Author: Krzysztof Pawlak, attorney-at-law, counsel at Schoenherr
Contact: E-Mail (email@example.com) (linkedin.com/in/krzysztof-pawlak-legal )
Overview of legal measures as of 9 May 2020 as response to the coronavirus.
In Poland, decisions related to counteracting the COVID-19 are taken mainly at the central level. Although it is possible that a specific measures (especially aimed at the social distancing) will be differentiated, depending on regions – for the time being restriction and rules set forth at the central level, either by the Parliament or Government, are applicable meaningless on the entire territory of Poland.
On 20 April 2020 the Minister of Health declared a state of epidemic (stan epidemii) which replaced the epidemic emergency state (stan zagrożenia epidemicznego) which declared on 13 April 2020.
Main applicable legislation
Actions designed at counteracting health aspects of the COVID-19 outbreak are mostly based on the Act of 5 December 2008 on the Prevention and Suppression of Infections and Infectious Diseases in Human Beings (ustawa z dnia 5 grudnia 2008 r. o zapobieganiu oraz zwalczaniu zakażeń i chorób zakaźnych u ludzi – Dz. U. 2019 poz. 1239 ze zmianami) ("Infectious Diseases Act").
On the other hand, regulations concerning prevention and mitigation of the economic consequences of the limitation of the business activities (as resulting from restrictions imposed due to public health concerns) are included in a special new legislation adopted by the Parliament and public authorities. Currently, there are numerous new pieces of legislation in that area and still additional are drafted. However, the main act is Law of 2 March 2020 on special arrangements for preventing, preventing and combating COVID-19, other infectious diseases and their emergency situations (Ustawa z dnia 2 marca 2020 r. o szczególnych rozwiązaniach związanych z zapobieganiem, przeciwdziałaniem i zwalczeniem COVID-19, innych chorób zakaźnych oraz wywołanych nimi sytuacji kryzysowych – Dz. U. 2020 poz. 374 ze zm.) – which was already modified and expanded four times ("COVID-19 Act"). New measures and reliefs specified in the COVID-19 Act and accompanying legislation are often available to entrepreneurs subject to specific pre-requisites, certain measures are available only if the business concerned have not used other measures and certain reliefs requires case-by-case agreement with public authorities or financial institutions.
Due to vast new legislation which additionally is subject to numerous and frequent amendments, this overview provides a high-level description of selected provisions of the new regulations only and is focused on business related aspects (therefore, for instance, regulations concerning schooling are not discussed).
This summary is a selective overview for information purposes only and should not be relied on as a replacement for comprehensive legal advice. It does not form a legal opinion and does not discuss related factual and legal matters which should be taken into account when apply any of the provisions of law referred to in herein.
1. INTERVENTIONS AND RESTRICTIONS
1.1 Legal basis
Main act setting forth interventions and restrictions are set forth in the Regulation of the Council of Ministers dated 19 April 2020 on establishment of specific restrictions, orders and bans in connection with the outbreak emergency situation (Rozporządzenie Rady Ministrów z dnia 19 kwietnia 2020 r. w sprawie ustanowienia określonych ograniczeń, nakazów i zakazów w związku z wystąpieniem stanu epidemii – Dz. U. 2020 poz. 697 ze zmianami) ("General Government Regulation of 19 April 2020").
Moreover, particular ministers are issuing secondary legislation implementing specific measures described in laws adopted by the Polish Parliament, in particular in COVID-19 Act.
Updated list of such legislation may be found here: http://prawo.sejm.gov.pl/isap.nsf/ByYear.xsp?type=WDU&year=2020 (in Polish).
The border check was reinstated on Polish borders as of 13 March 2020. Currently, at least till 18 May 2020 (as per the Regulation of the Minister of Internal Affairs and Administration of 13 March 2020 on the temporary reintroduction of border control on persons crossing the national border that constitutes an internal border).
The new restrictions apply to movement of people and not, in principle, to movement of goods (please see however export control restriction sections).
Pursuant to the General Government Regulation of 19 April 2020, until further notice, among others:
1. railway cross-border communication is suspended;
2. persons crossing the border (inbound) in order to go to his/her place of residence or stay on the territory of the Republic of Poland, is obliged to:
provide Boarder Guard with information where such a person will quarantine and provide its contact telephone number;
undergo (together with persons residing or living jointly ) compulsory quarantine, lasting 14 days from the day following the crossing of the border,
3. Restrictions referred to in point 2 above do not apply to the following (among others) individuals:
by soldiers of the Armed Forces of the Republic of Poland or soldiers of the allied forces, officers of the Police, Border Guard, State Fire Service and State Protection Service, performing official tasks;
by members of diplomatic missions, consular posts and representatives of international organisations, including members of their families, who cross the border in order to transit to another country, lasting no longer than 24 hours counted from the moment of crossing the border of the Republic of Poland;
and by the following if performing its business/official activities (all terms listed below are defined by law):
fishermen, seafarers, persons performing work or providing services on offshore extraction and drilling platforms located in the area of the Polish Exclusive Economic Zone of the Baltic Sea,
by drivers engaged in international road transport or combined international transport within the meaning of road transport regulations.
1.4 Export control
Special export control regulation pertain to medical devices and equipment only. In particular, pursuant to the General Government Regulation of 19 April 2020:
1. As a rule, export or disposal outside the territory of the Republic of Poland shall be prohibited until further notice:
cardiomonitors, unless the voivode (i.e. head of regional administration) competent for the seat of the manufacturer, importer or distributor expresses, at the request of the manufacturer, importer or distributor, after consultation with the national consultant in the field of anaesthesiology and intensive care, consent to such export or disposal.
2. As a rule, until further notice, export or dispose of the following products outside the Republic of Poland, requires notification to the voivode competent for the seat or place of residence of the entrepreneur intending to export or dispose such products, no later than 36 hours before the intention to:
overalls of TYVEK type,
masks of type FFP2/FFP3,
shoe protectors (shoes),
A voivode may submit an application to the Prime Minister concerning the ban on exporting or selling these products outside the territory of the Republic of Poland.
1.5 Prohibition of crowds and free movement restrictions
Gatherings are generally forbidden until further notice.
According to the General Government Regulation of 19 April 2020, the following gatherings are banned, unless they constitute meetings related to the performance of professional/business activities or tasks:
gatherings organised in the framework of the activities of churches and other religious associations, and
events, meetings and gatherings of any kind, excluding meetings of the person concerned with his closest relatives.
Until further notice the following restriction for free movement of people are in place:
if on foot - people can move at the same time at a distance of not less than 2 m from each other, unless this distance is not possible due to care: (i) a child until the age of 13, or (ii) a disabled person (as rule);
if by means of public collective transport and motor vehicles designed to carry more than 9 persons including the driver - a given means or vehicle may transport, at the same time, no more than half of the seats.
in general – children under 13 must be accompanied by legal guardian or other adult.
Moreover, until further notice: (i) there is a general obligation to cover nose and moths (not necessarily with special masks) and (ii) it is prohibited to use city bikes available to the public in accordance with the regulations set out by cities, municipalities or districts.
Generally, the employers must ensure that (a) gloves or hand disinfectants are available for persons employed irrespective of the basis of employment disposable, (b) a distance between workplaces of at least 1,5 m, unless this is not possible due to the nature of the activity carried out in the establishment concerned and the establishment provides personal protective equipment relating to the control of COVID-19.
2. Specific restrictions (see item 3 below for changes)
Selected business activities are prohibited.
Namely, pursuant to the General Government Regulation of 19 April 2020 the following activities are prohibited until further notice:
a. consisting of the preparation and serving of meals and drinks to guests seated at the tables or guests making their own selection of dishes from the menu displayed, consumed on the spot, excluding the provision of take-away or take-away food preparation and serving services and restaurant or bar operations carried out in means of transport, carried out by separate entities,
b. related to the organisation, promotion or management of events such as fairs, exhibitions, congresses, conferences, meetings, including the activities of managing and providing staff to operate the sites and facilities where those events take place,
c. creative associated with all collective forms of culture and entertainment,
d. in connection with the screening of films or video recordings in cinemas, in the open air or elsewhere and the activities of film clubs,
e. related to the consumption and serving of beverages,
f. related to the operation of casinos, excluding online casinos,
g. related to hairdressing and other cosmetic treatments,
h. related to the activities of tattoo and piercing parlours,
i. service related to the improvement of physical condition,
j. related to sport, entertainment and recreation, in particular by running meeting places, clubs, including dance and night clubs, and swimming pools, gyms and fitness clubs,
k. related to the provision of hotel services, with limited exceptions,
l. activities of libraries, archives, museums and other cultural activities,
m. retail sale in shopping centers having sale area exceeding 2,000 sqm, unless the sale in given shop mainly consist in sale of (these exceptions do not apply if the sale is provided in standalone stand posts):
(i) food or foodstuffs for particular nutritional uses,
(ii) cosmetic products other than those intended for perfuming or beautifying,
(iv) cleaning products,
(v) medicinal products, including those in pharmacies or drugstores, and medical devices,
(vii) construction or renovation articles,
(viii) articles for pets, or
n. services in retail sale in shopping centers having sale area exceeding 2,000 sqm, unless main activity consists in the provision of medical, banking, postal, insurance, laundry or catering services consisting only of the preparation and supply of food, and at collection points (if not rendered on standalone stand posts).
Moreover, shops and service points which are allowed to operate, must comply with limitation related to maximum number of persons being at the same time in given shop/service point, specific opening hours available only for elders and obligation to ensure that clients use gloves an may disinfect their hands.
Certain relaxations of limitations were introduced as from 4 May 2020 (subject to restrictions on the number of people present at the same time and hygienic precaution measures):
1. Shopping and services:
a. Shops in shopping centres larger than 2,000 sqm can be opened, while restaurants, cafes and other places serving food can only serve take-aways;
b. Large DYI stores can be opened on the weekends;
c. Hotels and other places offering accommodation can be opened, except for the restaurants;
d. Libraries, museums and art galleries can be opened after consultations with the Sanitary Inspectorate;
e. Allowed rehabilitation services.
2. Available "open sport infrastructure":
a. boats, kayaks, pedal boats (up to 2 people);
b. tennis courts (up to 4 people per court);
c. stadiums, sports fields, golf courses, horse studs, external infrastructure for motor sports and aviation, shooting ranges, archery tracks, go-kart tracks, roller-skating and roller-skating tracks. (up to 6 people).
1.7 Shareholder's meetings and other meetings of companies
A number of changes to the Commercial Companies Code of 15 September 2000 (ustawa z dnia 15 września 2000 r. Kodeks spółek handlowych, tj. Dz. U. 2019 poz. 505 ze zmianami) (the "CCC") were implemented. They are likely to remain also after the emergency state.
In particular, shareholders', supervisory and management board meetings of limited liability companies and of joint stock companies may be held without the physical presence of the shareholders or board members, i.e. via videotelephony, unless the company's articles of association or statutes provide otherwise.
Similar rule apply to meetings of governing bodies of other legal entities, such as foundations, investment funds, co-operatives, etc.
1.8 Supply of essential medical goods
See export control comments.
Moreover, pursuant to COVID-19 Act, the minister competent for health shall, based on the information provided by the Chief Pharmaceutical Inspector, determine, by a way of announcement, the maximum prices for:
therapeutic products having the category of accessibility referred to in Article 23a, paragraph 1, subparagraphs 1 and 2 of the Act of 6 September 2001 - Pharmaceutical Law;
medical devices within the meaning of the Act of 20 May 2010 on Medical Devices;
foodstuffs of special nutrition designation within the meaning of the Act of 25 August 2006 on Safety of Food and Nutrition;
biocidal products within the meaning of the Act of 9 October 2015 on Biocidal Products,
pharmaceutical raw materials within the meaning of the Act of 6 September 2001 - Pharmaceutical law;
- which may be used in connection with counteracting COVID-19 or in a situation of threatening unavailability on the territory of the Republic of Poland in connection with COVID-19, with the exception of those products, products or measures whose price has been determined in an administrative decision issued on the basis of the provisions of the Act of 12 May 2011 on the refund of medicines, foodstuffs for special nutritional purposes and medical devices.
Additionally, the Minister of Economy in consultation with the Minister of Health and the Minister of Agriculture and Rural Development may, by way of regulation, set maximum prices or maximum wholesale and retail margins applicable to the sale of goods or services which are essential for the protection of human health or safety or the maintenance costs of households
So far, regulation on maximum prices or margins have not been issued for the above-listed products.
1.9 Health care
1. Number of regular health care services is suspended until further notice.
Pursuant to the General Government Regulation of 19 April 2020 the following services (among others) are suspended:
1.1 provision of health resort treatment services;
1.2 the provision of health care services in the field of therapeutic rehabilitation, except for cases where the cessation of rehabilitation threatens to seriously deteriorate the patient's state of health, and except for:
services provided through information and communication systems or systems, including hybrid cardiological telehabilitation,
services provided to patients as a continuity and continuation of treatment, transferred directly from an acute phase treatment centre.
1.3 provision of dental care.
2. Remote health care.
A doctor and a dentist (meeting the conditions referred to in Article 18, section 1, points 1 and 2 of the Act of 15 April 2011 on Medical Activity) may provide healthcare services in connection with counteracting COVID-19 through a tele-information system made available by an entity subordinate to the minister of health competent for health protection information systems.
3. List of refunded medicines announced after 1 March 2020 are valid till 31 August 2020.
4. Medical staff related regulation
As a rule, medical staff working in entities treating COVID-19 may not work in other places. [Article 7d of COVID-19 Act and regulation of the Minister of Health of 28 April 2020 on Standards for Restrictions on the Provision of Healthcare to Patients Other Than Those Wo Are Suspected or Infected with SARS-COV-2 Virus by Medical Professionals Having Direct Contact With Patients Suspected or Infected With It]
1.10 Persons with a higher risk
Please see item 2.2 in Border comments.
There are various sanctions for violation of the aforementioned restrictions. For details please contact your local counsel.
2. FINANCIAL SUPPORT OF BUSINESSES AND MEASURES RELAXING STANDARD RULES OF OPERATION
2.1 Legal basis
2.2 Purpose and scope of support measures
As a rule the financial support measures are aimed at counteracting the lockdown and contains a number of prerequisites deemed to prevent use of the aid due to other reasons that COVID-19. Moreover, different financing options are available for distinct enterprises. Polski Fundusz Rozwoju S.A. (a Polish sovereign fund) and Agencja Rozwoju Przemysłu S.A.
1. An entrepreneur suffering a decrease in turnover (as defined in applicable laws) as a result of COVID-19, may apply for the financial assistance (for the period of up to 3 months, as a rule) for the protection of workplaces, for the payment of benefits from the Guaranteed Employee Benefits Fund to co-finance the remuneration of employees affected by economic downtime or reduced working hours, as a result of COVID-19. Eligible entrepreneurs must satisfy a number of prerequisites including lack of arrears in taxes and social security contributions. An employee subject to economic downtime is paid by the employer a reduced salary not more than 50% (or 40% in case of employees with respect to which the entrepreneur reduced the working time no more than to 0.5 of full working time), but not less than the amount of the minimum wage determined on the basis of the minimum wage regulations (taking into account including working time) – such salary up to the amount of 50% of the minimum wage determined is financed from Guaranteed Employee Benefits Fund (the financing may not be granted to the remuneration of employees whose remuneration obtained in the month preceding the month in which the application for financing was submitted was higher than 300% of the average monthly remuneration from the previous quarter announced by the President of the Central Statistical Office).
2. Local authorities (starosta) may finance decreased remuneration (and related social security contributions) – please see Section 3 below – but only in case of SMEs and subject to number of additional conditions (including decline of turnover by 30% or more) and for up to 3 months (unless the government extends that term). The entrepreneur is obliged to maintain in employment the employees covered by the financing for the period for which co-financing is granted (if not, the entrepreneur returns the grant without interest, proportionately to the period of failure to maintain the employee's employment, within 30 days from the date of delivery of the summons to the starosta).
For discussion of COVID-19 legislation concerning the leases - please see Schoenherr's information here: https://www.schoenherr.eu/publications/publication-detail/poland-covid-19-vs-lease-agreements/ and here: https://www.schoenherr.eu/publications/publication-detail/poland-covid-19-vs-lease-agreements-not-covered-by-the-governmental-aid-programme/
2.4 Insolvency in COVID-19 time
1. Where the basis for declaring a debtor insolvent arose during a state of emergency or an epidemic declared due to COVID-19 and the state of insolvency arose due to COVID-19, the period for submitting an application for declaration of insolvency (referred to in Article 21 of the Law of 28 February 2003 shall run - The bankruptcy law) does not commence and the one commenced is interrupted. After that period, the deadline runs again. If the state of insolvency has arisen during an emergency or epidemic declared due to COVID-19, it is presumed to have arisen due to COVID-19.
2. Where the period for filing a petition for bankruptcy is determined in accordance with paragraph 1 and the petition for bankruptcy is filed by the debtor within that period and there is no previous petition for bankruptcy (as defined by the Law of 28 February 2003. - Insolvency law) the deadlines for which the date of filing the petition for the declaration of bankruptcy shall be calculated shall be extended by the number of days between the date of filing the petition for the declaration of bankruptcy and the last day on which the petition should be filed pursuant to Article 21(1), or Article 21(2a), respectively, of the Act of 28 February 2003. - Insolvency law, without regard to paragraph 1 above.
1. Public procurement
Public procurement law provisions (Act of 29 January 2004 on Public Procurement Law (Journal of Laws of 2019, item 1843)) concerning contracting do not have to be applied (among others):
1.1 if there is a high probability of rapid and uncontrolled spread of the disease or if the protection of public health requires it;
1.2 to contracts awarded by Bank Gospodarstwa Krajowego, Polski Fundusz Rozwoju Spółka Akcyjna or regional development funds referred to in Article 13 Section 1a of the Act of 5 June 1998 on the Self-Government of the Voivodeship (Journal of Laws of 2019, Items 512, 1571 and 1851), related to implementation:
(a) tasks concerning the service of funds established, entrusted or transferred on the basis of separate provisions and related to the implementation of governmental programmes or other programmes financed from public funds, or
(b) tasks related to the use of resources from such funds
- which concern the support instruments necessary to counteract the negative economic impact of COVID-19.
Additionally, parties to the public procurement contract should immediately inform each other of the impact of circumstances related to the occurrence of COVID-19 on the proper performance of the agreement they are party to, if such impact occurred or may occur (evidences for such facts should be provided).
2. Transport infrastructure
The airport operator, railway station operator, operator of a seaport, marina or sea terminal, air carrier, rail, road, sea, inland waterway or postal operator shall not be liable for damage caused as a result of acts of a legitimate public authority or its own actions to counter COVID-19, in particular for inability to provide services, including inability to transport and inability or restriction of commercial activities at airports and railway stations, including in terms of reduction or loss of revenue.
3.1 Withdrawal by the customer from certain contracts concerning leisure (if made in accordance with the procedure set out in Article 47(4) of the Act of 24 November 2017 on tourist events and related tourist services), or termination by the tour operator of such contracts (in accordance with the procedure set out in Article 47(5)(2) of that Act of 24 November 2017 on tourist events and related tourist services), which withdrawal from the contract or termination of the contract is directly related to the outbreak of the SARS-CoV-2 virus, is effective by law after 180 days from the date of notification by the customer of the withdrawal or notification of termination by the tour operator.
3.2 The entrepreneur conducting activities related to the organization of exhibitions and congresses, including the provision of premises and space for trade fairs, training courses, conferences or exams, as well as conducting cultural, entertainment, recreational and sports activities or organizing thematic exhibitions or outdoor events, in the event of termination of the contract with the customer, including the provision of additional services related to the provision of space or space, which is directly related to the negative effects of COVID-19, is obliged to return the funds paid by the customer within 180 days of the effective termination of the contract.
3. EMPLOYMENT RELATED REGULATIONS
1. In order to counteract COVID-19, the employer may instruct the employee to perform, for a fixed period of time, the work specified in the employment contract, outside the place of its permanent performance (remote work). [Article 3 of the COVID-19 Act]
2. The employer (operating in certain industries specified by law) may, for a fixed period of time not longer than until the emergency or epidemic state is cancelled:
2.1 change the system or working time schedule for employees in the manner necessary to ensure the continuity of the business;
2.2 order employees to work overtime to the extent and to the extent necessary to ensure the continuity of the operation of the business;
2.3 obligate an employee to remain outside normal working hours on standby to perform work in the company's seat or in another place designated by the employer;
2.4 order an employee to exercise the right to rest at a place designated by the employer.
[Article 15x of the COVID-19 Act]
3. An entrepreneur suffering a decrease in turnover (as defined in applicable laws) as a result of COVID-19 may reduce the employee's working hours by a maximum of 20%, not more than 0.5 full working time, provided that the remuneration may not be lower than the minimum wage determined on the basis of the minimum wage regulations, taking into account the working hours.
Local authorities may finance such decreased remuneration (and related social security contributions) but only in case of SMEs and subject to number of additional conditions (including decline of turnover by 30% or more) and for up to 3 months (unless the government extends that term).
[Article 15g Section 8 and Article 15 zzb]
4. The conditions and mode of work during a period of economic downtime or reduced working hours shall be established in agreement. The agreement should be concluded by the employer and pertinent representation of employees.
5. An employer who has experienced a decline in economic turnover following the occurrence of COVID-19 and who is (as a rule) not in arrears in the payment of tax liabilities, social security contributions, health insurance, the Guaranteed Employee Benefits Fund, the Labour Fund or the Solidarity Fund until the end of the third quarter of 2019 is permitted to:
5.1 limit uninterrupted employees rest (referred to in Article 132 § 1 of the Act of 26 June 1974. - Labour Code), to not less than 8 hours, and the uninterrupted rest referred to in Article 133 § 1 of that Act, to not less than 32 hours, covering at least 8 hours of uninterrupted daily rest;
5.2 conclude of an agreement on the introduction of a system of equivalent working time, in which an extension of the daily working time is allowed, but not more than up to 12 hours, in a settlement period not exceeding 12 months. Extended daily working time is offset by shorter daily working hours on certain days or days off;
5.3 conclude an agreement on the application of less favourable conditions of employment of employees than those resulting from employment contracts concluded with those employees, to the extent and for the time determined in the agreement.
The decline in economic turnover referred means decline in the sale of goods or services, in terms of quantity or value, as defended in details in COVID-19 Act. Moreover, the additional obligations of the employer is such a case as well as the manner of concluding the agreement with employees representatives, are specified. [Article 15 zf of COVID-19 Act]
6. Additional allowances for parents/legal custodians of children under age of 8 (as well as disabled and certain other categories of children) in case of closure of a nursery, children's club, kindergarten, school or other facility the child attends, or inability of the nanny or day carer to provide care to the child due to COVID-19 [Articles 4 and 5 of COVID-19 Act]
7. Onbording health safety training may be conducted remotely (not applicable to blue-collar employees and certain other categories of employees) [Article 12e of COVID-19 Act]
4. LEGAL PROCEEDINGS
Administrative authorities may limit their activities (decision is taken by a head of given unit). The performance of tasks by a public administration office or an organizational unit performing tasks of a public nature may be subject to a limitation consisting in the performance:
exclusively tasks necessary to provide assistance to citizens;
certain tasks by that office or unit in a manner excluding direct service of the interested parties.
During a state of emergency or an epidemic declared due to COVID-19, the time limits provided for by administrative law concerning:
legal protection of which is conditional upon the granting of legal protection before a court or authority,
time to perform the activities shaping its rights and obligations by the party,
the limitation period (terminy przedawnienia),
failure to comply with which results in the expiration or modification of rights in rem and claims and claims, as well as in the occurrence of a delay,
strict limitation periods (terminy zawite), the failure to comply with which the law has negative consequences for the party,
perform by the entities or organisational units being subject to registration in the relevant register activities which give rise to the obligation to report to that register, as well as time limits for the performance by those entities of their obligations arising from the provisions on their system
- does not start (and started are suspended) for that period (subject to specified exceptions).
As a rule (i.e. subject to number of exceptions) during a period of emergency or epidemic declared due to COVID, the course of procedural and court deadlines shall not start, and if started – will are suspended for that period, in the following proceedings:
court proceedings, including administrative proceedings,
criminal fiscal proceedings,
proceedings in cases of offences,
proceedings and inspections conducted under the Act of 29 August 1997 - Tax Ordinance,
customs and tax controls,
proceedings in the cases referred to in art. 15f section 9 of the Act of 19 November 2009 on Gambling (Journal of Laws of 2019, items 847 and 1495 and of 2020, item 284),
other proceedings conducted under the applicable acts (ustawy).
To be updated - new legislation planned.