| In Principle

Art. 647¹ of the Civil Code, providing for the investor’s secondary liability for the contractor’s debts to subcontractors, was introduced into the Polish legal system in 2003. In April 2017, the parliament amended it thoroughly in adopting the Act Amending Certain Acts to Facilitate Debt Recovery. Two years after implementation, we try to answer the question whether the title of the amending act corresponds to reality and subcontractors really have a better chance of receiving payment for their work.

Art. 6491–6495 of the Civil Code is intended to ensure that the security in the form of a payment guarantee for construction works provided at the investor’s request secures timely payment of the contractor’s fee. However, one may suspect that in practice this instrument is used for a completely different purpose.

The parliament has granted subcontractors a high level of protection. The provisions on joint and several liability are strict for the investor and often in practice mean a risk of double payment for the same thing: the first time to the general contractor and the second time to the subcontractor. Therefore, the investor should be able to recover from the general contractor the sums paid directly to subcontractors.

The Public Procurement Law provides for rules autonomous from the Civil Code for settlements with subcontractors. The regulations apply independently of each other, but they are applied in parallel to contracts concluded under the public procurement regime.

Od czasu wprowadzenia do Kodeksu cywilnego, a później również do Prawa zamówień publicznych, przepisów o solidarnej odpowiedzialności inwestora za zapłatę należną podwykonawcom robót budowlanych, generalni wykonawcy znajdują się w swoistym potrzasku – między koniecznością nadzoru i dyscyplinowania podwykonawców a presją inwestora, by ich rozliczać.

A term that’s been crunched recently by lawyers and economists in Europe and throughout the world is the Uberisation of work. This refers to the phenomenon in the modern economy where members of various professions don’t work for employers as such but provide services to clients as independent contractors via a range of online platforms. The term takes its name from the well-known ride-hailing app, but similar platforms function in other industries.

Tardiness in investigations and court cases is a structural problem in Poland. This was confirmed among other things in a pilot judgment issued by the European Court of Human Rights (ECHR) of 7 July 2015 in Rutkowski and Others v. Poland. This is also confirmed by Ministry of Justice statistics. In 2018, the number of investigations of a duration of between two and five years was up 583 on 2017. Tardiness can occur in particular in complex criminal cases with a commercial element, and for this reason the problem of tardiness will probably affect corporate liability cases conducted once a law now before parliament takes effect. Based on the current wording, the question arises of who will be able to file a complaint concerning tardiness in cases of this kind, and when.

Compliance programmes are gaining in popularity, in particular in the context of a draft of a new corporate criminal liability act, as a defence precisely against this liability. Primarily, however, compliance should be a tool for ensuring that an organisation functions properly, especially as the number of regulatory requirements is on the rise. To fulfil both functions, a compliance programme must be effective.

It has now been more than 18 years since Enercon GmbH, a manufacturer of wind turbines, applied to register a colour trademark with the EUIPO consisting of a pillar with stripes in varying shades of green and white. The ECJ issued a definitive judgment on the extent of the protection granted.

A bill has been released recently regulating the minimum distance for a planned development project in the agricultural sector if it might generate an odour. The proposal comes in light of an increasing number of complaints and motions about odours given off by animal care and breeding facilities.

In a judgment of 21 March 2019 (C-443/17) the CJEU reiterated the need for a precise and concise interpretation of the term “protected product” under Regulation (EC) 469/2009 concerning the supplementary protection certificate for medicinal products. The CJEU stressed that this term only applies to an active ingredient of a medicinal product, and not combination with other substances that do not have an independent therapeutic effect.

The debate about whether implementing and enforcing a compliance programme is a general legal obligation is nothing new. Compliance is a tool for managing an organisation’s operational processes, preventing wrongdoing, and mitigating liability. For this reason, it is an element of the duty to exercise due diligence, with penalties not only of a criminal nature.