Legal Reform in Poland

While Poland is among the most advanced transition countries there remain challenges. Poland continues to make reasonably good progress towards developing a legal system comparable to international standards. The alignment of Polish law with that of the EU has been accomplished in many areas including capital movements, company law, competition law, free movement of goods and free movement of workers, while jurisprudence is developing around these legal changes, so there is still room for development. Notable recent advances have been reforms to concession laws and a related specific law dealing with public-private partnerships. An adequate legal and institutional framework for sustainable energy is also in place and reforms aimed at promoting energy efficiency have come into force in 2013. In this context, the legislation on energy efficiency and renewable energy will play an important role in the Bank’s plans to promote a low carbon economy in Poland.

Access to Finance

Applicable legislation includes: the Law on Registered Pledge and the Pledge Registry of 1996, the Land and Mortgage Registers Act of 1982, the Civil Code Act of 23 April 1964 and the Banking Law Act of 29 August 1997.
In Poland most types of assets can be used as collateral. Real estate can be charged by a mortgage, ships by a maritime mortgage, and movable assets and rights by a non-possessory registered pledge, a possessory civil law pledge, a security transfer of ownership, or a security assignment of rights. However, the availability of options does not mean that there are no areas for improvement or better to say fine tuning of the legal system as it still does not always adequately support commercial activities.
 
(Assessment of Secured Transactions 2013 – country report)
 
EBRD Legal Reform Projects
 
At the request of the National Bank of Poland (NBP), the EBRD undertook an in-depth study of how the legal framework supports the development of secured credit in Poland. A report was launched in early 2006 presenting a set of recommendations. The study took place in conjunction with a World Bank project on “Reducing Legal Barriers to Contract Enforcement”.
 
In 2014 the EBRD conducted an assessment on secured transactions which examined the availability of collateralising different types of assets regardless of the underlying legal instruments used to achieve the establishment of secured creditor’s rights. In addition to the classic security interests (pledges and mortgages the assessment also covered usual types of quasi security, such as sale and lease back transactions. The assessment also covered related issues such as enforcement and syndicated lending. The links below take you to the assessment results for Poland.
 
 
 

Capital Markets

The Polish Financial Supervisory Authority (the “PFSA”) is the main regulatory body supervising both primary and secondary debt capital markets activity in Poland. The PFSA was established in 2006 and replaced two regulatory bodies overseeing the capital markets and insurance undertakings and pension funds. In addition, the Ministry of Finance (the "MoF") has certain jurisdiction relating to the debt capital markets. For example, the MoF has the powers to issue decrees with respect to the operation of capital markets. The Polish capital market is a sector that EBRD wants to support, in particular from an investor’s perspective. It has invested in bonds issued by Polish banks in 2011 and 2012. The same year, EBRD has invested in asset backed securities issued by Getin Noble, a Tier 2 Polish bank. There is on-going reform but with a very limited progress. Last year, the PFSA established three working groups focusing on the development of capital markets: a working group on mortgage bonds, aworking group on asset backed securities and a working group on other capital market matters. The Polish Banking Association is involved in the work of these groups and the work of such groups remains on-going and inconclusive. The EBRDis engaged in discussions and has suggested recommendations for capital market development.
 
EBRD Legal Reform Projects
 
The EBRD advised the Ministry of Finance and Treasury on the legal and financial implications of a proposal on securitisation of pension fund receivables.
 
 

Contract Enforcement and Judicial Capacity

EU membership has been a positive factor in enhancing efficiency of the judicial system. However, problems still exist. According to the EBRD / World Bank Business Environment and Enterprise Performance Survey, the slow pace of court proceedings is considered to be the major problem, with only 12% of Polish respondents considering that the court system is sufficiently fast. Enforceability of court judgments is another significant problem, with only a third of business respondents believing court judgments can be effectively enforced. Concerns also persist about corruption and lack of impartiality. Overall, two thirds of businesses surveyed believed courts posed an obstacle to doing business.
 
 

Corporate Governance

The 2007 EBRD Corporate Governance Sector Assessment, in which the quality of corporate governance legislation in force in November 2007 was assessed, found Poland to be in “medium compliance” with the OECD Principles of Corporate Governance, showing some shortcomings especially in the legislation detailing the rights of shareholders and the responsibilities of the board (see Charts 8 and 9). However, the amendment to the CPCC, transposing the EU Directive on the Exercise of Certain Rights of Shareholders in Listed Companies, addressed some of the weaknesses thereby improving the framework.
 
(2013 Assessment of Corporate Governance of Companies – country report)
 

 

 

Debt Restructuring and Bankruptcy

The Law on Bankruptcy and Restructuring adopted on 28 February 2003 (as amended, the LBR) contains the general legal framework relating to the insolvency of business, including individual entrepreneurs.
In addition to LBR, provisions relating to insolvency office holders (IOHs) are to be found in the Act on Licensing of Court Receivers adopted on 15 June 2007 (as amended).
Based on the results of the pilot assessment, a partially developed legal framework appears to exist for the IOH profession in Poland, which prima facie, displays a few strengths. Nevertheless, such framework would benefit from further improvements to address certain important areas of weaknesses and thus improve IOH capacity and performance.
 
EBRD Legal Reform Projects
 
The EBRD, at the request of the Ministry of Justice, designed a legal technical assistance project to ensure that Poland’s new Bankruptcy Law meets international standards, including protection of investor/creditor interests. The EBRD also helped to facilitate understanding of the new Bankruptcy Law through training and
education programmes.
 
 

Electronic Communications

In common with most EU peers, among Poland’s challenges into the future is keeping pace with the evolving EU framework and ensuring its effective implementation as part of the EU Digital Agenda. Of particular importance in this respect are the regulatory enablers surrounding Poland’s initiatives on broadband, including the 2008 government “Strategy for the Development of the Information Society in Poland until 2013” and the long-term strategy "Poland 2030. The EBRD’s recent Assessment has found the framework for telecommunications to be largely in line with international standards, with some deficiencies though in the legal framework, fees and taxation as well as market conditions for wireless services
 
EBRD Legal Reform Projects
 
The EBRD assisted the Ministry of Posts and Telecommunications in harmonising their telecommunications regulatory framework to EU requirements, and in establishing an independent regulatory authority with appropriate instruments and mechanisms to implement the new law. The EBRD provided extensive comments
on the new draft telecommunications law prepared by the Polish authorities as well as on the secondary legislation. The EBRD also organised a series of workshops on cost-accounting methods suitable for telecommunications operators, interconnect charges and tariff setting.
 
 

Energy and Resource Efficiency 

Poland’s legislation in the energy efficiency and renewable energy sector is based on the Energy Policy of Poland adopted in 2009, through until 2030 (’the Policy’), Energy Law (1997) (as amended, most recently in 2010) and the Energy Efficiency Law (2011).
 
 

Energy Regulation

Poland performs reasonably well overall and at expected levels. The recent (2010) EBRD energy law reform dimensions assessment project has shown that regulatory independence, transparency and tariff structure are the key strengths of the country’s electricity framework, while public service obligations and market framework are its key weaknesses.
 
Poland performs reasonably well overall with respect to its gas market. The gas market was fully liberalised as of 1 July 2007. The recent EBRD energy law reform dimensions assessment project has shown that regulatory independence, transparency and network access are the key strengths of the country’s gas framework, while private sector participation and market framework are its key weaknesses.
 

 

 

PPPs/Concessions

An earlier PPP Law of 2005 has been widely criticised and was replaced by the Act on Public-Private Partnership of 19 December 2008 (the “PPP Law”). One of the objectives of the new act was to improve the public-private partnership system in Poland, in particular by harmonising with other laws which may apply in the scope of concessions/PPP. Concessions are also regulated by the new Act on Concession for Works or Services of 9 January 2009 (the “Concession Law”). In addition there exist sector specific laws covering PPP and Concessions, e.g. the Toll Motorway and Road Fund Law and the EURO 2012 Law.
According to a recent EBRD Assessment of the PPP laws in its countries of operations the Polish laws are in “medium compliance with the best international standards”, however, missing just three percentage points to be in ‘high compliance’ (see Chart 1). Similarly the system was ranked as “medium effectiveness” for their practice.
 
 
 

Public Procurement