The entry into force of the Polish Act on the National Debtors Register on December 1, 2021, constitutes an extremely important modification of the legal order in the area of restructuring and bankruptcy in Poland.
The main assumption behind this amendment was to adapt the solutions adopted in the Act on amending the Act – Bankruptcy Law and certain other acts (Journal of Laws of 2019, item 1802) to the solutions proposed in the National Debtors Register. This adaptation will consist in enabling the conduct of bankruptcy proceedings (or their elements) by means of an ICT system.
The newly introduced system in Poland within the insolvency law will allow the construction and processing of case files and will become a tool for filing letters and documents in the course of bankruptcy and restructuring proceedings. The intention of the legislator was to accelerate and streamline the conduct of proceedings, therefore the filing of letters and documents will be done exclusively with the use of the ICT system. This is necessary in order to produce the legal effects specified in the abovementioned act. Importantly, there are exceptions to the above rule – pleadings and documents containing classified information within the meaning of the Act of 5 August 2010 on the protection of classified information (Journal of Laws of 2019, item 742), as well as bids submitted during a tender or auction will be submitted without the use of the ICT system.
Pleadings and documents must be affixed with a qualified electronic signature, trusted signature, personal signature or authenticated in a manner that makes it possible to confirm the origin and integrity of verified data in electronic form.
Attachments to letters filed via the ICT system shall be attached in electronic form, while in the case of documents drawn up in paper form, electronically certified copies of documents and electronic copies of documents shall be attached to the letter.
Also the decisions issued in the course of the proceedings will be of electronic nature. They will be recorded only in the ICT system and will bear a qualified electronic signature. Access to the files of a given case by a party to the proceedings will be possible only via the system.
Due to its properties, the register will be an extremely valuable tool for participants in business transactions. Accessible via the Internet, the open and free NDR will make it possible to obtain information, essential from the point of view of a contracting party, about Polish restructuring proceedings conducted against an entrepreneur, about a declaration of bankruptcy – also consumer bankruptcy. It will contain a wide range of data on pending proceedings: the case number, the person of the judge-commissioner, and even information on whether the debtor has filed an application for restructuring, declaration of bankruptcy or initiation of proceedings for approval of an arrangement with creditors. As a result, the transparency of the proceedings will increase.
Creditors have gained new rights in the form of filing objections to the trustee’s accounting statements or filing objections against the approved arrangement, which has strengthened their position in the proceedings.
After the introduced amendment, a potential collision of proceedings resulting from a bankruptcy petition filed during open restructuring proceedings has been resolved. It has been specified that rejection of the motion constitutes a solution.
The decision on security measures in proceedings to secure claims will no longer be appealable by horizontal complaint, but will be recognized by the court of second instance. Moreover, the norms covering the filing of complaints in general have been clarified, which has been achieved by clearly indicating when a complaint to another panel of the restructuring court or a court of second instance takes place.
The duty of an administrative receiver, as defined in art. 156 sec. 4 of the Polish Bankruptcy Law, applies to an interim court supervisor, which means that together with the first action before a court or judge-commissioner at the latest, he or she files a document confirming the conclusion of a civil liability insurance contract for damages caused in connection with the performance of his or her function. The insurance costs shall not constitute the costs of the bankruptcy proceedings and shall not be reimbursed from the bankruptcy estate.
The changes also concern the form of the deposit. The previous regulations regulating the prepared liquidation provided only for a deposit in cash. There has been an extension of the catalog of forms of security within the bail bond. Currently, it is possible to provide a deposit in cash, bank or cooperative savings and loan guarantee, but a bank guarantee will always be a cash guarantee; bank or cooperative savings and loan guarantee.
A novelty is the possibility of self-control of a previously issued decision as a result of a complaint filed against the decision of the judge-commissioner, whose role is performed by a court referendary. A self-controlled decision may be appealed against under general principles, but if the decision is appealed against, it will not be possible for the court referee to make a new decision.
The Act also introduces a number of organizational changes.
Changes in the Polish Restructuring Law
Transparency of the restructuring proceedings and preservation of coherence of provisions regulating issues related to broadly defined bankruptcy cases were the objectives of the proposed changes under the Polish law. Similarly to the changes in the Polish Bankruptcy Law, modification of the restructuring procedure is proposed in the scope of complaints against the decisions of the restructuring court. The remaining changes are of organizational nature. They result from the technical solutions used for the construction of the Polish National Register of Debtors and the ICT system handling court proceedings.
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