Poland

Poland represents a scenario of great interest not only on the side of bilateral trade, but also on the side of direct investment in the country, confirming itself as one of the member states with the strongest attractiveness within the EU; Italy, in particular, is characterized by a significant presence of investors in Poland, especially in the automotive sector. With reference to foreign investment (and on this point Polish legislation is fully aligned with European legislation), the principle of equal treatment is fully applied, as there are no normative distinctions (in terms of limitations or additional permits) between investors from member states and investors from outside the EU.

. In general, the attitude shown by the country toward foreign investment is one of great openness, Poland having relied heavily on this element for its economic development. With the main purpose of attracting investors, the country has, since the 1990s of the last century, provided for the creation of fourteen Special Economic Zones (so-called "SEZs"), i.e., areas with infrastructure and space for activities, which, through the application of tax incentives for companies located there, aim at the creation of advantageous conditions for starting new business activities or, indeed, for attracting foreign investors. Examples include income tax exemptions as a percentage of the investment made (or labor costs), or even property tax exemptions for entrepreneurs who undertake to maintain possession of the property for a minimum period of time (usually, five years). Moreover, in more recent years (as of 2016), in view of the satisfactory result of these measures, the country decided to extend the regime proper to SEZs even outside the territorial boundaries of the same and to expand it to the entire national territory, in order to further enhance its attractiveness in terms of investment. The activity of supporting foreign entrepreneurs who intend to invest in the country is entrusted, in particular, to the Polska Agencija Inwestycij i Handlu (PAIH), or Polish Investment and Trade Agency, the main public body appointed for this purpose.

. Despite this framework of great openness, it should be noted that there are, however, restrictions on the freedom to do business in relation to certain sectors: in particular, investments in land and real estate are subject to restrictions on individuals and legal entities not resident in the European economic area, while for certain sectors considered to be of strategic importance (such as air transport, energy, broadcasting, port and airport operations), it is stipulated that the foreign controlling interest cannot exceed the threshold of 49%.

To conclude on investment, it can be said that, based on the assessments of major rating agencies, the country is characterized by a low risk profile (both in terms of credit risk, insurance risk and country risk), also receiving a positive rating from the World Bank regarding the business environment (Doing Business index). The proximity to the main markets in Eastern Europe, as well as the presence of skilled and cheap labor in the country, combined with the aforementioned soundness of the banking system and the attractive measures put in place by the country, are all factors that contribute to the decision to invest in the country.

In conclusion, Poland is definitely a country worth looking at carefully, presenting absolutely attractive features for potential investors, Italian and otherwise.

In Poland, the agency contract è is governed by Articles 758 ff. of the Civil Code; in addition, the country has transposed the European Directive on Commercial Agents (Dir. No. 86/653) into its domestic legislation. Under Polish law, the contract in question is a contract between entrepreneurs (so-called qualified contract), under which the commercial agent is obliged, within the scope of the economic activity exercised, to facilitate, on a continuous basis and for remuneration, the conclusion of contracts in favor of the principal. The agent’s activity may then be accompanied by the granting of an exclusive right, in relation to a specific geographical area, or a specific portfolio of clients. The role of agent may be held by either a natural person or a legal person established for this purpose; in Poland, no register of commercial agents has been established (since the exercise of the activity is not subject to such formal fulfillment).

The contractual form and requirements characterizing the agency contract

The contract is not subject to any special requirements as to form, nor is it subject to registration (it being understood that, as always, for the sake of certainty it is advisable to resort to formalization in writing). Polish law does not tend to allow the figure of the sub-agent, since the agent must fulfill the contractual obligations in person, without prejudice to the possibility of entrusting these tasks to others in the presence of the express consent of the principal. Under Polish law, the agency contract can be concluded for a fixed or indefinite term, with no minimum duration stipulated; the country’s law does not provide for any probationary period for the agent.

Only in the case of a contract concluded for an indefinite period, the option of unilateral termination is allowed, provided that a notice period is observed, the duration of which is parameterized to that of the relationship; the law does not allow the parties to shorten these terms by agreement, but only to extend them, and only on condition that the notice period provided for the principal is not shorter than that granted to the agent. È then contracting parties are allowed to terminate without observing the notice period in the presence of what are defined as “extraordinary circumstances”, that is, events of considerable gravity pertaining to the failure of the other party to comply with the duties incumbent on it.

With reference to the compensation awarded to the agent, the relevant regulation è contained in Articles 761 ff. of the Civil Code.

The agent’s right to commission

Generally speaking, it can be stated that the agent is entitled to receive a commission for contracts concluded by the principal during the term of the agency relationship and attributable to his activity or to clients previously procured by him for contracts of the same type, as well as;, in the case of exclusivity over a specific territorial area or client portfolio, a commission in relation to contracts concluded without the agent’s participation, but with subjects falling within the territory entrusted to him or his client portfolio. The law also recognizes, under certain conditions, the agent’s right to the commission even for business concluded by the principal after the termination of the agency contract, but the conclusion of which is a consequence of the agent’s intervention, or at least strongly attributable to it.

Obviously è it is desirable that the contracting parties adopt detailed regulation of economic aspects, to avoid disagreements on the point. In the absence of express determinations by the parties, Polish legislation recognizes the agent's right to payment of a commission that is customary in connection with similar relationships, having regard to the type and location of the activity performed, or at any rate (if determination by the above criteria is not possible), to a commission classified as “adequate”.

The agent's right to payment of a commission is not limited to the agent's own commission, but is entitled to a commission that is customary in connection with similar relationships, having regard to the type and location of the activity performed, or at any rate (if determination by the above criteria is not possible), to a commission classified as “adequate”.

Generally, the right to commission arises when the principal performs the service to which he è is obliged by virtue of the contract concluded thanks to the agent, and as to the collectability of the same, Polish law dictates the terms of payment through provisions of a mandatory nature. In order to protect the agent’s right to the correct determination of remuneration, the relevant legislation requires the principal to make available to him, periodically, the list of contracts concluded thanks to his intervention and data of an economic nature, also recognizing the agent’s right to inspect the principal’s books. The agent’s right to commission may lapse in the event that a contract concluded with a client is not fulfilled for reasons clearly not attributable to the principal.

Even after the termination of the contract, the parties may establish a non-competition obligation on the agent, which, however, must be adequately remunerated through the payment of an’indemnity. As clarified, in Polish law the regulation of agency is composed of numerous mandatory provisions, with the consequence that any contractual agreements in conflict with them will be considered invalid; è therefore, it is evident that extreme care will be required on the part of the contracting parties in the pactual regulation of the relationship.

One of the country’s greatest aspects of interest is undoubtedly its solid economic growth, a trend that has been going on steadily for some time: not only is Poland è the only economy in the European Union that has not been hit by recession following the international financial crisis that began in 2007-2008, but Poland has also; recorded some of the highest growth rates in the entire Union, and, in the most recent years, achieved its own highest level of growth in the last decade (reaching aggregate product growth rates of around 5 percent per year). The Polish economic system is diversified, the domestic market è large, and integrations, in particular, with the German production chain are strong.

The banking system also appears extremely solid, so much so that, according to leading rating agencies, it boasts the record of the safest system in Europe, and the country's banks, when compared to other credit institutions operating in the European market, are considered those with the best economic and capital profiles; this is because of the high level of liquidity present, an extremely balanced ratio of loans to deposits and, in general, high capital ratios. More in detail, banking is carried out to the extent of 95 percent by commercial banks and the remaining 5 percent by cooperative banks.

With regard to tax profiles, corporate income tax applies in Poland for all income of resident legal entities and for Polish source income for nonresident ones, at the ordinary rate of 19%, while being exempt from taxation some specific activities; legislatively identified (e.g., agriculture); value added tax is also applied (with operating and deduction mechanisms fully comparable to those in force in other EU countries), with the ordinary rate set at 23%.

The law firm Studio Legale de Capoa & Partners, thanks to its more than 30 years of experience in the field of international law as well as to the close collaborative relationships it maintains with qualified local professionals and native-speaking in-house associates, can offer interested entrepreneurs quick, efficient advice that is fully aware of the complexity of the Polish legal-economic reality.