Legislate by the European Parliament and the EU Council the General Data Protection Act is designed to unify and harmonize the rules on this issue in the Member States. The implementation is scheduled to take place by May 25, 2018. It is therefore worth noting the new provisions, obligations and sanctions that are associated with the adoption of the new law. Paweł Dyrduł, a lawyer from KG Legal Kiełtyka Gładkowski Sp.p with its registered office in Krakow, analyzes the above issues.

What is the GDPA?

GDPA is an abbreviation of the General Data Protection Act. This is a legal act adopted by the EU legislature, which, as the name implies, is aimed at regulating the issue of broadly defined personal data. The official text of the Regulation was published in the Official Journal of the European Union on 4 May 2016. However, the entry into force of the provisions contained in the Regulation was adopted on 25 May 2018. The Member States of the European Union are obliged to implement the provisions contained in the Regulation by 6 May 2018. The implementation of the provisions of the EU legal act will generally be followed by the adoption of relevant national Legal acts.

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It is the debtor’s responsibility to regulate obligations. Generally, it can be stated that the obligations are regulated every day and at any time. The universality of this process creates the need to draw attention to the rights and obligations of the parties. Paweł Dyrduł, a lawyer from KG Legal Kiełtyka Gładkowski Sp.p with its registered office in Krakow, discusses the principle of balancing the debtor’s payments and the exceptions provided for by Polish law.

Principle of the debetor’s will

The issue of balancing debtor’s contributions in Polish law does not appear to be a major problem. The legislator, by constructing the provisions of the Civil Code, has adopted the principle that the debtor has the right to indicate what obligation he pays the payment. However, this entitlement is only due to him if the conditions laid down in art. 451 Civil Code premises. The first is to own several debts of the same kind, and the second is that payment have to repay the same creditor. The multiplicity of debts is to be understood as the obligation of the debtor in a single obligation relationship. The obligations owed by the debtor should have the characteristics that mark them as separate obligations, so their regulation in the law should be equated with the fulfillment of various benefits. When these conditions are met, the debtor will have the right to indicate which debt he repayes. The debtor can communicate to the creditor his will in any form. As a rule, the creditor has no right to oppose the will of the debtor, cannot refuse to fulfill his will. However, when it is allowed to fall into a delay.

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Purchasing an organized part of an enterprise is a capital-intensive venture. Hence the buyer must take a number of steps to assess the profitability of such an investment. He must also be aware of the possibility of taking responsibility for the obligations. Pawel Dyrduł, lawyer from law office KG Legal Kiełtyka Gładkowski Sp.p with its registered office in Krakow, discusses the issue of disposal and purchasing an organized part of the company.

The organized part of the enterprise

To define, find out what the organized part of the business should be starting with the general definition of the company, which is contained in Article 55¹ of the Civil Code. An enterprise is an organized set of intangible and tangible components designed to run a business. These compositions include in particular: the name of the company, real estate and movables, acquired rights, claims, cash, licenses, licenses, permits, patents, business secrets, accounting records, documents and other components. The above definition (rule) explicitly states that an enterprise is intended to run a business.

On the basis of the definition of the company, the conclusions on the definition of its organized part can be drawn. Simply put, an organized part of the enterprise will be its separated part, which will holds own set of intangible and tangible components.

A similar thinking had the legislator constructing the provisions of the Personal Income Tax Act and the Law on Value Added Tax. In both of these laws (Article 5a (4) of the PIT Act, Article 27 (27e) of the VAT Law), there are very similar definitions of an organized part of an enterprise. An organized part of an enterprise is an organizationally and financially independent group of tangible and intangible assets, including liabilities, that are intended to carry out specific economic tasks, and which at the same time could be an independent undertaking performing these tasks independently. It is worth noting that this organized part can be a de facto separate enterprise.

The organized part of an enterprise cannot in principle be a future thing. When it comes to it, when the buyer decides to buy, it must already exist in the structure of the company, i.e. it must be separated.

Purchasing of an organized part of an enterprise also has an effect on its affiliation.

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Occurrence of standard agreement in business transactions is already a common practice. Companies in most contracts concluded with their contractors use the previously developed standard agreement. Pawel Dyrduł, lawyer from law office KG Legal Kiełtyka Gładkowski Sp.p with its registered office in Krakow, discusses the issue of using this “instrument” in business transactions.

A standard agreement

There is no legal definition of a standard agreement in the Polish legal system. However, on the basis of legislation and economic practice, one can attempt to define this concept. The standard agreement will be understood as contranct previously made by the contractor, which will, in principle, be identical for each client. This a standard agreement can thus be repeatedly used by the trader to conclude an agreement with a contractor. A standard agreement refers to a contract whose terms are to remain constant. Changes which only be made are the contractor’s data, the date of conclusion of the contract. Currently, the practice of using a standard agreement in business is very common. For example, banks, insurance companies, telecom operators, electricity providers, etc. are developing and using a standard agreements.

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Starting from 9 July 2018 – shorter limitation period of claims in Poland – only 6 years, instead of 10 years.

Deadlines

The Polish Civil Code has undergone significant amendments. The most important change as a result of the amendments is the change in the statutory limitation periods of claims. The current ten-year limitation period for property (monetary) claims will be 6 years. However, the limitation periods for claims for periodic and business-related claims will still be 3 years, hence it does not change.

Changes for consumers

The amendment of the Civil Code introduces a different position of the entrepreneur and the consumer, defining the second as a weaker party of legal relations and establishing separate regulations for limitation of claims in respect of consumers, thus improving their legal situation. The new law will no longer allow an entrepreneur to satisfy the claims against the consumer after the expiration of the limitation period. However, there has been added the possibility of the court not to take into account the expiry of the limitation period against the consumer, if the principle of fairness requires it. In such case, the court will have to consider: the length of the limitation period, the time from the expiration of the limitation period to the date the claim was made and the nature of the circumstances that caused the claimant not to make the claim.

The modified legal provisions also include the regulation concerning the sale of second-hand goods to a consumer. The new regulations set forth that the limitation period for claims under warranty cannot end before the lapse of two years from the date of delivery of the item to the buyer.

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