Kategoria: Services

Employee Capital Plans

On 1 January 2019, there entered into force the Employee Capital Plans (ECP) Act of 4 October 2018, whose aim – according to the legislator – is a change of the current pension scheme. The ECP Act assumes an establishment of a private voluntary pension savings scheme, whose participants will be the State, employers and employees (irrespective of the form of employment).

ECP main assumptions:

  1. ECPs, optional for employees and obligatory for employers, constitute a long term savings scheme.
  2. Payments made towards ECPs will be financed by the employer and the employee, out of their respective own funds.
  3. Employees and ECP participants may make additional payments.
  4. Grant of the ownership title to funds and their exclusion from enforcement (as a general rule).
  5. Funds gathered as part of ECPs will be paid upon attaining certain age – the same for women and men.
  6. The ECP Act assumes the conclusion of two agreements:
    • agreement on ECP management (between the employer and the financial institution, i.e. an investment fund managed by an investment funds company, pension fund managed by the Pension Fund Society, employee pension society or an insurance company) and
    • agreement on ECP maintenance (between the employee and the financial institution).
  7. Employers will join ECPs successively, starting from July 2019 to January 2021.

ECP assistance by Law Firm D.Dobkowski sp.k.

  1. support in drafting internal regulations on ECP introduction,
  2. support in selection of ECP managing financial institution,
  3. support in the conclusion of ECP management and maintenance agreements with a financial institution (including a review of compliance with conditions indicated at ECP portal and a review of agreements with a financial institution),
  4. legal assistance in ECP implementation in the scope of labour law,
  5. representing the employer in talks with the community representation,
  6. legal assistance in ensuring consistency of employees’ data transfer outside the employment establishment with the personal data protection requirements,
  7. support in the fulfilment of the employer’s information obligations towards ECP participants and the financial institution, with which the employer concluded ECP management agreement,
  8. consultations on exemptions from the ECP establishment obligation.

Succession and wealth management

In our practice we notice an increasing number of entrepreneurs, who have managed to build successfully operating companies and to accumulate significant personal wealth. Naturally, they wish to benefit from the fruit of their work, whilst still running the business. Responding to this need, we propose two categories of service:

Succession advisory services, covering e.g.:

  • provision of advice and preparation of documentation related to the transfer of the company within the family
  • provision of advice and preparation of documentation related to securing the position of the senior generation
  • provision of advice and preparation of documention related to employment of external managers

Wealth management, covering e.g.:

  • formation of personal wealth managing holdings and provision of legal services to them
  • provision of advice on acquisition of works of art and other art market aspects (export, museum deposit, rental)
  • establishing and providing legal services to foundations and other nonprofit organizations

Confirmation of fulfilment of employer’s statutory responsibilities under labour law

Anti-discrimination policy, covering prevention of mobbing and unequal treatment, including harassment

In recent months, numerous instances of workplace mobbing and discrimination have been reported to the public. It is the employers, on whom an obligation to ensure that such acts do not occur at the workplace was imposed. In response to the employers’ needs, the Law Firm D. Dobkowski sp.k. established a team of experts possessing knowledge and experience enabling them to verify and confirm that the employer fulfilled the above-mentioned and other obligations under the labour law.

We offer legal services in the following areas:

  • verification of observance of anti-discrimination laws, including provisions on prevention of mobbing and unequal treatment, including harassment,
  • analysis of observance of provisions on working time, payment of remuneration and other employee benefits,
  • verification of implementation of the required labour law regulations, including work regulations, remuneration rules, employee benefit fund regulations,
  • analysing of correctness concerning employee documentation preparation and storage.

Anti-discrimination policy covers in particular the following actions on the part of the employer:

  • respecting dignity and other personal rights of employees,
  • neutralising events that have already occurred,
  • taking preventative measures,
  • expanding employees awareness,
  • repairing damage caused by mobbing, harassment, unequal treatment.

We may help you by:

  • clarifying the manner of fulfilment of your anti-discrimination responsibilities,
  • providing assistance in ensuring that the implemented procedures and practices are consistent with the provisions of law,
  • taking over the functions connected with the acceptance of notifications on irregularities and reporting them to the employer,
  • conducting clarification proceedings with reference to the alleged or suspected mobbing or unequal treatment, including harassment,
  • providing legal assistance in civil law cases for compensation,
  • providing legal assistance in criminal law cases for mobbing or harassment,
  • keeping you up-to-date with amendments to the labour law, in particular, anti-discrimination provisions.

Flow of information in capital groups

Our experience shows that holding companies very often receive, in various form, information from their subsidiaries. Such information is transferred for numerous purposes, including management (also as part of services subject to transfer pricing) or stock exchange reporting, usually without due analysis whether or not such a transfer infringes upon absolutely binding provisions of law or violates rights of the subsidiaries’ (minority) shareholders or contractors.

Moreover, such a situation generates conflict of interest for the subsidiary’s management board that is required on the one hand to keep secret particulars of the company it represents, and on the other hand – to transfer vital information to its parent company.

In such circumstances, the following risks occur:

  • reluctance of members of the subsidiaries’ management boards to immediately provide the holding company with all vital information about the subsidiary (which is of importance particularly for holding companies that are required to report information significant for the stock exchange),
  • exposure to an allegation that members of the subsidiaries’ management boards are made to engage in illegal actions,
  • exposure to claims from the subsidiaries’ contractors in the event of disclosure of information about such contractors to a third party, which in relation to them is the holding company,
  • exposure to claims from the subsidiaries’ (minority) shareholders (if any).

Product Regulatory Compliance Verification

Increasing pace of technological advancement along with a constant development of solutions and products available on the market instigate constant changes within legal environment. Changes to the products manufacturing, distribution and usage require relevant amendment of the rules of introducing such products onto the market and their use. Products manufacturers, distributors and even users themselves are imposed numerous legal obligations, including administrative ones, whose non-performance may bring about serious consequences, including financial penalties.

What child safety symbols and warning labels should be placed on a toy packaging? What is a measuring container bottle? Where in the shop there should be displayed information about collecting waste electrical and electronic equipment? In what way to recognize a recycling fee for plastic bags in the books of account? What products need to be reported to a competent inspector before their sale? These are just a few dilemmas that entrepreneurs must solve every day.

KPMG support

  • Product classification in accordance with the provisions of law
  • Analysis of the current legal requirements set for the products placed on the market
  • Legal verification on the launched products’ compliance with the current legal requirements
  • Advisory services covering fulfilment of administrative obligations related to the distribution of certain products
  • Issuance of a report upon the completion of services, such report indicating a required corrective actions, if any
  • Legal assistance in the preparation of relevant notifications, announcements, motions, reports and other documents for competent authorities / institutions
  • Representing producers and distributors in proceedings before regulatory authorities and the Office for the Protection of Competition and Consumers.

Benefits

  • Regulatory compliance – ensuring that the distributed product is consistent with the current legal requirements
  • Sanction risk reduction – decreasing the risk of potential administrative and penal sanctions threatening for the failure to perform administrative duties
  • Reduction of the risk of other costs – decreasing the risk of incurring other costs (e.g. contractual penalties, damages, reputational costs)
  • Exercise of due diligence – exercising by a firm / management board members due diligence with regard to the fulfilment of administrative duties
  • Reliability increase – improving the company’s reliability by obtaining a service completion report

Services

Within a wide spectrum of our specializations, we offer the Clients our assistance in dealing with recurrent legal issues or implementing specific regulatory obligations. This way of providing legal advice continues to be very successful on the market owing to its substantive efficiency and price elasticity.

In view of a universal nature of these services, their beneficiaries may be entities from all market sectors, regardless of the volume of their business.

Dividend-Paying Capacity Confirmation

Payments to companies’ shareholders may be made on the following legal grounds:

  • dividend, including an advance payment towards a dividend in the course of a financial year;
  • fee for the shares redeemed;
  • liquidation amount;
  • reimbursement of additional payments;
  • reimbursement of loans granted by shareholders.

All the above-mentioned payments may be made only and exclusively in accordance with the terms and conditions specified in the Commercial Companies Code and the Accounting Act. Liable for the correctness of settlements in that respect are members of the management board that, along with the shareholders, guarantee it with their personal property. Claims against management board members may be made by the company or – in the event of insolvency – also creditors or an official receiver.

In practice, there occur situations, when the dividend paying capacity must be established and confirmed by an independent entity. Such a need arises when:

  • there is a difference of opinions within the management board, or between the management board and the shareholders, concerning the dividend-paying capacity, its legal admissibility, amount and influence on the working capital required;
  • stakeholders (shareholders or creditors) require an independent entity’s confirmation of existence of the dividend-paying capacity and indication when a dividend is claimable from a company;
  • there exist doubts whether historically established capitals may serve as payment sources;
  • the management board needs a formal confirmation of its operation in accordance with the company’s articles of association / bylaws and observance of due diligence within the scope of confirmation.

KPMG Assistance

KPMG employs experts that specialize in the fields of law, corporate finance and accounting, and that – within the agreed scope – carry out analytical works and draw up a report confirming the company’s dividend-paying capacity within the above-mentioned scope.

The report records analyses of the balance sheet and the historical documents that constitute the grounds for creating the company’s capitals with a view to determining admissibility of payments and their amount.

The scope of analytical works may cover an assessment of justifiability of payments to shareholders, determination of the company’s need for cash means and assessment of the payment’s influence on the company’s working capital.

The works are concluded with an issuance of a report on the analysis carried out, wherein the dividend-paying capacity (i.e., capacity of distributing funds to shareholders) is determined.

New personal data protection standards – GDPR dedicated training

ABOUT GDPR

Standards of and the approach to the personal data protection were consolidated in the entire European Union.

Adoption in 2016 of the Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation – GDPR) is a major change in the scope of personal data protection.

Apart from the GDPR regulation, applicable will also be domestic regulations and guidelines.

Time for changes

The GDPR will apply from 25 May 2018.

This is the deadline, by which organizations must be ready with all their preparations to the compliance with GDPR.

In order to comply with the amended provisions, organizations are required to introduce numerous organizational and information technology solutions.

Key changes

  • New conditions for obtaining consent
  • New rights granted to natural persons
  • Privacy by Design & by Default
  • Obligatory cases of appointment of a data protection officer (DPO)
  • Obowiązkowe przypadki powołania Inspektora Danych Osobowych (DPO)
  • Obligatory reporting of breaches concerning personal data protection

A failure to comply with new provisions will expose an organization (controllers and processors) to a risk of being imposed a fine of up to EUR 10-20 million or up to 2%-4% of its annual global turnover.

About the training

A change of approach to the personal data protection will require a thorough understanding of new principles.

Lawyers of D.Dobkowski sp.k., a law firm associated with KPMG, help organizations to respond to legislation changes.

We are ready to provide you with a training session tailored to your needs.

The course is addressed in particular to managerial staff, persons responsible for personal data protection and processing, data and IT security.

Support in adapting to the new EU solutions in the field of anti-money laundering and terrorist financing

As of 13 July 2018 the new law on anti- money laundering and terrorist financing comes into force (the New AML Act), which implements regulations of the Directive of the European Parliament and of the Council (EU) 2015/849 of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing (commonly referred to as the 4th AML Directive). The new regulations make the obliged entities implement appropriate changes to their internal regulations (including, e.g., new risk assessment rules, modified provisions on application of financial security measures) and adopt new regulations for the group. The New AML Act includes also a number of transitional and adapting provisions.

The Law Firm D. Dobkowski offers you comprehensive assistance in the area of the new AML regulations, including in particular:

  • Analysis of the obliged entity’s status in order to identify its obligations under the New AML Act and define the scope of indispensable changes in the internal AML procedures;
  • Assistance in preparing or changing internal regulations and group regulations adjusted to new AML Act requirements;
  • Conduct of legal audit in companies in order to evaluate the range and manner of realization of the notification obligation towards the Central Register of Beneficial Owners;
  • Representation of the obliged entities before the supervisory authorities.

Audit Comitees

The Act on Chartered Accountants, Audit Firms and Public Supervision (Journal of Laws of 6 June 2017, item 1089; hereinafter: the “Act”), passed by the Sejm on 11 May 2017 and aimed at application of Regulation (EU) No 537/2014 on specific requirements regarding statutory audit of public-interest entities, requires that public interest entities which meet the criteria specified in that act, appoint their audit committees. Public interest entities (hereinafter: “PIE”) that at present have their audit committees and those, wherein audit committee’s duties are performed by supervisory boards, will be required to satisfy the new obligations. Any failure to comply with the new provisions is punishable with severe financial sanctions that may be imposed on both, the company and members of its governing bodies.

The Law Firm of D.Dobkowski offers you its comprehensive assistance including in particular:

  • analysis of an entity’s status in order to define its obligations stemming from the new act with reference to setting up an audit committee;
  • assistance in developing policies and procedures concerning selection of an audit firm and provision of additional services by an audit firm, an entity affiliated with an audit firm or a member of its network;
  • assistance in developing regulations specifying the principles of appointment of an audit committee, its composition and rules of operation, or assistance in reviewing the currently applicable regulations;
  • drafting amendments to the company’s bylaws in order to adjust them to the statutory requirements;
  • drafting agreements to be concluded with supervisory board members that are also members of an audit committee.