Article: Unfair Competition
In a situation where the intensity of disputes among partners poses a threat to company's existence, partners who are stepping down may make efforts to take the know-how with them as well as to acquire company's customers in order to continue operations under a new - this time, an independent - company. It is also possible that partners leaving, especially in a scenario where customer acquisition proves difficult - submit false information on the remaining partners, for instance by falsely informing that the deliveries of company's products may be threatened due to an adverse financial standing suffered by the other partner, hence the supplies may be routed exclusively through his/her own company.
Examples of protection initiatives are stipulated by the Polish Law on Counteracting Unfair Competition, dated 16 April 1993 (Journal of Laws dated 2003, issue 153, item 1503; hereinafter referred to as: LCUC.) Rights stipulated by LCUC may also be applied by all private individuals and legal entities with their seats in an EU member state. Typical acts of unfair competition include in particular the following instances:
Popularization of False Information: article 14, LCUC.
An act of unfair competition refers to the popularization of false or misleading information on one's own enterprise, other entrepreneur, or his/her enterprise to gain benefits or cause damage (article 14, item 1, LCUC). Information in the understanding of article 14 item 1 refers to false of misleading information, in particular concerning business and legal standing (article 14, item 2, point 4, LCUC.)
Unfair Advertising: article 16, LCUC.
In line with article 16, item 1, point. 2, an act of unfair competition concerning advertising refers to, in particular, advertising which misleads the customer and which may influence his/her decision concerning the acquisition of goods or services.
Both the EU law (EU Directive no. 84/450/EWG), as well as Polish literature (J. Szwaja, Ustawa o zwalczaniu nieuczciwej konkurencji. Komentarz. Warsaw 2000, p. 420) interprets advertising as any statement which is aimed to praise goods or services and concerns business activities. Misleading advertising occurs when advertising evokes images in the mind of the recipient which are not reflective of reality. The statements do not necessarily need to be false - it is sufficient that despite their seeming truthfulness, they lead to false conclusions. (J. Szwaja, Ustawa o zwalczaniu nieuczciwej konkurencji. Komentarz. Warsaw 2000, p. 458).
General Clause: article 3, LCUC.
Where it is not possible to prove an act of unfair competition as interpreted by article 14 or article 16 of the LCUC, general clause, article 3, item 1 of the LCUC may be applied.
In line with article 3, item 1 of the LCUC, an act of unfair competition refers to an act which is in conflict with the law or proper conduct if it threatens or violates the interests of a different entrepreneur or the customer. An act of unfair competition discussed in article 3, item 1 of the LCUC is of a subsidiary manner and is applicable where a special act of unfair competition as stipulated by LCUC does not apply.
What can be gained by filing a suit?
An enterprise whose interests are threatened or violated as a result of an act of unfair competition in line with the stipulations of article 18, item 1 of the LCUC may specifically demand the following:
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that action prohibited be discontinued;
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that implications of action prohibited be removed;
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that a statement containing relevant contents and made in an appropriate form be submitted once or several times;
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compensation for the damage done;
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release of benefits which have been acquired groundlessly.
NEWS
On 8 January 2009 entered into force the amendment in the Act of 15 September 2000 “The Code of Commercial Partnerships and Companies” (Polish Law Journal 2000, No. 94, Item 1037; hereinafter referred to as: POL CCPC ). All changes are stipulated in the Act of 23 October 2008 changing the provisions of the POL CCPC (Polish Law Journal 2008, No. 217, Item 1381).
Below we present selected aspects of changes:
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the amount of the required initial capital of a limited liability company (Art. 154 § 1 of the POL CCPC) and of a joint stock company (Art. 308 § 1 of the POL CCPC) has been reduced from 50.000 PLN up to 5.000 PLN by limited liability company and from 500.000 up to 100.000 by joint stock company;
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the amendment modifies the responsibility of the subject conducting a registered partnership (spółka jawna) with sole trader entrepreneurs who contributed his enterprise to the registered partnership. Pursuant to the amended contents of the Article 33 of the POL CCPC, such a subject will be responsible for the obligations which accrued by this enterprise before the day of establishment of the registered partnership. The value is calculated prior to the state of the enterprise from the moment of contributing it and prior the prices from the moment of fulfillment of the creditors obligations;
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Art. 173 § 2 and 3 and Article 303 § 3 and 4 of the POL CPCC has been removed. The declarations of intent made by the single sole shareholder of the company towards the company in the matters which transcending the scope of ordinary acts do no require written form with the signature certified by notary any more;
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according to the new provisions of Art. 193 § 4 of the POL CCPC dividends are to be paid on the date which is determined in the respective resolution of the company’s shareholders / general meeting of shareholders or – in case of failure of such kind of resolution – on the date which is determined by company’s management board/supervisory board.
There are also significant changes in the Polish Labour Code:
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on 1 January 2009 the period of the maternity leave has been extended from 18 up to 20 weeks;
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on 18 January 2009 enter into force new regulations, which apply more protection of employers against discrimination;
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also on 18 January 2009 enter into force the new safety and fire protection regulations. According to the new regulations entrepreneurs have to appoint the employer, who will be accordingly educated and responsible for fire protection. Because of the protest of organizations of entrepreneurs currently there are running works in the Ministry of Work which intend to amend these new provisions in the near future.
The legal and tax information is published by:
von Zanthier Kancelaria Prawnicza sp. k.
ul. Garbary 56, 61-758 Poznan
Phone: +48 61 8582 550
Fax: +48 61 8518 259
contact person: Lukasz Dachowski
