As a service provider, we provide you below with important information on the subject of data protection, in particular about when personal data is collected and which personal data are included hereby.

Information from the service provider

BPN Braun Paschke Narloch Kancelaria Adwokatów i Radców Prawnych spółka komandytowo-akcyjna

Phone: 0048 (22) 854-29-10
Fax: 0048 (22) 844-43-21
email: info@braunpaschke.eu

Collection and storage of personal data as well as the nature and purpose of their use

Visiting our website

You can use our website www.polish-law.eu any time without giving any personal information.

If you contact us via the contact form on our website, we will collect and process the following (personal) data (according to the input fields of the contact form):

• your name,
• your phone number,
• your email address,
• Information on the subject of your request (your message).

When using our contact form

For questions of any kind, we offer you the opportunity to contact us via a form provided on the website. It is necessary to provide a valid e-mail address so that we know who the request came from and to be able to answer it. Further information can be provided voluntarily.

In addition we point out that our Internet presence is provided with an SSL connection, which ensures a secure data transfer, especially data submitted via the contact form.

The data processing for the purpose of contacting us is in accordance with Art. 6 para. 1 p. 1 lit. a GDPR based on your voluntarily granted consent.

The personal data collected by us for the use of the contact form will be deleted after completion of the request made by you. If there is no mandate agreement between you and our law firm, your personal data will be deleted immediately upon discovery of this fact.

The purpose of the data processing is to process your request and to contact you. Without processing your personal data in terms of GDPR, processing your request would not be possible.

The legal basis for this data processing is Art. 6 (1) sentence 1 lit. f GDPR. Our law firm has a legitimate interest within the meaning of GDPR to give you the opportunity to contact us with your matter.

Contact by phone, fax or e-mail

When you call us, personal data will be received and processed in form of your telephone number, your e-mail address, your first name and your name, as well as details of the circumstances described by you.

If you send us a fax, your fax number and the personal data resulting from the fax will be processed.

When submitting an email for the purpose of contact with us, we will process your email address, first name, name, and personal information contained in your email message.

The purpose of data processing is to process your request and to contact you. Without processing your personal data in terms of GDPR, processing your request would not be possible.

The legal basis for this data processing is Art. 6 (1) sentence 1 lit. f GDPR. Our law firm has a legitimate interest within the meaning of GDPR to give you the opportunity to contact us with your matter.

Use of Cookies

Our website www.polish-law.eu uses so-called cookies, small text files, which are stored temporarily on your device and are necessary for the proper functioning of our Internet pages. This applies on one hand to cookies, which are stored on your device only for the time spend on our Internet site (until you leave our website or until you close your Internet browser), and on the other, cookies that are stored for a longer period of time on your terminal device.

You can view the cookies used on our website when you right-click on the green lock before the https:// – marking and also use the right mouse button to select the cookie area.

Please note that if you use our website without changing the settings in the cookie section of your browser, you will give your consent to use the respective cookies. The exclusion of the use of cookies may lead to the fact that the service offered on our internet site will no longer be fully available.

Use of Google Analytics

This website uses Google Analytics, a Web analytics service of Google Inc. („Google“). Google Analytics uses so-called „cookies“, text files that are stored on your computer and which allow you to analyze the use of the website.

The information generated by the cookie about your use of this website is usually transferred to a Google server in the USA and stored there. However, in the event of the activation of IP anonymization on this website, your IP address will be shortened by Google within Member States of the European Union or in other contracting states of the Agreement on the European Economic Area. Only in exceptional cases will the full IP address be transferred to a Google server in the USA and truncated there.

Google will use this information to evaluate your use of the website, to compile reports on the website activities and to provide further services related to the use of the website and the Internet. The IP address submitted by your browser as part of Google Analytics will not be merged with other data from Google.

You can prevent the storage of cookies by setting your browser software accordingly; however, we would point out that in this case you may not be able to use all the functions of this website to their full extent. You can also prevent the collection of data generated by the cookie and related to your use of the website (including your IP address) to Google and the processing of this data by Google by downloading and installing the browser plugin available at the following link.

For more information on terms of use and privacy, see the Google Analytics conditions or the analytic review.

Incorporating You Tube Videos

Our web site uses embedded YouTube videos that come from our YouTube information channel. The integration takes place in the extended data protection mode. According to Google-YouTube, this means that no cookies are stored on your terminal device when viewing the respective Internet site. This will only occur when watching the individual video. If you watch the videos included on our website while you are logged in to your YouTube account, it cannot be excluded that this fact will be assigned to your user account on YouTube.

Information, correction and deletion of personal data

You have the right to contact us at any time and without charge in order to obtain information about your personal data stored by us as well as the purpose of data processing. In addition, you have the right to rectify incorrect data as well as to delete your stored data, as far as there are no legal contradictions to do so.

Phone: 0048 (22) 854-29-10
Fax: 0048 (22) 844-43-21
email: info@braunpaschke.eu

Der Beitrag Privacy statement erschien zuerst auf Braun Paschke Narloch Law Firm - legal and tax advice on Polish law.

The Polish police have the right to detain a suspected person in provisionally arrest, when there are reasonable grounds for believing that the person has committed a criminal offense and one of the following conditions exist:

• risk of escape or the risk that the suspected person will hide – i.e. the risk that the suspect attempts to evade criminal proceedings, or,
• danger of collusions – i.e. the risk that the suspect tries to blur the traces of criminal offense, which would complicate the determination of the truth.

It is important that the assessment of the existence of an escape risk or danger of collusions is being made on the basis of concrete facts. An abstract danger is not sufficient. In addition, the provisional arrest by the Polish police is allowed for the purpose to establish the identity of the suspected person, as well as in the presence of reasons for the implementation of an urgent procedure against the suspected person.

Your rights in case of a provisional arrest in Poland

An arrest by police officers is a very distressing time for the affected, particularly when it comes to an arrest abroad and the arrested has not mastered the Polish language. If the arrest is being conducted at night or in the evening hours, there is a high probability that the affected will remain in police custody at least until the next morning.

It is therefore important to know the rights that the detained is entitled to in accordance with the provisions of the Polish Code of Criminal Procedure:

1. Information on the reasons for the arrest

The person concerned has to be informed immediately after the arrest of the reasons for his arrest, as well as of the granted rights. It is important in this context that the arrested, who has not mastered the Polish language, has the right to request the assistance of an interpreter (free of charge). The affected person has furthermore the right to receive a copy of the protocol drawn up in association with his arrest.

2. Contact a defense lawyer

Particularly important is the right of the arrested to contact a lawyer immediately. The affected should make use of this right before making any substantive statements to the polish investigators.

Please note that in Poland after the arrest there is no possibility of visits of family members or friends at the place of the (pre-trial) detention. This right is only granted to the defense lawyer ordered by the arrested himself or his family. He has the possibility to visit the concerned and discuss with him the situation. The defense lawyer, after an initial conversation with the arrested, makes proposals for the defense strategy and gives notes as to which questions of the investigators can be answered by the arrested.

3. Review of the legality of the arrest

The interested party has the right to request a review of his arrest by the Court. This relates to the legality of the provisional arrest, which means the question, whether the conditions of the Polish Code of Criminal Procedure at the moment of the provisional arrest have been fulfilled. The appeal is to be submitted through the mediation of the body which has made the arrest to the locally competent Court in Poland. Here, the defense attorney after determination of the facts will prepare legal remedies within the term as foreseen by law of 7 days.

4. Duration of the provisional arrest in Poland

The arrested is to be released immediately after the reasons for his arrest are eliminated. It is important to know that the police have 48 hours from the moment of detention to put the arrested at disposal of the competent Court with a corresponding request for arrangement of detention. This however means that the prerequisites of pre-trial detention must apply.

The Court has in turn 24 hours to pass the decision on the use of pre-trial detention to the detained. Thus, the total duration of the provisional arrest in Poland shall not exceed 72 hours.

Der Beitrag Provisional arrest in Poland erschien zuerst auf Braun Paschke Narloch Law Firm - legal and tax advice on Polish law.

Pre-trial detention is the most important measure for safeguarding proper procedure of criminal proceedings in Poland. The Polish Code of Criminal Procedure stipulates that the pre-trial detention arrangement is only permissible if the purpose cannot be achieved by other measures. Thus the Polish Code of Criminal Procedure and others provides police supervision as well as the prohibition to leave the country (with the additional ability to seize your passport). In practice, pre-trial detention in Poland is, however, more often arranged as this would be necessary in respective cases.

The conditions for the use of pre-trial detention

Basically, the pre-trial detention may be arranged if there is a reasonable risk that the accused intends to withdraw the criminal proceedings by escaping or hiding. This is particularly true when the identity of the suspected person cannot be determined or if he has no permanent place of residence in Poland. In addition, the accused can be placed in pre-trial detention if there is a reasonable risk that he will force witnesses to false statements or in some other illegal way will attempt to obstruct the course of the criminal proceedings. Furthermore, the arrangement of pre-trial detention is allowed in case of a high probability that the accused intends to perpetrate a new felony.

The Polish Code of Criminal Procedure provides moreover the application of pre-trial detention as justified, if the suspect is accused to have committed an offense, which is punished with imprisonment with a maximum of at least 8 year’s imprisonment.

The arrest warrant and the right to appeal

Pre-trial detention may only be ordered by judicial decision (arrest warrant). This decision has information about the accused of the alleged offense, on its legal qualification as well as on the legal basis for the application of pre-trial detention. In addition, the arrest warrant specifies the length of the pre-trial detention, where the last day of the period must be precisely named, as well as the facts justifying the existence of the above conditions. In this context, of special importance are the explanations as to why the arrangement of another protection measure is not to be taken into consideration.

Any order for pre-trial detention should be in the framework of a complaint with the court of the II. Instance be checked, and this is also due to the fact that the pre-trial detention in Poland disproportionately often is applied. Each arrangement of pre-trial detention should be reviewed within the frames of an appeal at the Court of II instance, especially due to the fact that the pre-trial detention in Poland is used disproportionately frequently.

In any case, it is important that immediately following the arrest the person concerned or the members of his family contact an experienced defense lawyer, if this after the provisional arrest has not yet been done. Only a criminal lawyer experienced in Polish criminal proceedings is capable of creating a complaint with the necessary arguments to convince the appeals court to lift the arrest warrant against the accused within the legal period of 7 days.

Other tasks of the criminal lawyer during the pre-trial detention in Poland

The defense attorney has still further important tasks to do during the period of detention: on the one hand he has to check the conditions of detention. In situations where they do not meet legal requirements, he will then turn on behalf of accused persons with a claim or appropriate amendments to the administration of the correctional facility, to remedy the situation. On the other hand, he has to obtain permission for the visit of a close family member. These will be processed on the basis of the provisions of the Polish penal law on the basis of a corresponding application and may be rejected if there is a danger that the visit would be used to impede the criminal proceedings. In this situation the defense attorney will appeal court, to allow the visit with the detainees still close relatives.

In this context it is important to note that in the event of difficulties with obtaining the permission for a visit to the prison, there is a possibility to obtain a permit for a maximum 15-minute conversation with the detainee ion the occasion of a scheduled court hearing.

Length of pre-trial detention and prison examination

Pre-trial detention is ordered by the judge in Poland usually for a period of 3 months, where the beginning of this period is the date of the provisional arrest. If due to the existence of special circumstances in the respective criminal case the investigation cannot be completed within three months, the judge basing on a request of the public prosecutor’s Office has the possibility to extend the pre-trial detention for further 9 months to 12 months in total. Please note, that the duration of pre-trial detention up to the termination of the I. instance proceedings cannot exceed basically a period of 2 years.

In Poland, the responsible for reviewing the arranged security measures, as well as the measure of pre-trial detention is the same body that leads the proceedings at the moment of the application request. This means that during the investigation it is the public prosecutor who decides on the request for waiver of the pre-trial detention, however, after submission of the bill of indictment to the competent court, the decision is up to the judge.

The waiver request of pre-trial detention or on change of pre-trial detention to another measure securing proper conduction of criminal proceedings is possible at any time. To note is that against the negative decision of the public prosecutor or the court, a complaint is only admissible if the renewed request for detention was submitted after a period of at least 3 months from the date of resolution.

Der Beitrag Pre-trial detention in Poland erschien zuerst auf Braun Paschke Narloch Law Firm - legal and tax advice on Polish law.

Unlike Germany, Poland has a criminal law for corporations existing already for over 13 years, basing on which in the event of the appropriate prerequisites provides the possibility to impose a penalty on the company as an organizational unit.

The concept of an undertaking in the Polish criminal law for companies

The term undertaking includes legal persons (limited liability company and joint-stock company), as well as companies that although they are not legal persons, but due to special legal regulations have the capacity in their own name to have certain rights and obligations (individual trading companies such as general partnership, professional partnership, limited partnership). This also applies to capital companies in creation and in accordance with the wording of the law also foreign organizational units (e.g. branches of foreign companies in Poland).

The prerequisites for the liability of the company

First requirement: final conviction of a natural person

The prerequisite for the criminal responsibility of the company is the criminal responsibility of a natural person (ancillary nature of corporate liability). This means that first of all, a person who is entitled to represent the company, to make decisions on behalf of the company or to implement internal audits has been finally convicted of committing a criminal offense, which is listed in the discussed Act.
This applies in addition to the managing directors of a limited liability company according to Polish law and members of the board of directors of a joint-stock company according to Polish law, but also members of other organs such as the members of the Supervisory Board or the Audit Commission. However, considered are also people, who with the consent or knowledge of the members of various company bodies are working for the company (authorized representatives).

Crimes that can result in criminal liability of the company are in particular the following criminal offences committed by one of the above-mentioned persons:

• Infidelity (art. 296 StGB of the Polish Penal Code),
• Credit fraud (art. 297 StGB of the Polish Penal Code),
• Insurance fraud (art. 298 StGB of the Polish Penal Code),
• Money-laundering (art. 299 StGB of the Polish Penal Code),
• Bribery and corruption in business transactions (art. 296 StGB of the Polish Penal Code),
• Bribery of judicial officers (art. 229 StGB of the Polish Penal Code),
• Use of trade secrets (art. 23 of the Polish law on the prevention of unfair competition),
• Tax-criminal acts.

Second prerequisite: provision of a pecuniary benefit

It is important in this context that the offence committed by the persons either actually gave a tangible or intangible advantage to the company or it was at least possible to introduce such an advantage to the company. The term “material advantage” (pecuniary advantage) includes any aid for the company that leads to increases on the assets side or to a reduction on the liabilities side of the balance sheet. The pecuniary advantage has generally an economic value that is expressed in money. This is the difference to personal benefit, which serves the satisfaction of individual needs.

Third prerequisite: Criminal responsibility of the company

Another important condition for the criminal responsibility of a company is the accountability of the fault of one of the persons who are working for the company and in this respect have committed a criminal offense for which they have been sentenced. The law says hereto that the commission of the offense is a consequence of the absence of necessary care in selection (culpa in eligendo), or supervision of a person (culpa in custodiendo) who became active for the company with the consent or with the knowledge of members of company bodies.

On the other hand, according to the wording of the law the company is subject to criminal responsibility if the offense was the result of a faulty internal organization has not prevented the commission of a criminal offense by members of the company bodies (in particular by executives and board members) hence under the circumstances of necessary due diligence by members of other company bodies this offense could have been prevented.

Penal consequences

In the presence of the above-mentioned conditions, the Court can impose a fine in the amount of 1,000.00 PLN up to 5,000,000.00 PLN, whereby this imposed fine cannot exceed the amount of 3% of the revenue of the financial year in which the offense leading to condemnation of the company was committed. In addition, the Court can declare the expiry of the pecuniary benefits that has been obtained at least indirectly from the committed crime. There is also the possibility to impose a ban on the company for a period of one year up to 5 years covering the participation in public tenders or also the advertisement of own products or services.

Practical importance of the Polish criminal law for companies

Despite significant progress in the fight against corruption, Poland is in recent years very committed to preventing this type of crime. This is done on the one hand by means of information campaigns of different nature, but on the other hand, above all, by determined actions of public authorities responsible for the fight against corruption, such as the Central Office for the Fight against Corruption (CBA). It is, therefore, to be expected that in the future not only legally prosecuted people will be punished, but increasingly also the companies for which the “perpetrators in suits“ have been acting.

Interesting in this context is the second option of fault allocation as a prerequisite for criminal responsibility of the company. This can be not prosecuted in case of commission of crimes by managing directors and board members, if there is an internal organization within the company preventing the commission of offences, in particular corruption cases. Here is one of the starting points of the Polish law for the need of introduction of the so-called compliance systems.

The concept of compliance means nothing other than compliance with certain specified internal company policies – in particular, rules about how the employees of the company shall behave so that no crimes will be committed. A compliance system existing only on paper is not enough. Should the compliance management existing within the company be used in a criminal proceeding against the company as an argument in favor of the company, a functioning compliance system lived by the employees is also necessary.

Der Beitrag Criminal law for corporations in Poland erschien zuerst auf Braun Paschke Narloch Law Firm - legal and tax advice on Polish law.

Interrogation of the accused

In Poland, the accused is obliged to present himself at the police station in response to the summons by the police. Once there, the accused should only refer to personal data and restrain from statements on the matter itself. There is a risk for the accused that before having contacted a defense lawyer, he could divulge information which in the further course of the investigation and foremost before the court – could be used against him.

The accused should therefore give neither statement nor admit charges brought against him. The right to remain silent resulting from the Polish Criminal Procedure Code about which the accused must be properly informed, cannot be used against him. It is also important that the accused has the right to refuse any statement without indication of reasons. This right applies throughout the course of the criminal proceedings, from the beginning of the preliminary procedure up to the closing of judicial procedures (Art. 175 of the Polish Criminal Procedure Code).

Interrogation of witnesses in preliminary proceedings

Anyone in Poland having received summons to the police or the public prosecutor to testify as a witness, has to comply with this obligation. If the person summoned as a witness does not present himself for the hearing in terms as announced in the summons and fails to present a sufficient justification, risks a fine in the amount of up to 3,000. – PLN (Art. 285 § 1 of the Polish Criminal Procedure Code). In case of an illness, the corresponding certificate of a court doctor must be provided (Art. 117 § 2a of the Polish Criminal Procedure Code).

Right to refuse to provide information (Miranda warning) and right to refuse to give evidence

The next of kin of the accused have the right to refuse to give evidence (Art. 182 § 1 of the Polish Criminal Procedure Code). This right can in particular be used by the spouse, parents and grandparents, as well as children and grandchildren, but also brothers and sisters of the accused (Art. 115 § 11 of the Polish Penal Code).

In contrast, each witness who is not part of the group of persons referred to above, has the right to refuse to answer a question if his answer would expose him or one of his relatives to the danger of being prosecuted for criminal offense or tax offense – Miranda warning (Art. 183 § 1 of the Polish Criminal Procedure Code). It is important to note that in Poland the right to refuse to provide information does not cover situations, in which a witness would expose himself or a next of kin to the risk of being prosecuted for an administrative offense. In such situation, the witness is obliged to answer the questions.

The course of the hearing of witnesses

At the beginning of the hearing, information on the person is requested and the witness is instructed about the fact that a false statement might have criminal consequences. Thereafter, the witnesses are given the possibility to freely relate to the subject matter of his hearing (Art. 171 § 1 of the Polish Criminal Procedure Code). Any questions will then be made as to explain ambiguities or verify the credibility of the witness. It is important that the witness is not being asked the same questions several times in hope that he will eventually give other answers making his statement implausible.

In addition, the interrogating shall ask questions in such a way that the answers are not already suggested in the question itself. Inadmissible is also the attempt to influence the witness by psychological pressure (Art. 171 § 4 and 5 of the Polish Criminal Procedure Code). This might sound very good in theory, but in practice poses very often problems with the evaluation of the questions in individual cases.

It is therefore recommended that also when serving as witness, an experienced defense lawyer should be consulted. However, please note that the Public Prosecutor in course of the preliminary proceedings has the possibility to deny witness the assistance the personal presence during the questioning of witnesses to deny witness assistance and personal presence during the witness interrogation, if in opinion of the Public Prosecutor this is not required for the safeguarding of interests of the witness. But this also means that in course of a police hearing of a witness, police officers have no right to exclude witness assistance from the interrogation (Art. 87 § 3 of the Polish Criminal Procedure Code).

Der Beitrag Interrogation in preliminary proceedings in Poland erschien zuerst auf Braun Paschke Narloch Law Firm - legal and tax advice on Polish law.

Preliminary proceedings will be conducted to determine whether a criminal offense of the Polish Penal Law has been realized. If this is the case, the Office of the public prosecutor and the police acting on his behalf have to secure the existing evidence in the respective matter for the subsequent court proceedings. One of the applied measures is carrying out a search of the premises, where the presence of objects is suspected that could serve as factual evidence in the current investigation.

Usually, the investigation authorities do not announce the search. This leads to a situation where the person affected is being surprised by this measure and do not know how to behave towards the police officers. If the prosecutor knocks on the door of the company, the subsequent examination of company’s own premises might quickly disturb unpleasantly the day-to-day business or even to cause a standstill.

Proceeding of a company investigation according to Polish Criminal Procedural Law

Out of ignorance and due to psychological stress in such situation, the affected persons almost always make mistakes. That is why we want to provide you with the following information a first overview of corresponding rights and obligations that entails a search of business rooms, but also private homes in Poland.

Legal basis for the search

A corresponding search warrant must be presented before the search to the person, whose premises shall be searched. Such search warrant, which must include the substantive area of the search, can be issued either by the court or the prosecutor (Art. 220 § 2 of the Polish Criminal Procedure Code). If there is danger in delay, which means in a situation in which due to the urgency a search warrant cannot be acquired neither from the Court nor the Public Prosecutor, it is sufficient that the investigating officer has a search warrant issued by the head of the corresponding police unit or shows only his service identification (Art. 220 § 3 of the Polish Criminal Procedure Code).

If the police or public prosecutor enters your company’s seat with the aim to search the premises, you should always call a defense lawyer. The lawyer then has the possibility to speak with the investigators and to verify whether the actual search corresponds with the contents of the search warrant or search order. However, a postponing of search activities is usually not achievable. In cases of searches without a search warrant or order it is also important to note the names of the acting persons. Regardless of whether a lawyer is immediately involved, when business premises are being searched, the company’s management must be informed immediately to appoint a contact person for the communication with the investigating officer.

Protocol on the search procedure

In case of searches, it is fundamental to establish a protocol. If the search procedure is carried out without corresponding order, the affected person has the right to claim confirmation of the conducted search from a judge or Public Prosecutor. If this right is being waived, such confirmation will not be delivered with the consequence that a complaint against the search order is then no longer permitted (Art. 220 § 3 of the Polish Criminal Procedure Code). The affected person shall also be instructed that in practice, due to stress related with such situation, a corresponding request is often not being included in the protocol.

Release of evidence

Files, documents or even computer hard drives seized during the search by the investigation officers must be returned voluntary. This means that the affected person, as well as the employees at the company cannot put any resistance and also must not try otherwise to destroy business documents at the last moment. If the persons obligated to hand out the documents fail to comply by this request, they could face a fine in the amount of up to 3,000, – PLN or in exceptional cases also arrest up to 30 days (Art. 287 of the Polish Criminal Procedure Code). In addition, it can be assumed that the search will be accomplished more quickly when handing over the evidences to the investigating officer.

Contact with a defense lawyers after the examination

If during the search no defense lawyer has been involved, this must be made up quickly upon completion of the investigation measure. The defense lawyer with experience in Polish Criminal Law will then work together with you to analyze the situation and to discuss your next steps. Primarily, there is the question whether a complaint against the search warrant shall be filled or not.

Der Beitrag Search of premises erschien zuerst auf Braun Paschke Narloch Law Firm - legal and tax advice on Polish law.

Most people do not want to have very close contact with criminal law unless they are professionally linked to this area of law being a lawyer, attorney or judge. However, it is sometimes not so difficult to end up in a situation where one has to deal with criminal allegations.

Your risks as Managing Director

Overview of main offenses

If you are employed in a ltd. of Polish law in function of CEO or member of the executive board of a joint-stock company, you’ll find the following statements interesting for sure. The Polish economic criminal law contains a number of provisions which should be followed to avoid conflicts with the polish criminal law. This includes in addition to the (classical) offenses of corruption, embezzlement or fraud, in particular provisions in the field of criminal acts against the commercial trade (prevention or reduction of creditor satisfaction – art. 300 of the Polish Penal Code, fraudulent trading (bankruptcy) – Art. 301 of the Polish Penal Code and fraudulent preference of creditors – art. 302 of the Polish Penal Code), or the insolvency law and here, in particular, the criminal act of delaying insolvency proceedings – art. 586 of The Commercial Companies Code.

Furthermore, other law acts also include criminal law provisions, with which you as a manager of a Polish ltd. or as a board member of a Polish company should be familiar with. This includes in particular the provisions of the tax criminal code and the Accounting Law (e.g. as the absence of notification of the end-of-year reports to the register court – art. 79 of the Accounting Law) as well as the criminal provisions of the Polish Competition Law and the corresponding provisions in the laws for the protection of intellectual property.

Investigation in the Polish criminal procedure

Preliminary proceedings will be conducted to determine whether a criminal offense of the Polish Penal Law has been realized. If this is the case, the Office of the public prosecutor and the police acting on his behalf have to secure the existing evidence in the respective matter for the subsequent court proceedings. One of the applied measures is to carry out a search of the premises, where the presence of objects is suspected that could serve as factual evidence in the current investigation.

Learn more about the search of premises

Another possibility for the collection of evidence is the interrogation of the accused, as well as a witness. While the accused is not obliged to make any statements, the witness has generally the right to refuse to provide information only in cases as envisaged in the Polish Criminal Procedure Code.

Learn more about interrogation in preliminary proceedings

Your risks as a private person

Also a private person can encounter the Polish Criminal Law more easily than expected. A traffic accident with personal injury in Poland is enough for the Polish State Prosecutor to step in. The presented above for the management of Polish subsidiaries applies to private persons in a corresponding manner.

In criminal matters, the establishment of a quick contact with a lawyer (defence lawyer), who specializes in the Polish Criminal Law and Criminal Proceedings is extremely important. Remember in this context that in case of emergency, it is your freedom and your assets that are at stake and of course also the interests and needs of your relatives.

Our consultancy services in the field of the Polish Criminal Law and Criminal Proceedings Code

Our advocates will very gladly assist you with the following consulting services:

• General advice in Polish Criminal Law and Administrative Offence Law,
• Consulting within the field of Polish Commercial Criminal Law as well as the creation of compliance systems in Polish subsidiaries,
• Representation and defence of private individuals in preliminary proceedings before the Polish prosecution authorities, as well as in the main proceedings before the Court,
• Representation and defence of CEO’s and members of the Management Board in preliminary proceedings before the Polish prosecution authorities, as well as in the main proceedings before the Court,
• Advice and representation of your interests during inspections and in obligations made by the National Labor Inspection, as well as in subsequent court proceedings,
• Examination of criminal matters and representation in connection with the filing of criminal complaints before Polish prosecution authorities,
• Advice and representation of your interests in the context of a European arrest warrant,
• Establishment of legal opinions to selected problems in Polish Criminal Law,
• Advice and support of the accused and his family during the custody in Poland (in particular for persons having Polish citizenship).

Der Beitrag Criminal law/Criminal defence erschien zuerst auf Braun Paschke Narloch Law Firm - legal and tax advice on Polish law.

An effective compliance system should prevent infringements of legislation in force in the company. However, its task is also to uncover irregularities when it has come to such and if necessary, to report violations of the law to competent State bodies. These two features of compliance management systems cause that especially antitrust regulations cannot be disregarded in the preparation and implementation of internal compliance policies in Poland.

Important cornerstones of Polish antitrust law

The Polish competition law prohibits essentially two types of behaviors which restrict free competition between companies: conclusion of competition agreements and abuse of dominant market positions. In addition, mergers of companies from a defined merger size are subject to the supervision of the Polish competition authority.

Impair competition agreements between companies

Agreements between companies which purpose is the elimination, limitation or an adverse effect on competitors in other ways on the relevant market are not allowed.

Prohibited agreements are especially those, which

• set prices and other purchasing or sales conditions directly or indirectly (such as the appointment of sugar producers to offer their products no longer under a precisely designated minimum price on the market – price cartels),
• limit or control the production or the approach, as well as technical progress,
• divide the sales or purchasing market (such as the allocation of customers or territories, which are supplied only from specific companies participating in the consultation),
• use discriminatory or diverging terms and conditions in comparable treaties with third parties, creating for these people different conditions of competition,
• make the conclusion of contracts conditional on the acceptance or the provision of another service, which has no factual or habitual relationship with the subject of the contract,
• restrict the access to the market or replace companies not covered by the agreement from the market,or,
• set conditions for the submission of bids between companies participating in tenders, or between these companies and the organizer of the tender, in particular with regard to works to be performed or the pricing.

Impair competition agreements can be on one hand concluded between the companies which actually should be at the same economic level in a real competitive relationship (so-called horizontal agreements, such as between producers upon a certain minimum price for cement products in a given region), but also between companies that operate at different levels of trade (so-called vertical agreements, e.g. between a producer and its distributors).

For example, the Polish subsidiary of a foreign producer operates as an official importer of the corresponding products and cooperates with different independent distributors in Poland not belonging to the group. The products are provided by the Polish subsidiary basing on uniform contracts to these distribution companies for resale. These contracts contain a price list, where the rates to be used by the subsidiaries to the end customer are called „recommended prices“, which should not fall below. In addition, the sales contracts contain provisions specifying certain consequences, if the distributors do not follow the „recommended prices“ and fall short of these.

These arrangements are regarded as prohibited price agreements within the meaning of the Polish competition law, because the free pricing of the Distributor is limited. He must be an independent entrepreneur, able to set the prices for the offered products and services. It is not relevant how the companies participating in this agreement refer to the contractual provisions. Important here is the fact that it has come to a collusive price agreement between the Polish subsidiary and distributors in Poland. Thus, the end customer has no possibility to acquire the products produced and sold in Poland by the foreign group to a different (lower) price than the „recommended“. For the imposition of a delicate fine by the Polish competition authority, it is not necessary that the companies involved have actually achieved their objective of the restriction of competition. The existence of this agreement is sufficient so far.

The Polish competition law exempts the price-fixing agreements and agreements on purchasing or sales conditions from the ban either concluded between competitors, whose common shares of the relevant market does not exceed 5% or companies, which are not in competition and whose own share in the relevant market does not exceed 10%.

In addition, the prohibition of the appointment of prices and other purchasing or sales conditions between companies does not apply, if:

• this agreement contributes to improving the production, goods distribution, or technical or economic progress, and
• this appointment guarantees the purchasers or users a corresponding share of the benefits, arising from this agreement, and
• this agreement does not impose any restrictions on the participating companies, which are not necessary for the attainment of the purpose and
• these agreements do not create opportunities for participating companies to prevent competition on the relevant market in terms of a significant part of certain goods.

It is important in this context that in case of any existing doubts of the antitrust authority, the company must prove that the above conditions for exemption from the prohibition are given.

Abuse of a dominant position

Measures by companies, which constitute an abuse of a dominant position by one or more companies, are also not allowed. Such abuse exists in particular if a dominant company:

• directly or indirectly impose another company unfavorable rates in particular excessively high or excessively low prices, as well as long payment terms or other unfavorable purchasing or terms of sale,
• limits production, the approach or technical progress, to the detriment of competitors or of consumers,
• uses discriminatory or diverging terms and conditions in comparable treaties with third parties that creating different conditions of competition,
• make the conclusion of contracts conditional on the acceptance or the provision of another service, which has no factual or habitual relationship with the subject of the contract,
• counteracts the creation of conditions that are essential for the emergence of competition or the development of competition,
• impose discriminatory contract conditions on another company, bringing not justified benefits.

The Polish competition law thus prohibits not the fact of holding a dominant position, but only the use of this position for purposes that are not allowed by law.

Responsibilities of a manager in case of violation of the Polish competition law

The amendment of the Polish competition law entering in force January 18th, 2015 one introduced the possibility to make also members of the Executive Board of a Polish subsidiary company accountable for certain violations of the antitrust law. And so a Managing Director may have imposed especially with a delicate fine (up to 2.000.000,-PLN), if a violation of a prohibited price agreements or non-permitted sharing of markets by a subsidiary company are determined by Polish antitrust authorities during his time of office.

The liability of the Director requires that through its intentional act or omission it came to a violation of finally listed antitrust prohibitions by the company. Intentional action shall be understood among other things as the signing of an anti-competitive agreement by a Managing Director. An intentional omission will occur in this context, when a member of the Board of management has knowledge that another managing director wants to sign a restrictive agreement and does not prevent this.

Importance of the presence of a compliance system for antitrust violations

The President of the Polish Office for the competition and consumer protection has pointed out in an interview published on November 5th, 2015 (https://uokik.gov.pl/komentarze_wyjasnienia_i_stanowiska.php?news_id=12005) that a compliance system may not exist only on paper, to take account of the Polish competition law violations. A compliance management system is rather only effective if it uncovers irregularities and the entrepreneur turns after that to the Cartel office. He then has the opportunity to participate in the so-called leniency program, which under certain conditions foresees the departure from the imposition of a fine by Polish antitrust authorities. But even if the Cartel Office detects antitrust violations before the entrepreneur submits a corresponding notice, the entrepreneurs still have the possibility to influence positively the extent of the financial penalty, through sustainable improvements to an existing compliance system and a close cooperation with the antitrust authority.

The position shown in this interview of the President of the Polish Office for the competition and consumer protection very clearly shows how important it is to introduce an effective compliance management system in the company.

Gladly we advise you on the development of a compliance system tailored to the needs of your subsidiary company in Poland.

Der Beitrag Compliance and the Polish antitrust law erschien zuerst auf Braun Paschke Narloch Law Firm - legal and tax advice on Polish law.

Overview

Foreigners from a Member State of the European Union may perform business activities in Poland on the same rules as Polish citizens and entrepreneurs. By contrast foreigners of countries, which do not belong to the European Union, also have the right to undertake business activities in Poland but with certain restrictions.

The following summary will give you a first indication, which requirements the Polish law imposes on foreign entrepreneurs, who intend to conduct business activities in Poland. Please note, that your intention to undertake a business in Poland must be real. That means you should have ideas and concrete concepts for the development of your business on the Polish market, before you establish a company in Poland. If your aim is to obtain a visa and later a temporary residence permit and a work permit in Poland, you will have to prove your intention to conduct business activities for the first time when you apply for a visa and later during the administrative procedure for obtaining the residence and work permits. That’s why it’s very important for you to have a transparent and understandable concept, which will convince the Polish consul and the Polish authorities, that you will really develop a business in Poland.

A foreigner of a non EU country has the choice only between a limited partnership, limited joint-stock partnership, limited liability company (ltd.) or a joint-stock company for doing business in Poland (unless intergovernmental or international agreements provide otherwise). If a foreign person of a non EU country only wants to establish one of the above mentioned capital companies in Poland, as a shareholder he won’t need neither a residence permit nor a work permit. But if he intends to conduct business activities personally in Poland, for example as a member of the management board of a ltd. in Poland, he ‘ll have to apply for a temporary residence permit and a work permit.

Establishment of a company in Poland

The most popular type of business set-up in Poland, chosen by foreigners from a country outside the European Union, is the limited liability company. One of the reasons for this is the fact, that a shareholder of such a company won’t be liable for losses incurred by the company itself.

Regarding the establishment of a limited liability company under the Polish law a non EU foreigner has the choice: either a company formation from the beginning or a takeover of an existing ltd. registered by our law firm (without any business activities, but with tax identification number and VAT registration).

Please note, that there is also another possibility to set up a company: as a non EU foreigner you can also register a limited liability company using the online system of the Polish Ministry of Justice (the so called S24 system). If you intend to register a company using the online system, you ‘ll have a ready-made ltd. within a period of just a few days. This is the fastest and cheapest way to get your own company (ltd.) (for instance the certification of the articles of association at the notary is not necessary). But there are restrictions, e. g. regarding the content of the company deeds. The online system provides prepared samples of a company deed, in particular with the following articles: business name, address, business activities of the company, share capital, duration, management board, shareholders meeting, financial year. There is a restriction concerning the type of coverage of the share capital: shares of an online ltd. may be covered only in cash. Furthermore, if you want to include additional provisions in the company deed than mentioned above (e. g. special agreements between shareholders concerning the distribution of company profits), you won’t be able to register your company via the internet. In this situation you have to certify the articles of association at the notary in the form of a notarial deed.

The Polish Commercial Companies Code provides, that a limited liability company (ltd.) may be established by one or by more persons (individuals or legal entities). Please note the following: if you decide to take over all shares (100%), you will have to pay social security contributions in Poland. If there are at least two shareholders, they won’t be obligated to pay social security contributions, unless they perform work for the benefit of the company on the basis of a civil law or labour law contract.

Furthermore, there are restrictions, when a sole shareholder of a ltd. is also the only member of the management board. In this situation a notarial certification is required for all legal acts (e. g. the contract, on the basis of which he performs work) between the sole shareholder and the company which he represents.

Visas and permits

Visas

After establishing the company you can apply for a visa in the consular section of the Polish embassy in your country.

Please note, that there is a special procedure to submit an application. In many countries outside Europe it’s necessary to register the application and to make an appointment with the consul or a consular assistant at a special website of the Polish Ministry for foreign affairs: https://secure.e-konsulat.gov.pl After registration and after reserving the appointment you have to appear in person in the embassy with the printed application and all documents proving your intention for your stay in Poland.

You can apply for a Schengen Visa or a National Polish Visa. A Schengen Visa allows a non EU foreigner to remain in the Schengen Area and especially in Poland for up to 90 days within a period of 180 days. A National Polish Visa allows a non EU foreigner to stay in Poland for a longer time than 90 days.

You have to attach to the printed and signed application form in particular the following documents:

• a valid identity document,
• a current photograph,
• documents concerning the purpose of the journey and the planned stay in Poland,
• documents certifying, that the applicant has sufficient financial means to cover the costs of his stay in Poland,
• a document confirming the foreigners intention to leave Poland before the expiration of the visa,
• a document concerning the possession of a health insurance or of a travel medical insurance with a minimum coverage of EURO 30.000,00.

Please note that you have to pay a visa fee, for instance for the issuance of a Schengen visa in the amount of EURO 60,00.

Please note, that the consul can request more and other documents or further information from you. It’s also possible, that the consul intends to have a conversation with you in your visa matter. Furthermore, all above mentioned documents issued in a foreign language have to be submitted in the Polish or English language.

Usually you get a response concerning your visa application within a period of two weeks. Before applying for a visa its necessary to visit the website of the Polish embassy in your country to learn more about the documents which are required in your personal case.

Temporary residence permit / work permit

The Polish law provides a general rule, on the basis of which a non EU foreigner after receiving the visa for business purposes will have to apply for a temporary residence permit and a work permit, if during his stay he intends to perform work on the territory of Poland, for instance with a labour or civil law contract, for a longer time than 90 days (3 months).

In general, the residence permit only concerns the stay of a foreigner (for instance attendance of schools and universities in Poland, the carrying out of research or scientific activities in Poland or of course, the conduction of business activities), while the work permit is necessary only in special situations, when the non EU foreigner intends to perform work on the basis of a labour or civil law contract for the benefit of an employer with seat in Poland.

Please note, that the issuance of these permits by the Polish authorities is in each case a discretionary decision. If the non EU foreigner intends to become a managing director in his own company (a member of the management board of the company he established in Poland), it will be possible to apply for the temporary residence permit and the work permit within one (the same) administrative procedure in Poland. The applicant has to submit the application in person at the competent office of the Department of Foreigners in Poland, no later than on the last day of his lawful stay in Poland.

You have to attach to the printed and signed application form in particular the following documents:

• 4 recent colour photographs,
• a valid travel document,
• documents confirming the possession of a stable and regular source of income sufficient to cover the costs of living for the foreigner (e.g. employment contract),
• documents confirming a health insurance or the coverage by the insurer of the cost of treatment in Poland,

Important note: if you intend to become a member of the management board of your own company, you will have the possibility to conclude with your company an employment contract. This contract, on the basis of which you would perform your work for the benefit of your company, will give you the legal ground for health insurance in Poland. Furthermore, with such a contract you will able to prove, that you will have a stable and regular income to cover your costs of living in Poland.

• documents confirming the fact of living in Poland, for example lease agreement, certificate (booking) from the hotel,
• Certificate of having no corporate tax arrears,
• Articles of association of the company established by the foreigner,
• Company’s balance sheet, together with the current profit and loss account,

Moreover the Polish Act on foreigners provides, that the company, established by the foreigner, has to prove

• a generation of a certain income in the fiscal year preceding the submission of an application for a temporary residence permit for the purposes of conducting business activity (not lower than 12 times of the average monthly remuneration in the voivodeship, where the foreigner’s company has its seat),

OR

• an employment of at least two Polish citizens or foreigners who are allowed to work in Poland without a work permit in the company for a period of at least 1 year preceding the submission of an application for a temporary residence permit for the purposes of conducting business activity,

OR

• that the financial situation of the company for the conduction of business activities in Poland will allow to meet the above mentioned criteria in the future,

OR

• that the business activities of the company will contribute to an increase of investment in Poland or to a transfer of modern technologies to Poland or the creation of new jobs in Poland in the future.

If the foreigner doesn’t attach all of the above mentioned documents to his application, the competent Polish authority will request these documents within a period of 7 days from receiving the request. Furthermore, all above mentioned documents issued in a foreign language have to be translated in the Polish language by a sworn translator in Poland.

Please note that you will usually get a decision within a period of two months after submitting the complete application. In general, a temporary residence permit is granted for a period necessary for the realization of the purpose of the foreigner’s stay in Poland, but no longer than 3 years.

We are at your disposal!

Our team of experienced attorneys and lawyers can advise and represent you in the following cases:

• establishment of your company (ltd.) in Poland under the Polish law,
• provision of legal advice regarding the Polish business law, in particular regarding the corporate law, labour law and social security law,
• provision of legal support in your visa matters, especially in situations, when you have to prove your business activities in Poland,
• provision of legal support in the procedure of receiving the temporary residence permit and the work permit in Poland,
• representation in appeal procedures.

Please contact us for a first evaluation of your business plans in Poland!

Der Beitrag Conducting business activities in Poland erschien zuerst auf Braun Paschke Narloch Law Firm - legal and tax advice on Polish law.

Our law firm is specialized in Polish business law as well as in international law and has been offering for more than 12 years a range of high quality legal services to our clients.

Please find on our website for our German speaking Clients selected references of our Clients, who have been adviced by us in the German and English language. These are well-known internationally active companies, who have been giving us the most important thing for an effective cooperation: their confidence.

Our References

Der Beitrag References erschien zuerst auf Braun Paschke Narloch Law Firm - legal and tax advice on Polish law.