mastering the intricacies of Polish litigation, lawyers can navigate the complexities of the legal system and advocate zealously for their clients, ultimately achieving successful outcomes in their cases.

How We Can Assist You: Exceptional Legal Representation for Your Needs

At KPBL, we are committed to delivering top-notch legal representation tailored to your specific needs. With our experienced legal team, you can trust that you will receive the best possible guidance and support in any legal matter you may face. We offer comprehensive legal services in various areas of litigation, ensuring that you have expert assistance throughout the entire process.

Labour Conflicts: Resolving Workplace Disputes

When it comes to labour conflicts, our lawyers excel in representing clients dealing with employment contract disputes, wage conflicts, and other workplace issues. We understand the complexities of employment law and are dedicated to advocating for your rights and finding swift resolutions.

Copyrights and Neighbouring Rights: Protecting Intellectual Property

Our legal team specializes in safeguarding and enforcing copyrights and neighbouring rights. Whether you are facing infringement cases or licensing disputes, we have the expertise to navigate the intricate landscape of intellectual property law and provide the effective representation you need.

Commercial Transactions: Resolving Contractual Disputes

When disputes arise from commercial transactions, such as breach of contract cases or disagreements related to the sale of goods and services, our lawyers are here to assist you. We will work diligently to protect your interests, explore favourable resolutions, and ensure that your rights are upheld throughout the process.

Personal Rights: Advocating for Your Well-Being

In matters concerning personal rights, including defamation, privacy concerns, or personal injury, our legal team is ready to fight for your rights. We understand the sensitive nature of these disputes and are dedicated to providing compassionate and effective representation to help you seek justice and fair compensation.

Guidance and Support Throughout the Litigation Process

We recognize that legal proceedings can be overwhelming and time-consuming. That is why we are committed to providing our clients with the highest level of professionalism, support, and guidance at every step of the litigation process. Our experienced lawyers will take the time to understand the details of your case, offer sound legal advice, and ensure that your interests are vigorously protected.

Schedule a Consultation Today

Don’t navigate the complexities of litigation alone. Contact us today to schedule a consultation and learn more about the extensive range of legal services we offer. Our dedicated team is here to provide you with the exceptional representation you deserve, helping you achieve the best possible outcome for your case. Let us be your trusted legal partner in your journey towards resolution.

Financial fraud and artificial intelligence.

Fraud often involves impersonation, and artificial intelligence (AI) has emerged as a potent tool that can effectively mimic human behaviour. This means that fraudsters can leverage AI to enhance the credibility, efficiency, and speed of their attacks.

AI possesses the potential to be employed for financial fraud, similar to any other technology. It can be utilised to impersonate individuals, automate phishing attacks, and manipulate data. To safeguard against the exploitation of AI for fraudulent purposes and mitigate potential risks, robust security measures must be implemented. Moreover, it is crucial to establish ethical guidelines governing the use of AI to prevent any misuse or abuse of this technology.

AI’s Role in Fraudulent Activities:

At the consumer level, AI can generate scripts that fraudsters use to deceive people over the phone and coax them into making unauthorised bank transfers.

On a larger scale, particularly concerning financial institutions such as banks and lenders, generative AI has the capability to create fabricated videos and photographs of non-existent individuals. In other words, AI can provide deceptive “evidence” to pass identity checks, enabling the opening of fraudulent accounts, execution of unauthorised transfers, and even the creation of (fake) assets or liquidity against which loans can be secured.

Recommended Actions:

The potential for AI to be employed in financial fraud cannot be overstated, especially considering the accessibility of powerful AI models like ChatGPT that anyone can utilise anonymously. Firms that may be at risk should take the following steps:

  • Scrutinise the authenticity of all identification documentation provided for anti-money laundering (AML) and know your customer (KYC) purposes. If possible, seek information from reputable third parties such as public registries or verification firms instead of relying solely on direct sources. In case of doubts, consult an in-house or external cybersecurity team.
  • Implement measures to ensure that existing clients and customers are not being “spoofed” or impersonated. This may involve employing multi-factor authentication and, in some cases, conducting face-to-face meetings to validate identities.
  • Train vulnerable staff members to recognise patterns indicative of financial fraud. Although the methods employed by fraudsters may have evolved with the use of AI, their underlying goals remain the same. Any unexplained or out-of-character transactions or borrowing without an apparent purpose should be regarded with suspicion, regardless of how convincing the supporting documentation appears.

Regulation of AI is inevitably on the horizon. In March of this year, the UK government published a white paper outlining its proposed “pro-innovation” approach to AI. However, AI is already pervasive, and the white paper itself acknowledges that “the pace of change itself can be unsettling.” In the interim, self-help is the best and only defence.

Disclaimer: This publication provides a general summary of the law and should not substitute for tailored legal advice based on your specific circumstances.

Non-transactional transfer of own goods between warehouses of the Amazon online trading platform located in different European countries.  Warsaw, June 3, 2023

The taxpayer’s dispute with the tax authorities centered around determining whether the ICS rate should be applied to the movement of own goods from the online platform’s warehouses in Poland to other EU countries. Specifically, the disagreement focused on whether the platform’s reports adequately documented the movement of goods to other countries.

The online platform functions as a cross-border network of warehouses, where the movement between warehouses corresponds to the movement of goods across different countries.

By participating in the PAN-UE program, sellers transfer their rights to distribute and store their own stock in various countries within the EU to the online trading platform. The platform charges for shipping, and sellers have the option to use “Fulfillment by Amazon” (FBA), wherein the platform handles the shipping process to customers on behalf of the sellers. Sellers who choose FBA deliver their items to designated warehouses, and based on an algorithm, the platform determines the European region with the highest demand for a particular product and moves the goods to warehouses nearest to potential buyers.

The platform is responsible for the transportation of goods, and the document provided by the platform should be considered a transport document for VAT purposes. Hence, the platform should be treated as a carrier or forwarder, supported by the detailed information in the reports, which document the inter-warehouse movements and specify individual pieces of cargo.

One peculiarity of using the platform’s services is that the seller may not require additional documents, other than the reports, which the authorities deem insufficient to document the ICS.

In an intra-Community supply, the taxation occurs in the destination country where the goods are ultimately moved. Such supplies are VAT-exempt with the right to deduct and taxed at a 0% rate. This exemption avoids double taxation and upholds the principle of fiscal neutrality upon which the common VAT system is based.

The transfer of a taxpayer’s own goods from one country to another within the EU represents a specific type of intra-Community supply. The general principles for intra-Community supplies of goods should be applied “appropriately,” meaning some provisions are applied directly without modifications, while others are adjusted to suit the specific circumstances. Sometimes, certain rules may not be applicable due to their inherent nature.

In the case of an intra-Community supply of own goods, the person moving the goods assumes the roles of both the supplier and the purchaser, as there is no transfer of ownership rights over the goods.

As a result, certain general regulations related to commercial correspondence and payment for goods can be omitted when documenting the movement of own goods since there is no correspondence or payment involved within the same entity.

The regulations require relevant export and delivery documents to apply the 0% rate for intra-Community supplies. However, in the case of an intra-Community transfer of goods, it is not possible to present a document confirming the export and delivery of goods to a buyer in another member state. Instead, the taxpayer should have documentation proving that their own goods, subject to intra-Community supplies, were exported from the country and delivered to a warehouse in a different EU member state.

In the case of non-transactional transfers of own goods, the taxpayer is still obligated to issue an invoice. While the invoice should contain all the necessary elements, considering the nature of non-transactional deliveries under the ICS, it is important to note that the invoice alone does not prove the ICS or the movement of goods between countries. Therefore, it is irrelevant whether a taxpayer with a Polish VAT-EU number issues invoices to themselves or uses a VAT-EU number assigned in another country to assess the movement of goods.

Failure to issue VAT invoices for intra-Community transfers may, however, indicate non-compliance with obligations related to VAT invoice issuance.

In cases involving traditional CMR-documented deliveries, the authorities typically request confirmation of the circumstances described in the consignment note and investigate the release and loading of goods, sometimes even interviewing drivers involved in specific deliveries.

The VAT Act does not specify the form of the transport document. As long as the content demonstrates that goods were exported from Poland, taxpayers may present various document formats to confirm non-transactional movements of goods. Consequently, the credibility and completeness of the reports generated by the platform are often at the core of disputes in online trading cases.

Disputed online transactions are commonly documented through reports, which record sales transactions by the platform in the form of an Excel file. These reports are usually accompanied by explanations from the platform regarding their structure and the terms and conditions of the platform’s services in Europe.

The Excel-based waybill differs from the traditional CMR document used when the owner of the goods (buyer or seller) or a hired carrier/forwarder handles the transport. There is no universally recognized, traditional form for moving goods internationally governed by Incoterms standards since it depends on the owner’s decision.

When evaluating evidence, including the reports from the platform, the general principles of law (including tax law) require logical assessment based on life experience. Given the specific nature of global e-commerce using automated warehouses across multiple countries, the existing experience in examining bills of lading, where forwarders act solely as carriers, needs to be adapted.

Therefore, the same rules of proof used to assess the value of other consignment notes, particularly CMRs, should be applied to evaluate the content of the Excel-based waybill.

According to administrative courts, it is arbitrary for tax authorities to disregard the sufficiency of the platform’s reports as evidence of goods movement under the ICS. Such disregard violates the principles of objective truth and trust.

In a case represented by our law firm, the court overturned the decision of the tax authorities and concluded that the allegations of inadequate ICS documentation were incorrect.

Bernard Łukomski
attorney-at-law
tax advisor
phone +48 608 093 541