Dr Ewelina Stobiecka

radca prawny

I’ve been supporting entrepreneurs for almost twenty years in resolving commercial disputes in and out of court. I represent my clients as an attorney and negotiator and also act as a commercial mediator...
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Settle your dispute

An interview with Paweł Rochowicz from “Rzeczpospolita” daily, published in the “Law every day” section on 24th December 2020

Settlement with franc borrowers

Paweł Rochowicz (PR): The head of the Financial Supervision Authority recommended that franc borrowers settle their disputes with banks amicably. Is such a solution likely to succeed?

Ewelina Stobiecka (ES): It depends on the situation of the individual bank customer. In my practice I have met many people who do not have time for court disputes and they are good bank customers, they don’t want to change the bank and therefore want to settle. Unfortunately, the willingness of banks to make such settlements is still negligible.

PR: They don’t want to settle, even though they are increasingly losing these cases with customers in the courts, especially after the telling CJEU ruling?

ES: Unfortunately, this is how it looks so far. Perhaps, however, in response to the summons by the head of the Financial Supervision Authority (KNF) mentioned by the editor, as well as to these lost court cases and the unfavourable court line shaping up for banks, banks will soon develop a different position. But some may also stall, waiting until the cases in the second instance are resolved. For the time being, time has worked for them, because due to the pandemic, the processing of cases in the courts has lengthened considerably. However, some bank customers also file settlement notices, even before filing a lawsuit. This is not only a way of interrupting the limitation period, but also a kind of act of goodwill demonstrating that the client wants to reach an agreement with the bank.  I know of several examples from practice where such notices were filed together with a specific settlement proposal, including a proposal by the client to convert the loan into PLN from the outset, which is exactly what the KNF suggests. However, there was no settlement, even though the client voluntarily wanted to pay a considerable amount on top of what he had already paid and what would have been billed if the loan had been granted on the same terms as a PLN loan. Many other people, for various reasons, would also like to get rid of the loan quickly, not only because of its amount, but also, for example, in order to be able to sell the property. It also happens that credit is jointly repaid by former spouses, who being already divorced do not want to be stuck in this embarrassing arrangement as co-borrowers.

PR: Let us assume that the bank values the client in question and wants a settlement. Would it really be quicker to settle than going to court?

ES: I think it would be quicker. You can file, as I mentioned, a request for a settlement attempt. Then the court sets a special hearing. If a settlement is reached, the court approves it and such settlement has the force of a judgment. The second possibility is to settle out of court, for example before a mediator. Many centres can be used here, including, as it were, the mediation centre at the Polish Financial Supervision Authority. Such a settlement can also be submitted to court for approval. My experience shows that courts approve such settlements very quickly. They usually do it willingly, if only to improve their statistics of settled cases. It is also possible not to involve the court at all and to reach an agreement by way of a simple out-of-court settlement.

PR: Franc borrowers may be concerned, however, that such a settlement will not be sufficiently effective.

ES: Much depends on how it is formulated. For example, it is possible to use the institution of a substantive legal so-called waiver of debt. This is the equivalent of a waiver of claims in court proceedings, when, by concluding a settlement, we waive all claims for the future. Then, the parties may stipulate in such a settlement referring to their loan agreement that the client owes the bank a specific amount, and the parameters of the debt repayment are subject to specific modifications. If such agreements were properly drafted, it would be very difficult to challenge them unless someone could prove extraordinary circumstances relating to defects in declarations of will, such as acting under the influence of threats, which would be a rather daunting task.

PR: Customers who have been let down by banks may not trust various similar clauses…

ES: I can imagine that if a bank takes a more individual approach to a client and, for example, through its settlement agent discusses the terms of such a settlement, it may gain the client’s trust, especially if the client wants to reach such a settlement. Of course, a different impression may be created if the bank acts in a clerical and schematic manner, simply sending out a ‘settlement’ annex to a credit agreement, printed in hundreds of thousands of identical copies for different customers. When a given bank has granted thousands of such loans, then, of course, an individual approach to each client is difficult, but it is possible because, after all, the borrowers themselves also “group” themselves around, for example, a single attorney who represents them in court or in various associations. In addition, banks can and should develop a multi-dimensional settlement decision matrix, grouping clients and their claims according to specific criteria, which will help to make a fairly individualized settlement proposal. One should take into account in such a matrix , among others, the date the loan was granted, which of course is linked to the exchange rate and the volume of flows so far, the term for which it was granted, the problem of spreads and the personal situation of the borrowers. This is also in the interest of the banks, insofar as they want these loans to be repaid as efficiently as possible and to rid their ‘portfolio’ of these difficult debts. In the current special situation of the crisis caused by the pandemic, it can be expected that more than one client may declare consumer bankruptcy, for example. Then, recovering money from them is much more difficult, and selling such debts is not easy either.

PR: However, if one were to choose the court scenario, one would probably need to adopt a great deal of patience

ES: Franc borrowers are indeed waiting a long time for judgments in initiated cases. In addition, even if the court gives a verdict and invalidates the old credit agreement, it does not calculate in detail the repayment of the loan – an agreement between the bank and the client is needed here anyway. It should also be noted that many law firms assisting Franc borrowers count on a bonus from the amount won and they also manage conducting a court case. These are not always honest firms/practitioners, which is also already being dealt with by the UOKiK. However, given the KNF’s clear suggestions, I think banks will be willing to settle. This, in turn, may lead to faster repayment of loans and other beneficial events, e.g. the property securing the client’s loan being released and freely traded. Settlement can also be beneficial for the bank in terms of its market position and reliable asset valuation. Especially in times of pandemics, when many borrowers, including other bank customers, lose their ability to repay their loans, the bank has to apply a higher risk weighting to such distressed loans. If we add the thousands of cases of franc borrowers to this, in the vast majority of which judgments invalidating credit agreements have already been handed down, this obviously threatens to destabilise the banking system. I believe that the whole story of the franc borrowers in Poland needs a ‘reset’, with both sides of the story being looked at from the point of view of profit and loss, taking all the circumstances into account. Looking at it from the perspective of such a profit and loss account, a settlement is often the most sensible solution (for both sides), as the Polish Financial Supervision Authority itself has already admitted.

If you want us to help you solve a dispute in business, please contact us under:

tel.: +48 669 73 79 79e-mail: e.stobiecka@taylorwessing.com

Mediation in shopping malls

In many EU countries, entrepreneurs are counting the losses caused by the coronavirus pandemic, which has had a particular effect on the retail sector, including small, medium and large enterprises in the shopping centre sector, which generates about 30% of the value of retail trade in Poland and is an important contributor to the national budget and which directly and indirectly employs about 650,000 to 1 million.

In addition lessees in shopping centres have been deprived of the opportunity to earn money and owners of these centres, where their income has significantly decreased, have been financially injured there.

The direction of claims are different because both owners of shopping centres with tenants (e.g. for the exemption from rent for the time during  closure of the centres) and tenants towards the state (e.g. due to unconstitutional restrictions introduced, a problem which is present in many European jurisdictions) may be in dispute.

Entrepreneurs have reviewed their contracts in search of force majeure or emergency clauses and there is a lot of discussion on how the state can support the industry with state aid.

This business reality raises the question of how to resolve disputes in a situation where the courts do not operate or operate to a very limited extent through a sanitary regime, which sometimes means extended waiting times or cancellations.

The answer to these or other issues of entrepreneurs are alternative methods of conflict resolution, including economic mediation. This is because any dispute can be resolved through mediation, which in turn may prove to be quite an effective tool that can also be used during a pandemic.

Commercial mediation

Commercial mediation has been experiencing a revival in Poland in recent years, in particular the legislative environment for mediation, including a number of subsequent amendments to the law is aimed at encouraging entrepreneurs to mediate.

Mediation is a highly informal method of resolving disputes in business, which is several times cheaper than court proceedings or arbitration proceedings. Mediation can also be carried out using various means of distance communication (by video- or teleconference, or even in writing on-line). Mediation with the participation of a mediator can be carried out without their direct contact, i.e. – at present – without a threat to their health.

No special contractual arrangement between the parties is needed to use mediation. Mediation can also take place without a specific referral to a court when the parties themselves decide to have mediation conducted by an independent mediator of their choice or by an independent, specialised mediation centre (so-called private mediation).

In fact mediation can not only resolve an existing dispute, but can also “mediate” special contractual terms and conditions under special circumstances such as a pandemic. This may be important precisely in a situation where the parties concluding the contract did not foresee certain circumstances of their performance, such as the introduction of a state of epidemics or epidemic threat throughout the country.

Classical economic mediation consists of the participation of an independent commercial mediator in communication between the parties in dispute. The parties, as if moderated by the mediator in the mediation procedure, strive to find a solution which would be acceptable to both parties. The mediation process should therefore lead to a win-win situation.

The settlement agreement replaces the judgment

Practice shows that a solution worked out by both parties with the help of a mediator through economic mediation is usually implemented by them on a voluntary basis and no means are needed to force the parties to implement the settlement reached. It is worth remembering however that the settlement reached through economic mediation can be confirmed in court. In such a situation the mediator or attorneys of the parties ask the court to set a time limit during which the settlement agreement is formally approved by the court, which becomes an enforcement title and thus gains the value and legal force of the court judgment.

It is estimated that mediation is at least ten times cheaper than a court trial. Perhaps it is precisely this current, exceptional situation that will contribute to greater use of economic mediation in business and entrepreneurs will more often use this tool to resolve disputes.

Cost comparison: court proceedings vs. private mediation within the International Mediation Centre (www.mcm.org.pl)

The value of the object of the dispute: PLN 3,000,000

Costs Court proceedings Mediation
Preliminary fees / registration of a case 100,000 zł court fee 1,500 zł net registration fee
Legal support services during the proceedings* approx. 120,000 zł

 

Mediation cost**  

 

15,000 zł net (15 mediation hours)
Experts opinion

 

approx. 3,000 zł Not applicable
Enforcement proceedings approx. 2,500 zł Not applicable
Total sum approx. 225,500 zł 16,500 zł

*costs calculated on the basis of World Bank data published in the Doing Business Report (Poland) 2017

** Cost of mediation sessions at the International Mediation Centre (www.mcm.org.pl)

If you want us to help you solve a dispute in business, please contact us under:

tel.: +48 669 73 79 79e-mail: e.stobiecka@taylorwessing.com

Online commercial mediation

Ewelina Stobiecka17 June 2020Comments (0)

Online commercial mediation

Commercial mediation is an increasingly used form of dispute resolution. The new civil procedure, which is only a few months old, is also conducive to its application and is based on amicable methods of dispute resolution during the so-called preparatory meeting, which is a new element of the classic court process.

The flexibility of the mediation procedure, the cost and time efficiency of this form of mediation among the available alternative methods of conflict resolution, makes it increasingly common for entrepreneurs to decide on mediation even before their case goes to court.

Such economic mediation – private – not only gives the parties full confidentiality regarding the dispute resolution process, but also involves the parties directly in the process of seeking creative solutions. The settlement reached in mediation is therefore a joint achievement of the parties acting with the participation of a professional mediator who actively supports the parties in this process.

Online dispute resolution,
applicable also in the court

Mediations can also take place online, which is used not only in conditions of forced social isolation caused by the epidemic, but also in situations where the parties for some reason, even logistical, cannot meet in one place.

Besides, the online form is also commonly used in arbitration, where witnesses or parties can be questioned using instant messaging.

This form will also be used by courts in Poland, as envisaged by the legislator in the last part of the “anti-covid” regulations, indicating that:

during the period of an epidemic or a state of epidemic danger and within one year of the cancellation of the last one, a hearing or an open meeting shall be held using technical devices enabling them to be conducted at a distance with simultaneous transmission of video and sound (…) unless holding a hearing or an open meeting without the use of the above devices will not cause an undue threat to the health of persons participating in it (art. 15 zzs’ of the Act on special arrangements for the prevention, prevention and combating of COVID-19, other infectious diseases and crisis situations).

Technical issues

Choosing the right communicator to conduct online mediation is the task of the mediator and the mediation centre offering such mediation. The only requirement is to ensure the confidentiality of the process as well as the possibility to hold joint and individual meetings with each of the parties.

This requires the use of a communicator providing the possibility of creating virtual rooms (2 or 3 at the same time), where the parties can talk individually with the mediator and meet all participants of the mediation in joint sessions.

Details concerning the use of a particular communicator as well as the conditions for conducting mediation in general are regulated in the mediation agreement concluded by the parties with the mediator or mediation centre.

If you want us to help you solve a dispute in business, please contact us under:

tel.: +48 669 73 79 79e-mail: e.stobiecka@taylorwessing.com

BIT and investment mediationThe effects of the pandemic will be felt globally. Lawyers of different jurisdictions, counting the losses of their clients, are considering the possibilities of claiming damages, for which there are different legal grounds.

It appears that investors from non-EU countries may soon be able to protect their investments in the EU better than intra-EU investors. Why?

Well, on 5 May 2020, 23 EU Member States have concluded an Agreement on the termination of Bilateral Investment Treaties (BITs) between the Member States of the European Union (“the Agreement”).

Thus, investment arbitration based on intra-EU bilateral agreements will soon be impossible. Of course, EU investors will be able to look for other grounds for their claims, not least the Agreement recently concluded by most EU Member States ends an era in investor relations.

As mentioned above, however, the Agreement does not apply to all EU countries, the other four countries that “broke out” are: Austria, Finland, Ireland and Sweden. Their intra-EU bilateral agreements therefore remain intact.

The signed agreement is still to be ratified and is due to enter into force 30 calendar days after the date on which the Secretary-General of the Council of the European Union receives an instrument of ratification, approval or acceptance from two Member States (it therefore takes effect for each third and subsequent Member State 30 calendar days after the deposit of its instrument of ratification, approval or acceptance).

It all started in Slovakia

The decision to dissolve the intra-EU BITs concluded by the Member States follows the judgment of 6 March 2018 in the case of the Slovak Republic vs Achmea BV (C-284/16). The Court of Justice of the European Union concluded in this judgment that a system where different types of State-investor protection existed throughout the EU is incompatible with EU law.

The Court considered that the possibility of arbitration on matters which may concern the application of EU law undermines the primacy of EU law and the role that the Court plays in its interpretation. The Court has consistently found that EU law prevents individual Member States from agreeing on investor and state protection bilaterally.

Following the Achmea judgment, all EU Member States signed on 15-16 January 2019 declarations (whereby Finland, Hungary, Luxembourg, Malta, Slovenia and Sweden refused to sign the Energy Charter Treaty “ECT” commitment) in which they committed to terminate all bilateral investment agreements concluded between them under a multilateral treaty or, if more favourable to both parties, bilateral.

The Agreement is one of the main steps in implementing these declarations. In addition, it also covers those BITs that have already been dissolved but, due to so-called ‘sunset clauses’ – still valid. The expiry clause is a provision which extends the protection of investments made before the date of BIT termination for another period.

Among other things, Poland started to terminate its intra-EU investment agreements already in 2017.

What about pending arbitration proceedings
or those with a judgment?

The Agreement provides that arbitration clauses in terminated bilateral agreements can no longer serve as a legal basis for initiating new proceedings. As a result, investors who have not yet initiated proceedings will no longer be able to do so.

However, the question remains open as to what will happen to ‘pending’ proceedings. Certain categories of cases are proposed here, i.e. “Arbitration Proceedings in progress” and “New Arbitration Proceedings”.

The former are proceedings initiated before 6 March 2018, which is the date of the Achmea judgment, and are not completed, while the latter are proceedings initiated on or after 6 March 2018.

Where one of the signatories to the Agreement is a party to pending or new arbitration proceedings, the Agreement provides that it must inform the arbitration tribunal that the arbitration clause contained in the relevant BIT does not apply.

In addition, the signatory must ask the competent national court to set aside, annul or refrain from recognising and enforcing any arbitration award already made in the context of such arbitration proceedings.

Lawyers of different jurisdictions express their concerns about these requirements.

It is argued that these requirements are intended to retroactively (and unilaterally) remove rights that one party has decided to exercise. They may also conflict with certain conventions, such as the International Centre for Settlement of Investment Disputes (ICSID).

There are now more questions than answers, including, for example, how national courts will deal with arguments based on the unilateral termination of an arbitration agreement, in particular where recognition and enforcement is sought outside the European Union.

Structured dialogue in ongoing arbitration proceedings /
facilitation or “investment mediation”?

The agreement between EU countries also provides that both parties – investor and state – may, under certain conditions, engage in a so-called “structured dialogue” with a view to launching a settlement procedure.

Thus, it may turn out that the arbitration procedures used so far (sometimes very complicated and formalised) will be replaced by a “dialogue”, which in the case of such disputes may be classical mediation or economic facilitation.

Or maybe it is worth to start talking about “investment facilitation” or “mediation”?

As proposed in Article 9 of the Agreement, an investor who is a party to arbitration proceedings in progress may request the ‘Contracting Party’ participating in those proceedings to enter into a settlement in accordance with the procedure set out in that Article, provided that:

(a) the arbitration proceedings in progress have been suspended at the request of the investor, and
(b) if an award has already been given in the course of arbitration proceedings but has not yet been finally enforced or enforced, the investor undertakes not to seek its recognition, enforcement, enforcement or payment in a ‘Member State’ or in a third country or, if such proceedings have already begun, to seek its suspension.

The Agreement provides for time-limits and a procedure for this dialogue, but it is important that the settlement procedure can only be initiated within six months of the termination of the PCA concerned.

The agreement also provides that the settlement procedure is supervised by an impartial facilitator to determine whether it is amicable, legal and fair between the parties.

The facilitator shall be appointed by common agreement between the investor and the “Contracting Party” concerned acting as respondent in the relevant arbitration proceedings. He shall be chosen from persons whose independence and impartiality are beyond doubt and who possess the necessary qualifications, including a thorough knowledge of Union law.

He may not be a national of the Member State in which the investment took place or the investor’s home Member State and may not be in a position of conflict of interest. The Agreement also provides for an indicative schedule of facilitator fees as set out in Annex D to the Agreement.

If an agreement is reached, the parties to the proceedings are obliged to accept it in a legally binding manner and without undue delay. The terms of the settlement must include: (i) an undertaking by the investor to withdraw the arbitration claim or to waive enforcement of an existing award or, where applicable, an undertaking to take into account any compensation paid previously in the course of the arbitration proceedings in order to avoid double compensation, and (ii) an undertaking to refrain from initiating new arbitration proceedings.

Whether it will be a classic facilitation or investment mediation, we will probably find out not only by learning the names of the indicated experts, but also the fate of the first proceedings using this procedure.

The signed Agreement opens a completely new chapter in bilateral relations between the EU countries, related to the protection of mutual investments. Of course, a lot of questions arise, including those indicated above. In addition, given the different dispute resolution cultures in different European countries, only the first experience of the ‘structured dialogue’ will show how strong and effective it will be.

If you want us to help you solve a dispute in business, please contact us under:

tel.: +48 669 73 79 79e-mail: e.stobiecka@taylorwessing.com

Compensation for retail in CEEIn many European Union countries, entrepreneurs are counting the losses caused by the coronavirus pandemic, or more precisely the losses caused by the restrictions introduced in their activity by the states in connection with the fight against the pandemic.

The situation particularly affects the retail sector, including small, medium and large enterprises in the shopping centre sector, which generates about 30% of the value of retail trade in Poland and is an important contributor to the budget, employing around 650,000 up to 1 million employees directly and indirectly.

Of course, entrepreneurs, as other citizens understand the situation and reasons for the restrictions introduced, all the more so because the restrictions introduced are those to property rights and civil liberties, and the Constitution of the Republic of Poland makes it possible to measure compensation for material losses only in the case of emergency situations, entrepreneurs are entitled to compensation.

It transpires that claims for damages are more often formulated due to either illegal or discriminatory action of governments, which introduce restrictions without deeper legal reflection, and thus are legally flawed. Such position usually leads to  far-reaching deficiency of the introduced legal acts.

Such lawsuits are already filed, for example, in Austria, where one of the restrictions differentiated entrepreneurs according to the trade area (the so-called “zoning ban”) in a discriminatory manner and made it impossible to adjust the trade area to the requirements of the defective law, which is also discussed in more detail below.

In Hungary, one of the potential grounds for claiming compensation may be the recently introduced “extraordinary retail tax”. This tax seems to be levied in Hungary in a similar manner on both retail chains that may continue to operate during coronavirus restrictions and on those which cannot operate for objective reasons. Such a situation is liable to breach both the principle of ‘fair and equal treatment’ and the principle of ‘equal legal protection’ to which traders are entitled.

A lively legal debate is also taking place with our southern neighbours, the Czech Republic. The Municipal Court in Prague has already declared unconstitutional provisions issued without the benefit of the ‘state of emergency’ legislation (referring to a similar institution in Polish law).

In response, the government took action to rectify this irregularity. The court also gave the government a few days’ deadline to implement the prohibition in a manner consistent with the Constitution. Concerns are also being expressed about the (non)constitutionality of the anti-crisis measures implemented by the government. Against this backdrop, corporate lawyers in the Czech Republic may also formulate claims for damages from the state.

Poland. Legal facts.

Similar thoughts and conclusions are formulated in Poland. In a very interesting text, which appeared on April 23rd in Rzeczpospolita, Andrzej Mikosz, the Minister of Treasury in the years 2005-2006, presented the effects of the difference between “epidemic” and “pandemic” in a very neat way. This is not only a terminological issue, but also a legal one which has far-reaching consequences for entrepreneurs and the state.

In his text, Mr Mikosz suggested that only the introduction of a state of emergency in Poland could limit claims (of entrepreneurs) against the State Treasury.  The previously existing state of epidemic emergency in Poland, and now the state of epidemics, were introduced in a defective manner.

It is important for potential – related to that state – claims of entrepreneurs where the fact that the regulation of the executive authority, on the basis of which the state of epidemic was introduced in Poland, does not have a presumption of conformity with the Constitution. This means that in a potential trial any judge may consider such a regulation as not binding in the case.

In Poland we have de facto state of coronavirus pandemic, which meets all the conditions to declare a state of emergency in Poland. In any such state, however, in accordance with the provisions of the Constitution as well as the detailed act relating to compensation for property losses resulting from the limitation of freedom and human and civil rights and freedoms in time (Act of 22 November 2002), entrepreneurs are entitled to compensation, which (however) has been limited (appropriately measured) by appropriate regulations due to the existence of the state of emergency.

There is no doubt, however, that also in the current situation (“epidemic state”) we are dealing with restrictions in conducting a business activity which directly affected the interests of entrepreneurs. Furthermore, a number of these may be considered in the context of a restriction of the right of ownership, which is reserved for the Act, and which, as we know, were introduced by an executive act of the Minister of Health, or even the Polish government i.e. with a clear violation to the Constitution.

The “state of epidemic” does not cause the limitation of the liability of the State Treasury for violating citizens’ freedoms and rights, e.g. for property losses resulting from the restriction of the right of ownership. No measure of State Treasury liability will be applied here.

The Constitution provides for a situation in which – in the name of protection of the higher good, the public good – it is possible to limit the freedom and rights of persons and entrepreneurs, while at the same time measuring the responsibility of the Treasury for their property losses. Such a situation only concerns an emergency state, and therefore not a “pandemic state”.

Therefore, in the current state of the “epidemic”, covering – in accordance with the content of the Regulation of the Council of Ministers – the entire territory of the Republic of Poland, there are no legal grounds to avoid or measure compensation for entrepreneurs who have suffered or will suffer a property loss resulting from the “mandatory” (and introduced in violation of the law) of the Regulation restrictions on rights and freedoms.

Thus, in each case in which it will be possible to demonstrate an adequate causal link between the loss and the limitations introduced by the “state of the epidemic”, there will be grounds for claiming compensation from the Treasury.

The legal basis for such claims may be the attribution of liability for damages to the Treasury on the basis of Article 417 § 1 of the Civil Code, which provides for such liability for damage caused as a result of illegal activity in the exercise of public authority.

Consequences for business

These legal “tricks” serve, in the current situation, entrepreneurs who have specific claims to the State Treasury for compensation caused by legally defective restrictions on their business activity.

Particularly affected industries, such as hotels, services or retail, can claim compensation from the State, regardless of any state action on the anti-crisis measures and support (so called anti-crisis shield) already introduced. It is of course not excluded that the court will take into account the aid received from the state when deciding on compensation. However, in no case can this aid exclude the liability of the State Treasury for illegal activities which lead to a reduction of entrepreneurs’ rights.

The discussion is particularly heated at the moment in the retail sector, which, as a result of restrictions and closures of shopping centres, does not operate for more than a month (or operates in a very limited way). Experts and analysts talk about the “earthquake” in this industry. The losses generated relate not only to lost profit from sales, but also to personnel maintenance costs, costs of renting premises or other fixed costs associated with the business (and currently not carried out).

In the current situation, there are no obstacles for an entrepreneur which operate in this industry to summarise its losses, calculate the costs and, with the help of lawyers, formulate a claim against the State Treasury.

With the state failing to utilise the facility  to measure liability, resulting from the Constitution of the Republic of Poland and reserved for state of emergency (and not epidemics state), may result in the calculated and raised claims being – sooner or later – adjudged.

Of course, each lawsuit filed is also (often) several years in a court battle. Today, all companies are fighting for survival. Those that will survive will be able to claim not only support but also compensation during the period until the statute of limitations for their claims. Creditors, and especially managers of those who do not survive, will even have to raise such claims to avoid their responsibility, often personal responsibility.

Case study: Austria

Similar opportunities are available to retail businesses in Austria and, as shown by the practice of the Austrian retailer, are already being used. There, among others, the general order of the Minister of Health, which only allowed shops with an area of 400 m2 or less to be open as of 14 April (the so-called ‘zoning ban’), is contested. According to my colleague, Ivo Deskovic from TaylorWessing’s Vienna office , the larger entrepreneurs, including those who had more than 400 m2 of sales space, but who declared their willingness to reduce it to the allowed 400 m2, were omitted.

Furthermore, Austrian lawyers dispute the same order in so far as it allowed grocery shops to be opened after 16 March and non-food products to be sold there as well, whereas non-food shops had to remain closed. The unfortunate order on the Austrian entrepreneur is therefore being criticised  in a two-stage procedure, the first one being referred to the Austrian Constitutional Court, in which they challenge the general order of the Minister for Health. In the second stage, they will submit an action for compensation by the State for losses.

Austrian lawyers speak of a breach of the principle of equal treatment, of the right to conduct business and also facility of the right to unencumbered property. The provision of law, which came into force on 16 March, stating that the compensation scheme provided for in the Austrian Epidemics Act of 1950 would not apply to the coronavirus crisis, is also questioned.

Cost of Errors

As you can see, entrepreneurs have a weapon to fight for compensation, and the mistakes of those in power and legally flawed restrictions on doing business are a European ‘epidemic’.

Each state of emergency, natural disaster, pandemic or epidemic is an emergency, unexpected state and it is difficult to talk about the possibility to prepare for such state by Mr. Kowalski (or Hans Meier in Austria) or by the entrepreneur. Therefore, the system of each state under the rule of law provides for such situation both the possibility of limiting the rights and freedoms of a human being and a citizen (entrepreneur), as well as appropriate – related – compensation, whichmay be measured by appropriate laws and this is also the case in Poland, but only in the case of emergency state situations. If this state is not introduced, which can at least be qualified as an omission of state authorities, and rights and freedoms are nevertheless restricted, then compensation is all the more justified.

For no one is able to adequately prepare for such a situation, and this state, acting both in the sphere of its dominium as well as imperium, has or should have adequate means to combat the effects of such a state in various areas of social and economic life.

If you want us to help you solve a dispute in business, please contact us under:

tel.: +48 669 73 79 79e-mail: e.stobiecka@taylorwessing.com