AmCham Poland Advocacy Bulletin November 2022
AmCham Poland is continually active in the legislative process and legal environment in Poland. We provide our members with a platform to discuss and debate the regulatory environment in Poland and take an active part in the legislative process.
Our advocacy work includes:
- Cooperation with the public sector and other business organizations,
- Monitoring and analysis of Polish and EU legislation,
- Preparation of position papers, policy statements, and legal opinions,
- Collaboration with member companies and government as participation in the law-making process.
Below you will find a summary of AmCham's activities in recent months in the advocacy field.
Please contact the AmCham Legal Team if you would like more information on the activities carried out or require AmCham's support in matters important from your company's point of view.
Marta Pawlak - Legal & Public Policy Director - [email protected]
Karol Witaszek - Legal & Public Policy Coordinator - [email protected]
1. Windfall Tax
In response to rising energy costs and high inflation levels affecting the economy, industrial production, and individuals, the government has prepared a number of legal solutions to freeze energy prices at certain levels. Financing was to be ensured by the introduction of a windfall tax.
According to the media and information from the Ministry of State Assets, the first proposal of changes aimed to introduce a windfall tax on all entrepreneurs operating in Poland who employ over 250 employees and have an annual net turnover from the sale of goods, products, and services and financial operations exceeding the PLN equivalent of EUR 50 million.
Upon feedback from the private sector, the government withdrew from working on implementing such solutions. AmCham's position and involvement supported the change of the decision.
However, the windfall tax introduction was also raised by the Council of the European Union at the meeting on September 30, at which the EU Member States agreed to introduce a mandatory temporary solidarity levy on the profits of companies operating in the oil, natural gas, coal, and refineries sectors. The solidarity contribution would be calculated based on taxable income, as determined by national tax laws in a tax year beginning in 2022 or 2023, that exceeds the 20% increase in average annual taxable income from 2018.
2. Support to Ukraine
AmCham Poland has been actively reacting to the war crises in Ukraine, providing humanitarian help, supporting companies in their problems, and providing advocacy actions to improve the efficiency of rules regarding support for Ukraine.
Together with several other foreign chambers of commerce active in Poland gathered in the International Group of Chambers of Commerce, AmCham issued a position containing postulates intended to ensure the protection and safety of refugees, as well as legal facilitation of aid provided by companies operating in Poland.
The AmCham postulates include, among others:
- Possibility to count expenses as tax costs for benefits provided directly to natural persons, not only through selected entities.
- Issuing a general interpretation confirming that all documented expenses incurred to counteract the effects of hostilities in Ukraine constitute tax-deductible costs as costs incurred under CSR.
- The need for additional preferences - tax credit and a deduction from income/tax base.
- Extending the scope of entities for which donations may be subject to 0% VAT
- Regulating the aid provided through Polish companies
- The need to simplify the procedures - a model of the donation agreement.
The IGCC also met with Ministry of Finance representatives to discuss the proposed postulates.
Recently, AmCham Poland, acting at the request of AmCham UA, sent a letter containing postulates aimed at increasing the transport potential of Polish and Ukrainian border crossings and shortening the time of border control.
Due to the war in Ukraine and the blocking and mining of Ukrainian ports and waters, efficient crossing/border control on the border of the Republic of Poland and Ukraine is crucial for humanitarian aid, the civilian population, and business opportunities.
Given the above, AmCham submitted the postulates to the Minister of Finance, Chief Inspector of Road Transport, Minister of Agriculture and Rural Development, Minister of the Interior and Administration, Minister of Infrastructure, and the Ukrainian Ambassador to Poland.
AmCham Poland’s letter is available here.
AmCham Ukraine’s letter here.
3. Labor Law Amendment
The Government is working to introduce the permanent possibility of remote work to the Labor Code, in place of the current provisions on teleworking and laws issued in connection with COVID-19. The definition states that remote work will be performed in full or in part in the place indicated by the employee and agreed upon each time with the employer, including the employee's residence address, particularly using direct distance communication.
According to the new regulations, the employer, as a rule, will not be able to refuse requests to work remotely for parents raising a child to the age of 4, parents and guardians looking after a person with a disability in their family, and pregnant women. The employer will also be obliged to cover the costs of remote work by the employee.
The draft amendment to the Labor Code also contains provisions that allow employers to introduce sobriety control for employees and control the presence of substances similar to alcohol.
Currently, the act is proceeded by the Parliament. The AmCham position paper is available here.
At the same time, another amendment is underway to the Labor Code, which implements EU directives to the polish legal system (2019/1152 and 2019/1158). The new amendment introduces, e.g.:
- two new types of leave: carer's leave and force majeure leave;
- extension of parental leave;
- changes to contracts for a trial period and contracts for a definite period;
- more effective protection of employees against dismissal.
The project has now been completed at the stage of the position of the European Affairs Committee as a body supporting the work of the Council of Ministers.
4. Amendment of Trade Union Act
The Parliamentary Committee on Digitization, Innovation, and Modern Technologies proposed significant changes to the Polish Trade Union Act that will affect all companies using innovative technologies as part of their operations. According to the amendment - the employer is obligated to provide, at the request of the company's trade union organization, information on the parameters, rules, and instructions on which the algorithms or artificial intelligence systems are based. This, in turn affects decision-making and may affect working and pay conditions, access to and retention of employment, including profiling.
The proposed amendment aims to adapt the act to today’s changing technological realities. According to the presented justification - employees may never meet their supervisor - in some situations, the supervisor is even on a different continent. Their work is supervised, regulated, and assessed by algorithms, often using the mechanisms of so-called artificial intelligence. This creates situations where the employee does not know the work standards that are applied to them, or the criteria by which they are assessed - so they work harder and harder, fearing losing part of their salary or being dismissed from work. Such information asymmetry is conducive to exploitation and bypassing the Labor Code’s provisions. The proposed regulation would allow trade unions to check what standards apply in the workplace.
Nevertheless, the European Union is working on a directive to improve working conditions through online platforms, which broadly deals with the discussed issue, contrary to the proposed draft act. This draft does not sufficiently specify what data would be transferred and does not consider the protection of businesses’ sensitive information.
Considering the importance of the legal changes for employers operating in Poland, AmCham is working on its position paper. The draft is currently at the stage before the 1st reading in the Parliamentary Committees.
5. Waste management - deposit system
On the website of the Government Legislation Center, a new draft act is available to amend the act on the management of packaging and packaging waste and the act on waste, which is to introduce a deposit system in Poland.
According to the new draft, the deposit system will cover the following:
- plastic packaging for drinks with a capacity of up to 3 liters,
- reusable glass packaging for drinks up to 1.5l
- aluminum cans with a capacity of up to 1l.
Single-use glass bottles with a capacity of up to 1.5l were not included in the system.
The proposed provisions oblige each retail and wholesale unit with a retail area of over 200 m2 to participate in the system in the field of "at least collecting and returning deposits and collecting empty packaging and packaging waste.” However, all commercial units will be required to collect a deposit.
The maximum amount of the deposit is PLN 2.
The provisions would enter into force one month from the publication date, and the announced vacatio legis period is 24 months. AmCham is currently consulting the new draft act with its member companies.
AmCham remains active on this topic. So far, at the beginning of March this year, we issued the position paper of our member companies gathered in the waste management group, which you can find attached below. AmCham is also part of the Advisory Team for system solutions in the field of waste management at the Ministry of Climate and Environment, and actively participates in meetings conducted by this body.
6. Amendment to the Corporate Income Tax
The majority of changes to the Polish Corporate Income Tax will enter into force on January 1, 2023, and will affect all business entities operating in Poland.
The amendment aims to change the provisions on corporate income tax; based on an analogy, provisions in the personal income tax, flat-rate income tax; and other tax acts.
The new bill includes, e.g.:
- postponing the entry into force of the provisions on the minimum income tax (2023) with a simultaneous modification of the current tax structure,
- repealing of the provisions on "hidden dividends,”
- changing the regulations on foreign-controlled entities (CFCs),
- changing the provisions on taxation with a tax on shifted income,
- changing the provisions on withholding tax (WHT),
- changes in settlement of debt financing costs in tax costs,
- easing the conditions for taking advantage of the exemption by a Polish holding company,
- clarifying the provisions on lump-sum taxation on company income.
AmCham and other chambers gathered in the International Group of Chambers of Commerce have submitted a position paper on the changes to CIT, which you will find here.
7. Implementation of the Directive on copyright
The Ministry of Culture and National Heritage conducted public consultations on the draft act amending the act on copyright, related rights, and other acts. This project intends to implement the provisions of Directive (EU) 2019/789 and 2019/790 of the European Parliament and the Council into the Polish legal system. The provisions refer to copyright applicable to certain online transmissions conducted by radio and television organizations, to the re-broadcasting of television and radio programs, and copyright in the Digital Single Market.
Both directives will be implemented through introductions provisions regarding, e.g.:
- introduction of the country-of-origin principle for the exercise of copyright and related rights by radio and television organizations in connection with the provision of additional online services;
- unifying the licensing rules for rebroadcasting services regardless of the technology used;
- regulating the situation of broadcasting radio and television programs made available by direct introduction;
- introduction of new forms of fair use in copyright (text and data mining) and modification of some already existing ones (use of works in teaching activities and reproduction of works to preserve cultural heritage);
- modification of the rules for the use of non-commercially available works (fair use, extended collective licenses);
- introducing measures to facilitate the licensing of works made available through video-on-demand services;
- introduction of a new related law for press publishers to use their press publications online;
- introducing additional remuneration for authors and performers of audiovisual work for making it available on the Internet, introducing an obligation of transparency in contractual relations between the rightsholders and users, modification of the best-selling clause.
AmCham shared the comments received from its member companies during the public consultations with the Ministry. In our letter, we appealed for cooperation between the Ministry and AmCham members in further stages of this project, so that the implementation of the Directive on copyright in the Digital Single Market to the Polish legal system could serve the nature of competitiveness and support the innovations of the Polish economy in the best way.
AmCham member companies' comments submitted to the project are available here. The draft amendment to the copyright law is still at the government stage and has not yet been submitted to the Parliament.
8. The Problem of counterfeits/piracy/IPR
AmCham receives signals from its member companies regarding counterfeits, piracy, and infringement of intellectual property rights (IPR). These practices are undesirable in many aspects, ranging from violating the rights of producers and limiting their profitability; to limiting tax revenues from the shadow economy to the state budget. Therefore, it is crucial for AmCham to identify all member companies struggling with this problem, and in the selected group, plan further activities and dialogue with the public sector aimed at reducing this harmful practice in Poland.
Bearing this in mind, if your company is experiencing these problems and you are interested in participating in the group, we ask you to contact us.
We ask for your reply to [email protected]
9. Amendment of the Sugar Tax
As of January 1, 2021, the "sugar fee" was introduced into the Polish legal system, imposing additional fees on soft drinks containing sugars. The law directly affected beverage companies, but indirectly also the representatives of the entire supply chain: producers, farmers, and consumers. The legislation is intended to combat rising obesity rates and improve public health.
Currently, the amendment is being processed to introduce changes to the sugar tax, which, according to the justification, is to simplify the levy and eliminate the identified limitations and interpretative doubts related to the application of the levy, which is achieved by clarifying the definition of a drink subject to the levy; placing a drink on the domestic market and specifying the events giving rise to the obligation to pay the levy. A change was also proposed concerning the catalog of entities obliged to pay the fee for introducing beverages to the domestic market.
Nevertheless, the amendment to the act will adversely affect the regulations in force by, e.g., extending the scope of taxation to products previously not covered; redirecting the obligation to pay the fee to producers, and not taking into account the negative consequences or the risk of double taxation in connection with the tax of concentrates.
The project is currently at the stage of government works, just after public consultations to which AmCham has submitted its position paper, which is available here.
10. Healthy Legislation 3.0
The AmCham Pharmaceutical Committee and the Pracodawcy RP employer organization have prepared the third edition of the report entitled Zdrowa Legislacja 3.0, which scrutinizes the process of creating the law governing healthcare during the COVID-19 pandemic. The document considers the quality of public consultations, the government's deadlines, and the law's stability and predictability.
The presented recommendations for creating the laws governing healthcare are formed into four main groups:
1. Idea and preparation: Each lawmaking project should start with a clear vision, which could only be created based on analysis, reflection, and consultations with future recipients of emerging legal norms.
2. Commonness and transparency: Entities indicated in the regulations, including representative employers' organizations, should receive a law draft and must have 30 days to submit their comments. AmCham also advocates that lawmakers reach for the so-called pre-consultation (a mechanism of dialogue on the planned regulations) before the draft is formulated.
3. Proportionality: When making new regulations, it is necessary to carefully consider whether the proposed measures are adequate and required to achieve the assumed goal. AmCham has noticed a tendency to "over-regulate" by imposing on all sides concerned, including healthcare entities, unnecessary obligations, and the costs associated with fulfilling them.
4. Legal certainty: The stability and consistency of new regulations are the basis of each entity's functioning. Moreover, in the healthcare sector, legal continuity is also essential, for example, in the implementation of long-term policies and strategies. New laws must be universal and go beyond the current parliament and government term of office.
The Pharmaceutical Committee also organized a debate to which it invited members of the Parliamentary and Senate Health Commissions to present the report’s conclusions. AmCham believes that good healthcare legislation can contribute to the further development of healthcare and support thousands of patients in Poland. The entire report can be found at https://amcham.pl/reports
AmCham is currently working on the next, fourth edition of the report.
11. AmCham Government Affairs People Group
The GAP Group operating within the AmCham structure brings together individuals responsible for public policy in our member companies representing various sectors of the economy. This group plays an essential role in building relationships with representatives of the public sector and takes on a consultative role in AmCham's substantive activities, constituting a platform for communication and consultation.
During our meetings, we recently hosted, e.g., the Advisor to the President of the Republic of Poland and Member of the Management Board of the Polish Investment and Trade Agency, Mr. Zdzisław Sokal, as well as the President of the Energy Regulatory Office, Mr. Rafał Gawin. We are also looking forward to a meeting with the Chairman of the Parliamentary Committee on Economy and Development, Mr. Krzysztof Tchórzewski.
If you are interested in joining the group, don't hesitate to get in touch with [email protected]
12. Other AmCham Advocacy activities
- AmCham's comments to the amendment to the Strategic Investments Support Program for the Polish Economy for 2011-2023
- Position of the AmCham Pharmaceutical Committee on the need to change the criteria for evaluating drugs in rare diseases in Poland
- Position of the AmCham Pharmaceutical Committee on the draft amendment to the Reimbursement Act
- IGCC’s position on the development of electromobility in Poland
- IGCC comments on transfer pricing