AmCham Poland Advocacy Bulletin 1/2024

AmCham Poland is continually active in the legislative process and legal environment in Poland. This AmCham Poland Advocacy Bulletin provides an update of our advocacy work in a variety of areas on behalf of our member companies. 

IN THIS ISSUE: 

1. Advocacy Priorities to the New Government
2. Preliminary Principles for Implementing the DSA
3. Directive Proposal on Improving Working Conditions via Online Platforms
4. Changes in Standard Audit File
5. Passenger Name Record Processing
6. Priorities of the Committee on Innovative Medical Devices
7. Employment of Foreigners in Poland
8. Family Foundation

1. Advocacy Priorities to the New Government

AmCham organized a meeting of expert group on public policy to establish the most crucial tasks for the new government, addressed by foreign investors operating in Poland. The focus was on identifying business issues that should be addressed by the new government and the parliament in the upcoming term. AmCham’s primary goal is to build relationships with politicians from the Coalition KO-PSL-PL2050-NL and emphasize the significance of American investments as a key element of the Polish economy.

For this purpose, AmCham created a working document outlining priorities that highlights numerous key areas for AmCham member companies, accompanied by specific postulates. The primary issues center around:

• The significance of American investments for the economy and society: Continuing to showcase the multidimensional impact of American investors on the Polish economy and society. Thanks to American investments, Poland has become a growing digital leader in the entire CEE region, with enormous development potential.
• Improvement of the business and regulatory environment: The introduction of new regulations should be based on utilizing public consultations and pre-consultations as standard practices, except in the most urgent situations. Proposed regulations should consider expert analyses and market and end-user opinions. The law should be predictable, stable, and consistent, avoiding excessive changes. Proposed changes should be announced well in advance, enabling all stakeholders to prepare and make decisions in the context of future legal directions and changes. Created regulations should be adequate to address the issues at hand, avoiding unnecessary burdens on recipients. Legal stability is achieved through legislative dialogue with the market, allowing the identification of potential problems during the legislation creation stage, thus avoiding frequent amendments.

In addition, specific sectoral needs have been prepared, addressing postulates in areas such as: Digitization, Healthcare, Finance, Defense, Energy, Labor Market and Education, and more.

The document is non-binding and closed, while AmCham member companies can continue to indicate its priorities.

2. Preliminary Principles for Implementing the DSA

The European Union’s Digital Services Act (DSA) focuses on creating safer online environment for users and digital businesses, as well as safeguarding fundamental rights in the digital space. It introduces new regulations, including:

• Combating illegal content on the internet, including illegal goods, services, and information.
• Countering social threats on the internet.
• Ensuring the identifiability of entrepreneurs on online trading platforms.
• Implementing measures for transparency concerning internet platforms.
• Strengthening supervision.

The Council adopted the Digital Services Act on October 4, 2022. The new regulations will come into effect on February 17, 2024.

Due to the need to implement institutions such as the digital services coordinator in the Polish legal system, the Ministry of Digitalization conducted consultations regarding the preliminary principles for future implementing legislation aligning with the Regulation. AmCham has addressed several key issues crucial from the perspective of its member companies.

Among these issues are, for instance, the avoidance of imposing additional burdens on entrepreneurs beyond the scope of the DSA; the designation of a single competent authority in the person of the President of the Office of Electronic Communications; and matters related to proceedings for the breach of obligations arising from the DSA.

3. Directive Proposal on Improving Working Conditions via Online Platforms

AmCham has presented its position regarding the ongoing work at the European Union level on the directive proposal aimed at improving working conditions through online platforms. This position has been sent to Ms. Agnieszka Dziemianowicz-Bąk, Minister of Family, Labour, and Social Policy, and Mr. Krzysztof Hetman, Minister of Development and Technology.

The proposed directive raises significant concerns among our member companies in the passenger transport industry, and in light of this, we presented our position paper. The preliminary agreement reached by the Council and Parliament on December 13th has sparked reservations on the part of employers. It leads to substantial legal uncertainty and is likely to result in the automatic reclassification of self-employed individuals engaged in actual business activities as employees. This change may have repercussions not only for the platform sector but for the entire job market in Poland.

The project raises fundamental concerns in the following areas:

• Presumption of the existence of an employment. Individuals collaborating with a digital platform will be legally recognized as employees if their relationship meets at least two of the five indicators specified in the directive.
• Far-reaching interference in the principles governing the freedom of economic activity by member states.
• Definition of an internet platform (scope of application of the new directive).
• Lack of a thorough assessment of consequences.

4. Changes in Standard Audit File

The Ministry of Finance conducted public consultations on the proposed solutions resulting from the draft regulation of the Minister of Finance, published on November 20, 2023. This regulation concerns additional data that must be supplemented in the accounting records subject to submission under the Corporate Income Tax Act.

In the first year of the regulation’s validity, entities obliged to keep records using computer programs and submit them to the competent head of the tax office after the end of the tax year will include: tax capital groups (PGK) and CIT taxpayers whose revenue exceeded 50 million euros in the previous tax year.

AmCham submitted a letter with comments from member companies to the aforementioned consultations, primarily advocating for the abandonment of the proposed changes in their current form or, at the very least, postponing the effective date of the regulation by a minimum of one year, i.e., to January 1, 2026.

5. Passenger Name Record Processing

AmCham continues its commitment to addressing the penalties imposed on airlines in connection with the implementation of the EU PNR Directive into the Polish legal system. In collaboration with the International Group of Chambers of Commerce (IGCC), the International Air Transport Association (IATA), and the Council of Representatives of Airlines in Poland (BARIP), AmCham has issued a statement to the Minister of Internal Affairs and Administration, Marcin Kierwiński, regarding the challenges faced by the aviation sector due to the strict implementation of the PNR Directive in the Polish legal system.

In response to the EU PNR Directive, the Polish legislator enacted the PNR Act in May 2018, requiring air carriers to provide passenger data to the National Passenger Information Unit. However, due to organizational challenges, some carriers struggled to meet this new obligation.

The Commander of the Border Guard imposed fines of up to PLN 40,000 per flight on air carriers, generating significant financial burdens in the billions. Unlike other EU countries that implemented the PNR Directive, Poland’s situation poses a threat to the viability of small, medium-sized, and large air carriers already adversely affected by the Covid-19 pandemic. AmCham emphasizes the need for a fair and proportionate approach to the enforcement of the PNR Directive in Poland, aligning with the practices of other EU nations.

The most pressing challenge, however, is time. The amendment to the PNR Act, to effectively alleviate the uncertainty surrounding the imposed penalties for both airlines and the Border Guard, should come into effect by February 5, 2024. In this challenging situation, as representatives of the entire aviation industry, we declare our complete openness to a constructive dialogue leading to urgent and favorable solutions. Nevertheless, if during the amendment process it becomes apparent that changing problematic provisions is not feasible within the specified timeframe, a bridging solution could be the extension of the current suspension of certain provisions of the PNR Act. This would allow for further work on a comprehensive long-term solution.

6. Priorities of the Committee on Innovative Medical Devices

The Committee on Innovative Medical Devices at AmCham has developed a document outlining priorities to enhance access to medical technologies for patients. The medical sector looks optimistically at the role the Polish Sejm in the new parliamentary term can play in realizing these priorities over the next four years for the transformation of healthcare. Medical technologies are present at every stage of patient’s journey, enabling prevention, early diagnosis, procedures, and a healthier life. They have a positive impact on the healthcare budget by preventing complications and increasing efficiency, supporting social and economic development. Modern medical products rely on advanced technologies, and Poland has the potential to become a leader in utilizing the latest medical solutions for patients and creating a healthcare system that is:

• Patient-Centric
• Sustainable
• Innovative
• Resilient and Flexible

Our ambition is to contribute to shaping solutions for the benefit of patients. Using this document as a guide, the Committee intends to collaborate in key areas related to policies and regulations with the public sector, focusing on the recommended priorities that need simplification and implementation to ensure new healthcare standards.

7. Employment of Foreigners in Poland

Since economic growth in Poland demands new employees, and most companies are affected by a lack of candidates and face difficulties when hiring non-EU citizens, AmCham continues its initiative aimed at simplifying the process of obtaining work permits.

Over the past year, AmCham, in collaboration with the Association of Business Service Leaders (ABSL), has submitted a letter to the Voivode of Lower Silesia addressing challenges in the procedures for granting work permits to non-EU citizens, where candidates face extended wait times.

In light of this initiative, AmCham has consulted with our member companies in Lower Silesia to explore potential solutions for streamlining the process. The feedback gathered will be utilized in formulating a new position paper, presenting constructive proposals to the Lower Silesian Voivode’s Office.

AmCham will provide updates on this ongoing initiative. Should you have any questions or require further clarification, please do not hesitate to reach out to AmCham legal team. 

8. Family Foundation

AmCham addresses the topic of the long-awaited institution of the Polish family foundation, introduced since May 2023. The family foundation offers a unique opportunity for individuals and families to secure their financial legacy and streamline the transition of wealth across generations.

We would like to introduce this institution to AmCham members and invite you to a meeting dedicated to the Polish family foundation, which is scheduled for Thursday, February 8th, at 3:00 p.m., in the AmCham Boardroom, with the possibility of joining online.

During this meeting, esteemed experts in the field will present the most critical legal and tax considerations associated with the emerging legal form of family foundations in Poland. The discussions will cover a spectrum of topics, including the main benefits of family foundations, tax issues related to family foundations and their establishment, legal nuances, and a comparative analysis with insights into the transactions and tax planning with family foundation in Austria/Germany, where the practice has been ingrained for a substantial period.

Our distinguished panel of speakers includes:

• Ms. Małgorzata Brauckmann-Sajkiewicz, Counsel (Tax/Corporate/Private Clients) at CMS Cameron McKenna Nabarro Olswang Pośniak i Bejm
• Mr. Łukasz Koc, Tax Manager at ASB Poland
• Mr. Marek Matysiak, Senior Associate at DeBenedetti Majewski Szcześniak Law Firm

The discussion will be moderated by Mr. David DeBenedetti, adding depth and perspective to the exploration of this subject.

If you want to participate in the meeting, please contact [email protected].