Traple Konarski Podrecki & Partners has been once again ranked in the Chambers and Partners Europe Guide 2023. We have received recommendation in 2 areas of our expertise and 5 of our lawyers have been recognised in the ranking.

Intellectual Property – Band 2

• Prof. INP PAN dr hab. Paweł Podrecki (Band 3)
• Tomasz Targosz (Band 3)

TMT – Band 1

• Xawery Konarski (Band 1)
• Agnieszka Wachowska (Band 4)

TMT: Data Protection

• Xawery Konarski (Band 3)
• prof. UEK Jan Byrski, PhD hab. (Up and coming)

Banking & Finance: Regulatory

• prof. UEK Jan Byrski, PhD hab. (Band 2)

Many thank you to our clients and big congratulations to all ranked lawyers!

We are pleased to inform that in this year’s edition of the WTR 1000 ranking compiled by World Trademark Review, Traple Konarski Podrecki & Wspólnicy has been recognised as one of the best law firms in Poland which deals with enforcement and litigation, and was presented in the ranking’s silver band.

The recommended specialists include Paweł Podrecki, PhD, Habil. (Bronze – Individuals: enforcement and litigation) and Anna Sokołowska-Ławniczak, PhD (Recommended – Individuals: prosecution and strategy)..

UOKiK has begun examining whether and in what way businesses comply with the obligation relating to information about price cuts, introduced as of 1 January 2023 (implementing the Omnibus Directive).

When a firm announces price reductions, it is required to state – in addition to the product or service price or unit price – the lowest price in effect over the past thirty days.

The lowest price must be stated in a manner that:

• is intelligible and does not give rise to doubt,

• enables the cost of the product in question to be read correctly.

These regulations do not only apply to online and bricks-and-mortar store sales; in some cases they apply to advertising on television, radio, or online as well.

UOKiK reviewed approximately 40 e-commerce websites in various sectors: footwear, cosmetics, clothing, and sports and electronic equipment.

All of the firms inspected were asked to state their standpoint on correct labeling regarding prices and promotions. Conventional stores are also in line to be inspected. At the moment, the inspections only constitute preliminary probes.

Firms that do not comply with the new information obligations regarding product and service prices can expect to be fined by the Voivodship Trade Inspectorate Officer. The fine might be up to PLN 20 000, and even up to PLN 40 000 in cases of repeat offences.

If a firm is found to have conducted practices violating collective consumer interests, it can also be fined up to 10% of the turnover generated in the financial year preceding the year of the fine, by the President of UOKiK.

UOKiK envisages further inspections in the near future, and the areas under scrutiny will include compliance with new obligations to provide information regarding consumer reviews and placement.

Now available! Funding for micro, small, and medium-sized enterprises based in an EU country is available through the fund “Ideas Powered for Business” for registration of trade marks and industrial designs. Undertakings that received funding from the SME fund in past years may also apply for this co-financing.

How much is available?

For trade marks and industrial designs:

• reimbursement of 75% of fees at national level (Polish Patent Office), regional level (Benelux countries) and EU level (EUIPO) – for applying for a trade mark or industrial design, and fees for adding classes, as well as research, registration, publication, and deferment
• reimbursement of 50% of fees outside of the EU (WIPO) – for applying for a trade mark or industrial design, and fees for designation and subsequent fees for designation outside of the EU

For example: A company intends to register a trade mark in four classes within the EU. In total, the fees will come to EUR 1200, while with the funding the ultimate payment will be EUR 300, and the saving would be as much as EUR 900 (approximately PLN 4200)!

Maximum reimbursement of EUR 1000 per person/entity.

How would this work in practice?

Step 1 – applying for funding

The following documents are required:

• a bank statement pertaining to the enterprise’s account, bearing the bank’s name and enterprise’s name, IBAN including the country code, and BIC/SWIFT code,
• a certificate confirming VAT payer status or tax identification number (NIP) certificate, or certificate of allocation of a NIP.

Step 2 – application approval

Once the application has been approved, an application can be submitted for the necessary intellectual property measures such as registration of a trade mark. During this stage, all of the required costs, for example the application fee, have to be paid.

Important! The funding must be used within four months of being received.

Step 3 – applying for reimbursement

Costs will be reimbursed within approximately one month.

Towards the end of December (specifically 23 December 2022), the Chancellery of the Prime Minister published more of the National Cybersecurity Standards.

The Chancellery of the Prime Minister has said that the latest materials concern assessment of security and privacy protection measures taken as an element of effective risk management, ensuring security of industrial control systems, and cloud processing.

The published documents included materials on:

• Public cloud security and privacy guidelines
• General guidelines on controlling access to cloud computing systems
• A fog computing conceptual model

To reiterate, the National Cybersecurity Standards (NCS) are a set of recommendations to harmonize security systems in computer networks and systems, which largely transpose the US NIST standards.

According to the precepts, they implement intervention 6.1 of specific objective 2 of Poland’s Cybersecurity Strategy for 2019 – 2024 regarding drafting and implementing the National Cybersecurity Standards.

As they are not presently firmly entrenched in current laws, they will be published as soft law, i.e. recommendations and good practices.

Link.

The end of 2022 saw the publication of the DORA regulation and NIS 2 in the EU Official Journal, and thus the official creation of a new, future cybersecurity framework in the EU.

The DORA regulation:

• will be directly applicable across the entire EU from 17 January 2025.
• will have a major impact on business undertakings in the financial sector and operators of essential ICT services for the financial sector

NIS2:

• will supersede the current NIS directive
• will require implementation into national legal systems by 17 October 2024, and this can be done in the form of an amendment to the National Cybersecurity System Act or new legislation implementing NIS2
• will have a major impact on critical operators with important definitions in NIS2, and the distinction between operators of essential services, digital service providers, and public entities will be abolished

These rules will be extraordinarily important for IT companies that provide SOC services or other IT services for entities that fall within the scope of governance of the DORA regulation and NIS 2.

Combined with the GDPR and Cybersecurity Act currently in force, and the AI and cyberresilience acts on which work continues, this legislation will form the foundation for the EU compliance system for IT firms.

There is an ever greater number of new laws that directly affect the IT sector, and thus IT service providers expect many challenges when adapting to the new legislation.

Often, this will require them to implement new organizational procedures and technical solutions, and make preparations with regard to formalities (to document procedures correctly and draw up the appropriate contractual conditions).

The years 2023-2024 can be expected to be a time of intensive analysis and preparation for IT firms to ensure proper IT compliance.

This year, the FinTech team has already helped three firms to register with the Polish Financial Supervision Authority (KNF) as operators acting on the basis of the limited network exclusion.

The KNF has revised its approach to interpretation of a very limited range of goods and services under the limited network exclusion (article 6(11) of the PSA). The quantitative interpretation used in the past (“a number of…”) has been fully replaced by an objective-oriented interpretation in the EBA/GL/2022/02 guidelines (range of functionally connected goods and services).

The KNF takes a strict approach to the definition of functional connection. In particular, it does not accept that it can exist through reference to categories distinguished under other laws – the act of law itself states this (for example ticketing under article 6(12)(b) of the PSA) as do generally applicable provisions of civil law (for example, minor matters of daily life under article 384 § 2 of the Civil Code).

Equally, under the strict definition of the functional connection (for example transport/travel) the KNF does now accept a broad range of goods and services (for example from use of various types of transport, through day-to-day activities relating to those types of transport (fuel, loading, washing, repairs) to breakdown recovery services and travel insurance).”

Since January, 2023 two significant changes to the rules on taxation of residentials rentals will come into force. Till the end of 2022 property owners who rented their residential properties not as a part of their business activity had the freedom to choose type of taxation, either under general rules applying to income tax, ie. according to the progressive tax scale, or by applying flat tax without right to deduct costs. In 2023 such tax payers will not be able to tax the income under according to the tax scale. The only form of taxation available to them will be a flat tax with no possibility to deduct any costs such as eg. expenses for renovations, depreciation write-offs or mortgage interest. Income from private rental will be taxed at the rate of 8.5% of income under PLN 100,000 and 12.5% on the excess over PLN 100,000.

Additionally, those taxpayers who rent residential premises as part of their business activities will not be able use depreciation deductions as deductible expenses. This new rule will apply to broad range of residential properties rented out both by personal and corporate income taxpayers.

New legislation: an amendment to the Labor Code regarding remote work and sobriety checks was approved by Parliament (Sejm) on December 1, 2022, and on December 15, 2022, the Senate passed the fourth resolution on the amendment (act).

The new developments under the amendment include an employer’s obligation to provide the employee with the installation, servicing, and maintenance of work equipment, or to cover the related costs, as well as to cover the costs of electricity and telecommunications services necessary to work remotely.

The new legislation will impose a number of new obligations on employers.

As it is very likely that the legislation will be passed, employers need to start preparing internal regulations/documents, such as:

• an agreement or bylaws on remote work rules (a key regulation),
• an update to the information referred to in Article 29 § 3 of the Labor Code (the employer’s notification obligation),
• the data protection policy for the performance of remote work and confirmation that an employee has reviewed the information regarding the procedure,
• occupational risk assessments – possible universal risk assessment for different groups of remote work positions,
• employee declaration confirming that they have reviewed the occupational risk assessment and health and safety information,
• employee declaration agreeing to health and safety requirements at the remote work location.

In addition, according to the new legislation, the introduction of sobriety checks, the group or groups of employees to whom they apply, the applicable procedure, including the type of device used,, and the time and frequency with which they are conducted shall be established in a collective bargaining agreement or in work regulations, or in an announcement if there is no collective bargaining agreement in effect or there is no requirement to establish work regulations.

Currently, the act is sent to the Sejm, which will consider the amendments proposed by the Senate (including extending occasional remote work from 24 to 30 days, extending vacatio legis in the field of remote work regulations from 2 to 3 months).

The bill will now go to the Senate. The specific effective date of the legislation is not yet known, but it is possible that the amendment will come into force in the first Q of 2023 (at this point, we assume remote work two months after the promulgation of the new law, sobriety checks fourteen days after promulgation).

Does EU consumer law need to be strengthened with regard to digital goods and services?

The EC has commenced public consultations to determine whether current legislation sufficiently protects consumers.

The following need to be reviewed with regard to digital fairness:

• dark patterns,  
• personalization practices,
• recommendation marketing,
• influencer marketing,  
• digital subscription,
• virtual assets, and currencies in applications.

The consultations concern three EU directives:

• Directive 2005/29/EC on unfair commercial practices,
• Directive 2011/83/EC on consumer rights,
• Directive 93/13/EEC on unfair terms in consumer contracts.

Will further broad-ranging legislation to regulate the Internet prove necessary, such as the Digital Services Act or Digital Markets Act? Will a new act, given the working title Digital Fairness Act by EC official Egelyn Braun, be necessary?

The consultations will continue until 20 February 2023.

Link.

In December 2022 Polish government proposed new rules on distribution of wind power in an attempt to promote renewable energy. The draft of legislation imposes an obligation on an investor constructing a wind farm on the territory of a given municipality to set aside at least 10% of the installed capacity for the use of interested residents of this municipality. According to the draft such residents will be treated as virtual prosumers. Being a virtual prosumer gives one the possibility to generate electricity for one’s own needs from a renewable energy source connected to the grid in a place other than one’s place of residence. The same so-called net-billing system would apply to virtual prosumers as in case of standard renewable energy prosumer. Such system is based on separate settlement of the value of electricity injected into the power grid and electricity taken from the grid, based on the value of energy determined according to the exchange price. Each resident in the municipality will have the right to enter into virtual prosumer agreement for a period up to 15 years.

The draft of legislation provides for specific rules for cooperation between the residents and the investor, as well as between the investor and the municipality.

A new proposal was published today by the Government Legislation Centre for amendment of the Act on Copyright and Related Rights and certain other acts.

The act is intended to implement

• Directive 2019/790 on copyright and related rights in the Digital Single Market (DSM), and
• Directive (EU) 2019/789 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes (SATCAB)

The changes proposed in the new version affect issues such as

• transmission of works;
• retransmission and distribution of works;
• online content-sharing service providers;
• radio and television programs;
• television broadcasting of sports events;
• use of works that are not commercially available;
• the right to press publications as part of digital services.

For more about the new proposal, go to – link.