project | In Principle

In July 2017 the Government Legislative Centre published a proposal to amend the Trading in Financial Instruments Act and certain other acts, to bring the Polish legal system into compliance with the EU laws governing the capital market, in particular MiFID II (Directive 2014/65/EU) and MiFIR (Regulation 600/2014). The amendment would significantly change the wording of a number of existing acts and require capital market entities to comply with the new regulations. One notable feature is the introduction of the notion of reverse solicitation, not previously regulated in Polish law.

A proposal for a long-promised act intended to facilitate the operation of businesses was published on the Government Legislation Centre website in February. The proposed Business Law contains a set of rules that would apply in administrative proceedings from as early as September 2017.

On the last day of October a notice was published on the Sejm website on filing of a parliamentarian’s bill to amend the Personal Income Tax Act and the Corporate Income Tax Act. The changes to the CIT Act, to enter into force on 1 January 2017, would eliminate the exemption from corporate income tax for closed-end investment funds (FIZ). This exemption has been used as a major instrument for tax optimisation, for example for entities involved in trading of debt and real property, and for taxpayers seeking protection against rules governing controlled foreign corporations (CFC).

Work on Poland’s new Act on Concessions for Constructions Works and Services is near the end. The act is supposed to enter into force before the end of this year.

Tightening up the tax system is one of the priorities of the current Polish government. Inter-ministerial consultations are now underway concerning a draft amendment that would expand the catalogue of offences in the Criminal Code and vest the public authorities, including the newly created National Treasury Administration, with broad enforcement powers. All of this is designed to combat VAT fraud.

On 4 July 2016, a conference entitled “The power market: Consultations on functional solutions” was held at the Polish Ministry of Energy. At the event, the Minister of Energy announced that a Power Market Act would be drafted by the end of 2016. The power market is intended to ensure the energy security of Poland and continuity and reliability of the electricity supply.

“Water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such,” states the Water Framework Directive. The principle of the recovery of the costs of water services is being introduced to encourage savings and optimal use of water. This will be a substantial burden for many businesses.

Poland did not manage to implement the EU’s new procurement directives on schedule, but contracting authorities are required to conduct proceedings in full compliance with EU law.

The proposed amendment to the Public Procurement Law would introduce grounds for excluding contractors not previously recognised under Polish law, but would also expressly depart from the existing restrictive approach to exclusion of contractors. The “self-cleaning” procedure and the optional nature of certain grounds are new solutions.

The proposed amendment of the Public Procurement Law, despite introducing certain changes in the rules for participation by third parties in performance of public contracts, does not resolve all doubts concerning the existing practice. For some of them, it would be helpful to consult the guidelines from a recent judgment of the Court of Justice.

The development of information technology has changed the public procurement system. An amendment will finally be adopted requiring electronic communication between contracting authorities and potential contractors.

One of the most important changes in the Public Procurement Law is introduction of the European Single Procurement Document, which should make it much simpler for bidders to apply for public contracts.