BBS NEWS January 2024
9 July 2025 • Autor: Kancelaria Brysiewicz Bokina i Wspólnicy
BBS NEWS is a monthly information series on law and business and legal aspects of social change. We present the latest news, amendments and key topics presented in the form of, short and informative texts.
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JANUARY 2024
- New CJEU ruling on Swiss franc borrowers (C-140/22)
- Constitutional Tribunal ruling on the COVID-19 Act: suspension of the limitation period is unconstitutional.
- How to correctly account for company Christmas gifts?
- Minimum wage and minimum hourly rate from 2024.
- When does the owner’s poverty threaten animals? – Ruling on animal protection.
1. New CJEU ruling on Swiss franc borrowers (C-140/22)
On 7 December 2023, the CJEU issued another judgment (C-140/22) that may change the fate of Swiss franc borrowers. According to the above-mentioned judgment, Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that, in the context of declaring the entire mortgage loan agreement concluded with a consumer by a banking institution invalid on the grounds that the agreement contains an unfair term without which it cannot continue to be binding:
- they preclude a judicial interpretation of national law according to which the exercise of the rights which a consumer derives from that directive is subject to that consumer making a statement before the court in which he asserts, first, that he does not agree to the validity of that term, second, that he is aware, on the one hand, of the fact that the invalidity of that term entails the invalidity of the contract and, on the other hand, of the consequences of that invalidity, and, third, that he agrees to the contract being declared invalid;
- preclude the compensation claimed by the consumer concerned for the reimbursement of the sums he paid in performance of the contract at issue from being reduced by the equivalent of the interest which that banking institution would have received if the contract had remained in force.
Furthermore, the CJEU pointed out that, as part of its duties under Directive 93/13, the national court is required to examine of its own motion whether the contractual terms are unfair and, if so, to eliminate the imbalance between the consumer and the trader. The referring courts are therefore required to exclude the application of unfair contractual terms so that they do not, in the absence of opposition from the consumer, produce binding effects on him.
Furthermore, imposing on the consumer the obligation to make a formal statement in order to pursue his claims could undermine the deterrent effect which Article 6(1) of Directive 93/13, read in conjunction with Article 7(1) of that directive, intends to confer on the finding that terms in contracts concluded by a trader with consumers are unfair, since it would encourage traders to reject out-of-court requests from consumers seeking to have unfair terms declared invalid, given that they are required, in order to assert their rights under that directive, to make a formal statement before a court.
As regards the objection relating to statutory default interest, the Court explained that an interpretation of national law according to which a credit institution is entitled to claim compensation from a consumer in excess of the repayment of the capital paid under that contract, and thus to receive remuneration for the use of that capital by the consumer, would contribute to eliminating the deterrent effect on traders by rendering that contract invalid and thus jeopardise the achievement of the long-term objective pursued by Article 7 of Directive 93/13. In the above-mentioned judgment, the Court therefore confirmed what it had already ruled in Case C 520/20, namely that the bank is not entitled to any other benefits from the borrower in the event of the contract being declared invalid than the repayment of the capital received from the Bank.
Author: Julia Cichowska, Legal Assistant
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2. Constitutional Tribunal ruling on the COVID-19 Act: suspension of the limitation period is unconstitutional
The Constitutional Tribunal ruled that a provision of the COVID-19 Act suspending indefinitely the statute of limitations for offences and penalties provided for in the Criminal Code and the Fiscal Penal Code was unconstitutional.
The subject of the Constitutional Tribunal’s review was Article 15 zzr1(1) of the Act of 2 March 2020 on special measures related to the prevention, counteracting and combating of COVID-19, other infectious diseases and crisis situations caused by them (the so-called COVID Act), which suspended the limitation period for criminal offences and the limitation period for the enforcement of penalties in cases of criminal offences and fiscal offences during the period of the state of epidemic threat or the state of epidemic announced due to COVID-19, and for a period of 6 months after their revocation. This provision did not specify the date or maximum time limit for the suspension of the limitation periods, which meant that this legal situation could continue indefinitely.
In its judgment of 12 December 2023 (ref. no. P 12/22), the Constitutional Tribunal found the above measure to be too far-reaching.
The suspension of proceedings could continue regardless of the actual impact of sanitary restrictions on the ability of procedural bodies to perform their duties efficiently, thereby violating the principle of proportionality and citizens’ trust in the state and the law it enacts (Article 2 of the Polish Constitution and Article 31(3) of the Polish Constitution), as well as the right of individuals to have court proceedings conducted in accordance with the requirements of justice (Article 45(1) of the Constitution of the Republic of Poland). What is more, the issue of resuming the limitation periods was left to the discretion of the authorities, as it was the Minister of Health who decided to introduce a state of epidemic and epidemic threat by way of a regulation. As the Court points out: ‘the applicable laws do not contain guidelines on the substantive form of the regulation to be included in the regulation, i.e. the grounds on which the Council of Ministers is empowered to lift the state of epidemic threat or the state of epidemic.’ This situation violates Article 92(1) of the Polish Constitution, which clearly states that a regulation cannot regulate matters that fall within the scope of the so-called exclusive competence of the law.
The Constitutional Tribunal’s ruling means that proceedings for criminal offences and fiscal offences pending against persons whose limitation period would have expired if it were not for Article 15zzr1 of the COVID Act will have to be discontinued. In cases that have ended with a final conviction, it is possible to reopen proceedings on the basis of Article 190(4) of the Constitution of the Republic of Poland.
Author: Zuzanna Ciesiołkiewicz, Legal Assistant
3. How to correctly account for corporate Christmas gifts?
Entrepreneurs may include expenses for gifts for employees in their business costs, but this is subject to certain conditions. Representation costs aimed at building the company’s image are not recognised as tax costs, unlike advertising costs. Advertising gifts with a value not exceeding PLN 200 are exempt from employee income tax, unless the employee has a civil law relationship with the company. These include all kinds of gifts bearing the logo of the company giving the gift.
VAT deduction depends on the connection with taxable activities, but there are exceptions, e.g. for gifts with a unit value of up to PLN 20 net, such as sweets, calendars, pens or mugs. A gift treated as a donation is subject to a donation limit of PLN 5,733 over a period of 5 years and cannot be included in tax-deductible costs. It is also important to keep records of gifts, especially in the case of low-value gifts.
So how should we account for Christmas gifts given to employees?
In summary, gifts given to employees along with Christmas greetings can be VAT neutral, which means that they do not allow for a tax deduction on the purchase of goods, nor are they subject to taxation when given free of charge. This applies to both expensive gifts and so-called gifts of low value. However, it is worth bearing in mind that in certain situations, entrepreneurs always have the right to apply for an individual tax interpretation from the tax authority.
Author: Maria Wyszyńska-Dawgul, Legal Assistant
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4. Minimum wage and minimum hourly rate from 2024.
Pursuant to the Ordinance of the Council of Ministers of 14 September 2023 on the amount of the minimum remuneration for work and the amount of the minimum hourly rate in 2024 (Journal of Laws of 2023, item 1893), a higher rate of the minimum remuneration and a higher hourly rate are effective from the beginning of 2024.
The regulation entered into force on 1 January 2024. The amount of the minimum wage was set at:
- PLN 4242 from 1 January 2024,
- PLN 4300 from 1 July 2024.
The minimum hourly rate, on the other hand, will be:
- PLN 27.70 from 1 January 2024,
- PLN 28.10 from 1 July 2024.
We point out that it is therefore necessary to amend the contracts accordingly so that, from 1 January 2024, the contractual components included in the minimum remuneration constitute the minimum rate provided for by the regulations.
Author: Emilia Skibowska , Legal Assistant
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5. When does the owner’s poverty threaten animals? – Judgment on animal protection
The festive period is upon us, and with it the oft-repeated public argument about the treatment of pets as gifts.
Many of the owners-to-be show responsibility and anticipate in advance whether they will be able to give enough attention to their future pets.
However, it is not always about care and attention when it comes to the proper care of pets.
As you know, a pet is also, often not inconsiderable, an expense.
We always recommend considering whether our financial situation will allow us to keep it in appropriate conditions.
According to a judgment of the WSA in Gliwice, if doubts are raised about the conditions in which an animal is kept, the relevant administrative authority may take the animal away from its owner.
But does the owner’s poverty endanger animals?
The Voivodship Administrative Court in Gliwice, having examined at a hearing on 17 November 2023 the case ref. II SA/Gl 752/23 from a complaint against the decision of the Local Government Appeal Board in Katowice of 9 March 2023 no. SKO.OG/41.12/33/2023/6305 on the protection of animals, found that it is not within the competence of the authority to establish fault in the context of animal abuse.
The provisions of the Law on the Protection of Animals, insofar as they leave it to the administrative authorities to make a decision, do not make their decision conditional on the existence of fault or the lack thereof on the part of the owner. The authority is therefore only tasked with determining whether the animal is kept in proper conditions, and if not, it is tasked with taking it away from the owner.
It must therefore be stated that the owner’s financial situation can never be an excuse for inadequate care of the animals in his household.
Although poverty may affect the owner’s capacity to act, it does not exclude his or her legal responsibility.
Author: Filip Korycinski, Legal Assistant
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