Adrian Ciesielski

She did it again! By wielding the Foreign Subsidies Regulation / FSR, the European Commission just got the next pair of Chinese suppliers to drop out of a public bidding process. After Chinese rail behemoth CRRC Corporation Ltd. stepped away from a Bulgarian bid on March 26 (see my earlier post), today, Shanghai Electric Group Co., Ltd and LONGi Solar Europe / LONGi Green Energy called it quits on a Romanian photovoltaic park. This latest bid was valued at EUR 375m, and the Commission suspected both companies had received “significantly higher” subsidies through tax incentives and government grants. Remaining bids stem from European makers, as well as a duo of Turkish and Anglo-American suppliers.   From a pure enforcement perspective, the FSR sure is taking a running start: these two investigations had barely kicked off when the companies under investigation vacated their efforts.   But will the FSR become a success? The next Chinese hopefuls await in the wings (Chinese wind turbine contracts are being investigated, and Chinese security company NUCTECH COMPANY LIMITED was recently raided), but only time will tell – more and better preparation is already posing some serious challenges to giddy enforcement, and what if the first U.S. target comes out of the woodwork, viz., who will be the FSR’s Jack Welch, strutting to the EU Courts in Luxemburg to change the course of EU enforcement?   #competitionlaw #antitrust #fsr #subsidies #euregulations

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Pushbacks: what will change in the ECtHR jurisprudence on collective expulsions? Two months ago, the C.O.C.G. and Others v. Lithuania case (in which I represent the Applicants) was relinquished by the ECtHR to its Grand Chamber. Now, the case R.A. and Others v. Poland (in which Małgorzata Jaźwińska and Agata Bzdyń represent the Applicants) has also been relinquished to the Grand Chamber. Both cases concern pushbacks (informal removals) of asylum-seekers at the EU borders with Belarus. The double relinquishment is hardly a coincidence. As Maja Lysienia, PhD rightly points out below, the Chamber's jurisdiction can be relinquished when the case invokes a serious question affecting the ECHR's interpretation, or when there may be an inconsistency with the previous ECtHR's judgment. Thus, some change in the Court's jurisprudence - most probably concerning Article 4 of the Protocol no. 4 - may be expected soon. Fingers crossed that the change will be grounded only on the facts and the law, and that it won't be negatively influenced by political stances concerning the protection of EU external borders.

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Mark your calendars 🗓Wednesday, 22 May 2024;🕔5:00 – 6:30 PM🕡‼️ Sąd Arbitrażowy przy Krajowej Izbie Gospodarczej w Warszawie/Court of Arbitration at the PCC together with Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) German Arbitration Institute and Sąd Arbitrażowy przy Konfederacji Lewiatan/Lewiatan Court of Arbitration would like to invite you to participate in discussion on “Supplementary rules for third-party notices in arbitration – German remedy needed/fit for Polish arbitration too?” Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) German Arbitration Institute introduced on 15 March 2024 its supplementary rules for third-party notices (DIS-TPNR) to fill a gap in arbitration proceedings to allow to involve third parties to bind them in future proceedings to fact findings in an arbitration award. For example, a general contractor can use a third-party notice to avoid losing out to its employer in a legal dispute but not being able to take recourse against its subcontractor because the same issues are decided differently in the recourse proceedings. The need for such rules is therefore significant. The DIS-TPNR follow the third-party notice model known from the German Code of Civil Procedure (Sections 72 et seqq.) preventing contradictory decisions and promoting both procedural economy and legal consistency. In that sense in its core is a minimally invasive approach by limiting the third party's role to supporting the party issuing the third-party notice as an intervener. Together with our panelists we will explore how this solution tailored to the German procedural setting as a response to the arbitration users’ needs and expectations might answer some of the Polish procedural issues, if any.   Moderation: Aleksandra Orzeł-Jakubowska (White & Case LLP) Warsaw, Poland   Panelists: Christian Borris (Borris Hennecke Kneisel) Cologne, Germany Michał Kocur (Kocur & Partners) Warsaw, Poland Katarzyna Michałowska (Sołtysiński Kawecki & Szlęzak) Warsaw, Poland Christina Cathey Schuetz (Clifford Chance) London, UK 🏫Place: Sąd Arbitrażowy przy Krajowej Izbie Gospodarczej w Warszawie/Court of Arbitration at the PCC, ul. Trębacka 4; 00-074 Warszawa The panel discussion will take place in English with no simultaneous translation. 📧RSVP: sekretariat@sakig.pl. Space at the event is limited, so early registration is recommended.

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Genuinely valuable insights into the local regulatory framework for the renewables sector in our CEE/SEE region.

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#ForeignSubsidiesRegulation #FSR already proves to be efficient? 📣 Targeted companies in EU foreign-subsidy probes regarding Romanian public tenders to operate solar parks withdrew their offers https://lnkd.in/eMDFT3Xj 📚 Interesting to mention that : - the Commission found that the initial notifications within the meaning of Article 29(1) FSR were incomplete and requested additionnal information before initiating in-depth investigation - Indication of a distortion on the internal market resulted from (i) the absolute amount of the potential foreign subsidies that was significantly higher than the value of the contracts (ii) insufficient information that was provided concerning the specific nature, conditions, purpose or use of the potential foreign subsidies identified 🔔 It provides initial indications of the analysis that will be carried out by the European Commission and the points to watch out for when filing FSR forms BCLP

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Is it possible for investors in the Polish Investment Zone (PIZ) to obtain individual tax rulings providing them with legal comfort in their specific circumstances? Well, tax ruling authorities have consistently held so far that individual tax rulings are not available, for formal reasons, in those areas which were already addressed in the 2019 General Tax Ruling (of the Minister of Finance), and that despite the fact that the Supreme Administrative held that General Tax Ruling to be contrary to the law as applicable prior to 1 January 2022 and despite the fact that the laws underlying the General Tax Ruling were held (again, by the Supreme Administrative Court) to have importantly changed as from 1 January 2022. As a result, tax ruling authorities have typically dismissed requests for individual tax rulings on such crucial issues as the scope of the PIZ tax exemption in case of reinvestment, in fact leaving investors without any legal protection in that regard. Still, courts seem to be pushing back, rejecting that practice either due to the fact that the laws which the General Tax Ruling was deemed to interpret radically changed as from 1 January 2022 or due to the fact that even if the General Tax Ruling were still applicable, it would still be too abstract and vague to provide taxpayers with concrete replies to their individual dilemmas; therefore, in either case the General Tax Ruling should not preclude individual tax rulings requests. Such approach was taken, among others, by the Regional Administrative Court in Cracow in January 2023, followed also recently, in October 2023 and February 2024, by the Regional Administrative Court in Rzeszów. Importantly, the latter court tomorrow will have another opportunity to rule on that matter, thus hinting whether individual tax rulings on PIZ tax incentives, and more broadly in areas where a prior general tax ruling was issued, will gradually become more available, certainly to a great relief of investors.

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In Russian practice, I've heard many conversations about the enforceability of non-compete clauses. Some colleagues seem to think that English law would permit it without limits. It is not the case at all. I leave aside anti-trust regulation where it is only possible due to the 'ancillary restraints' doctrine which validates restraints (including merger agreements) that are objectively necessary to implement a legitimate objective and have neutral or positive effects on competition. Generally, non-compete clauses which are the form of restrictive covenant are enforceable only if (see: Harcus Sinclair LLP v Your Lawyers Ltd): ◦        protects the legitimate interests of the promisee ◦        goes no further than is reasonably necessary to protect those interests ◦        is commensurate with the benefits secured to the promisor under the contract Essentially, non-competent covenants can't be too broad or too long under English law, and especially in employment contracts where they are increasingly strict in their enforcement and the trend is worsening.   So don't expect too much 😉

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Our 10th edition WT RES Guide for 2024 is out, highlighting CEE/SEE's leading role in green energy, exploring 2030 EU targets, investment surges, and the importance of energy security. #wolftheiss #renewableenergy #energysecurity

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As expected, the EU adopted new measures on #Belarus mirroring several of the restrictive measures already in place against Russia, and thereby address the issue of circumvention stemming from the high degree of integration existing between the Russian and Belarusian economies. ➡ The Council is extending the export ban on dual-use/advanced goods and technologies, as well as introducing further export restrictions on goods which could contribute to the enhancement of Belarusian industrial capacities. Further restrictions are also introduced on exports to Belarus of maritime navigation goods and technologies, and luxury goods. Regarding imports, it will be prohibited to import directly or indirectly, purchase or transfer namely of gold and diamonds from Belarus, as well as helium, coal and mineral products including crude oil. The latter measure will be complemented by a new export ban on goods and technologies suitable for use in oil refining and the liquefaction of natural gas. ➡ The Council is broadening the prohibition on the transport of goods by road within the territory of the EU, by trailers and semi-trailers registered in Belarus, including when hauled by trucks registered outside Belarus. In order to minimise the risk of circumvention, EU operators which are owned for 25% or more by a Belarusian natural or legal person, should be prohibited from becoming a road transport undertaking or from transporting goods by road in the Union, including in transit. ➡ EU exporters insert in their future contract the so-called 'no-Belarus clause', through which they contractually prohibit the re-exportation to Belarus or re-exportation for use in Belarus of sensitive goods and technology, battlefield goods, firearms and ammunition. In order to minimise the risk of circumvention, the EU will prohibit the transit via the territory of Belarus of dual-use goods and technologies, goods and technologies which might contribute to Belarus’s military and technological enhancement or to the development of its defence and security sector, goods which could contribute to the enhancement of Belarusian industrial capacities, goods and technologies for use in the aviation or space industry, as well as arms exported from the EU. In addition, in order to help counter the re-exportation of battlefield goods found in Ukraine or critical to the development of Russian military systems, it was decided that EU operators selling such battlefield goods to third countries will need to implement due diligence mechanisms capable of identifying and assessing risks of re-exportation to Russia and mitigating them. Lastly, EU parent companies will be required to undertake their best efforts to ensure that their third-country subsidiaries do not take part in any activities resulting in an outcome that the sanctions seek to prevent. ⚠ A lot of work to come for companies not considering BY and Russia equally!!! Cercle K2 #trade #tradecompliance #dualuse #sanctions #customs

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Before the invasion, Ukraine’s generating capacity was 36 gigawatts (gw) of electricity. Russia targeted its electricity infrastructure in late 2022, and half of that capacity had already been lost—either occupied, destroyed or damaged—before the attacks renewed this year. Ukraine had managed to restore some capacity, and last winter managed to just about keep the lights on, restoring capacity almost to the 18gw then needed.

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The Polish Economic Institute (PIE) estimates that industrial production in Poland will grow in the coming months, as wage growth will stimulate consumption and demand for goods.   After eliminating the impact of seasonal factors, sold industrial production rose by 0.7% year-on-year in May.   The Institute draws attention to the fact that cost pressures remain low, as industrial production prices fell by 7.0% year-on-year in May, similar to pre-war levels.   #penteris #poland #economics #law #industrialproduction #investment  

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Types of companies in Poland: 📌Limited Liability Company A limited liability company is a capital commercial company with a legal personality. Its founders may be natural persons or legal persons, regardless of citizenship and place of residence. To establish a limited liability company capital of at least PLN 5,000 is required. 📌Joint-Stock Company A type of capital commercial company, the basic feature of which is the issue of shares. They represent partial company ownership and can be bought and sold by investors in public or private markets. Shareholders have limited liability, which means that financial risk is limited to the value of their investment. Shareholders are not personally liable for the company's debts or obligations. Shares of a joint-stock company can be easily transferred, which makes them an attractive investment instrument. 📌Limited Partnership A limited partnership is a commercial partnership that has legal capacity and the capacity to perform legal acts. A limited partnership may be established by at least two partners, one of whom is a limited partner with limited liability for the partnership's obligations, and the other is a general partner who is liable for the limited partnership's obligations without limitations, i.e. with all his or her assets. 📌 General Partnership A general partnership is a commercial partnership that runs an enterprise under its own business name (company name). A general partnership does not have legal personality, but it has legal capacity. The advantages of a general partnership include lower operating costs than more complex forms of business (e.g. limited liability companies), the possibility of conducting simple accounting, provided that the revenues generated by the general partnership do not exceed EUR 2 million, and the possibility of covering liabilities with the company's assets. 📌Limited Joint-Stock Partnership A limited joint-stock partnership is a commercial partnership. It does not have legal personality, but it has legal capacity. There are at least two partners in a limited joint-stock partnership: a general partner and a shareholder. The general partner has unlimited liability for the obligations of the limited joint-stock partnership. General partners and shareholders may be natural persons, legal persons, organizational units without legal personality but with legal capacity. The minimum share capital of a limited joint-stock partnership is PLN 50,000. 📌Professional Partnership A partnership is a commercial partnership that can be established by at least two natural persons authorized to practice liberal professions. A partnership does not have legal personality, but it has legal capacity, i.e. it can acquire rights and incur liabilities on its own behalf, for example, employ employees, purchase real estate, or be a party to a loan agreement. No share capital is required to establish a company. #business #polishbusiness #enrepreneurship

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Two related stories dealing with Raiffeisen Bank's activities in Russia, in particular in relation to the recent collapse of the Strabag\Deripaska deal. The first, a Reuters exclusive, notes that on May 6, Deputy Secretary of the Treasury Wally Adeyemo wrote to Raiffeisen detailing concerns about the Strabag deal and more widely with Raiffeisen's continued activities in Russia. A few days after the letter, the Strabag deal, involving Raiffeisen collapsed. It is not unreasonable to suggest a link between the letter and the collapse. Reuters notes that the letter also expressed US concerns at Raiffeisen's wider activities in Russia. The second, in the FT, relates to new US sanctions, where Treasury stated “The United States is today designating one Russian individual and three Russia-based companies involved in an attempted sanctions evasion scheme connected to Russian oligarch Oleg Deripaska.” Raiffeisen was not mentioned, although it was involved in the Strabag deal. It is now clear that the US has signalled its disapproval to Raiffeisen, and according to Reuters "Adeyemo warned that RBI's actions increased the risk of Treasury needing to take action to restrict its access to the U.S. financial system given concerns that its behaviour put U.S. national security at risk." https://lnkd.in/eSRcibrV #vbb #ussanctions #uksanctions #eusanctions #strabag #Raiffeisen #olegderipaska https://lnkd.in/eju4XuRZ

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🌟 SOME FIGURES ON STATE AID IN SLOVAKIA IN 2023🌟 The Antimonopoly Office of the Slovak Republic (AMO) is known as the institution that imposes heavy fines for cartels, abuse of dominant position or anti-competitive behaviour of public authorities. This activity is also the one that receives the most media coverage. 📢 In addition to these activities, the AMO is also the coordinator of state aid in Slovakia. In other words, it acts as a "bridge" between Slovak stakeholders and the European Commission. 🌉 One of the AMO's tasks is to prepare an annual report on state aid in Slovakia. It is this report for 2023 that has opened for comments. What interesting things can we learn from it? 📄 1️⃣ Level of aid granted: In 2023, state aid in Slovakia amounted to EUR 953.65 million. Of this amount, 25.8% was granted to support the economy following Russia's aggression against Ukraine and 0.9% was still related to the emergency caused by the COVID-19 pandemic. The remaining 73.3% was allocated to various areas and sectors. 💰 2️⃣ Year-on-year comparison: The comparison with 2022 shows that the total amount of State aid granted decreased by 16.78%. This decrease is mainly due to the reduction of aid related to the COVID-19 pandemic (by EUR 524.14 million). It is to be hoped that aid in this area will reach zero by 2024, which would mark the "financial" end of the pandemic. At the same time, aid to support the economy following Russia's aggression against Ukraine and to protect the environment have increased the most. 🌍 3️⃣ The future: With regard to the plans of individual state aid providers, 2024 should see the start of a more significant absorption of EU funds from the 2021-2027 programming period, for which the public administration has prepared the Slovakia 2021-2027 Programme. Several ministries, such as the Ministry of Economy, Labour, Environment and Health, are expecting to receive aid from this plan. 🔜 The report will be open for comments until 27 May 2024. 💬📊📊 It will be interesting to see how the state aid landscape evolves in 2024. Do you think the total amount of aid will decrease or increase❓ #StateAid #PMÚ #HAVELPARTNERS

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How Are NGOs in Poland Doing?🤔 A fresh perspective on the state of some NGOs can be found in the latest report by Badania Stowarzyszenia Klon/Jawor, titled "When Crisis Work Becomes Everyday Reality: Local Social Organizations Supporting Refugees in Poland." Main Findings 📊 Resource-Rich Refugee Organizations: Organizations working for refugees statistically have more financial and human resources than the average Polish NGO, with 83% employing paid staff! 💼💰 Established Pre-War Entities: Few NGOs were established due to the war in Ukraine. Many existed before 2022 and have since specialized in refugee support. 🌐🏛️ Integration and Information: Common activities include integrating refugees with Polish society and providing information, continuously adapting to refugee needs. 🤝🗣️ Short-Term Resource Boost: Post-invasion, organizations saw a short-term increase in financial and human resources. Changes are expected in 2024 as they may need to let go of specialized staff to maintain financial stability. 📈📉 Expanded Networks: A lasting change for NGOs has been the expansion of their networks among Polish and international NGOs. 🌍🔗 Mission Reformation: About 37% of surveyed NGOs had to reformulate their missions or goals post-2022. 🛠️🚀 International Funding: International organizations and foreign NGOs have been key funding sources. Their withdrawal from Poland will have negative consequences. 🌐💸 Financial Instability: 75% of surveyed entities feel financially unstable, with more predicting that this problem will worsen. ⚠️📉 Burnout Concerns: Growing numbers of both employees and volunteers are experiencing fatigue and burnout. 🥵💤 Need for Training: Every third surveyed organization declared a need for various types of training and workshops, especially in management and fundraising. 📚🛠️ The report outlines the challenges faced by Polish NGOs working with refugees. They face numerous challenges in the coming years. Personally, I believe in the power of collaboration. Joining forces and leveraging resources of larger organizations, along with international cooperation, can have a significant positive impact. We must not forget that the past few years have seen the emergence of a large group of specialists. NGOs can become not only organizations supporting people in tough situations but also equal partners for businesses, where talents create talents. 🌟🤝 #NGOs #Poland #RefugeeSupport #Collaboration #Sustainability #KlonJaworReport

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🇵🇱📢 #Poland: Ministry of Finance Opens Consultation on VAT Act Amendment for Small Businesses 💼💡 On June 25, the Polish Ministry of Finance launched a consultation on a draft bill to amend the VAT Act, aligning it with EU Directive 2020/285. This draft bill includes several key measures: 📈 Small businesses established in other EU countries can opt for a VAT exemption if their annual EU turnover is below 100,000 euros (US$106,788). 📉 Small Polish businesses can choose a VAT exemption for domestic turnover under 200,000 Polish zloty (US$49,512). 🌍 Rules will be set for determining the place of supply for certain services, following Directive 2022/542. 📋 Polish businesses can apply for VAT exemptions in other EU countries through new procedures. 📧 Taxpayers with a registered office in Poland must submit applications via the e-Tax Office for exemptions in another member state. 🚨 Penalties will be imposed for noncompliance. 🗓️ The law is anticipated to take effect on January 1, 2025. Comments on the draft bill are due by July 16. Stay tuned with Taxera Technologies for more updates as we move towards a fully digital tax administration system! 🌐📈 #VAT #EUCompliance #PolandFinance #taxcompliance

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Can you request a national tax ruling authority to assess and declare – in a tax ruling procedure – whether a particular provision of domestic tax law is consistent with EU law and, if it is not, to admit that this provision of domestic tax law is inapplicable? Admittedly the Polish tax ruling procedure does not allow for any fact-finding, but as far as applicability and interpretation of national tax law is concerned, the scope of the tax ruling procedure should be just as any other legal process – it should fully accommodate EU law and, when needed, derive all necessary consequences from its primacy and direct effect. Some tax authorities challenged that point, which led me to take it on as a topic for presentation in the currently ongoing Tax Conference in Cracow under the title "The impact of EU law on lawmaking and application of tax law in Poland” organized by the Department of Financial Law of the Jagiellonian University on the 20th anniversary of Polish accession to EU. Also, thank you dr Agnieszka Franczak for the invitation to speak and professor Wojeciech Morawski for enjoyable exchanges on the tax and state aid issues under ENGIE case :)

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