Incorrect power of attorney submitted to NBA may be revised

On 4 March 2015, the Regional Court in Warsaw issued an interesting decision by regarding the complaint of the Chairman of the Public Procurement Office submitted against the Decision of the National Board of Appeal. The NBA dismissed the appeal due to the incorrect power of attorney submitted by the appealing Contractor. Let’s look at the case from the very beginning …

Decision of the National Board of Appeal

On 21 November 2014, the National Board of Appeal decided to dismiss the appeal submitted by the Contractor who attached an incorrect power of attorney to its appeal application. The power of attorney did not confirm the authority of the person who had signed the appeal. In the opinion of the NBA, the appealing party could not be called to amend / supplement the power of attorney. The appealing party is only allowed to provide a missing power of attorney, but cannot amend it if it is incorrect.

The Chairman of the Public Procurement Office objected to this Decision and filed a complaint against it. The Chairman stated that an incorrect power of attorney could be amended or supplemented as if it had not been submitted in the first place.

Decision of the Regional Court

The position of the Chairman of the Public Procurement Office was upheld by the Regional Court in Warsaw. The Court stated that the NBA had been wrong in dismissing the appeal.

In the opinion of the judge, the NBA, while investigating the appeal in formal terms, is required to verify if the signatory of the appeal is duly authorised to submit the same. The lack of power of attorney is tantamount to submitting an incorrect power of attorney and indicates the lack of authority of the person submitting it. The NBA is required to call the appellant to remove such a deficiency by submitting a correct power of attorney.

In my opinion…

This decision of the Regional Court is important for two reasons.

Firstly, it provides the appealing entrepreneur with the opportunity to replace the incorrect power of attorney submitted with the appeal lodged with the NBA. So far, this has raised quite considerable controversy due to the ambiguity of the regulation regarding removal of formal deficiencies of the appeal.

Secondly, this decision confirms the importance of the complaint procedure initiated by the Chairman of the Public Procurement Office, which influences the practice of appeal proceedings in public procurement contracts.

Therefore, the activity of the Chairman of the Public Procurement Office should be perceived as a positive phenomenon when it comes to lodging complaints against controversial decisions of the National Board of Appeal. Keep up the good work, Mr Chairman!

The constitution of a family business – what is it and why is it needed?

The constitution of a family business is a relatively new document among Polish entrepreneurs. The first document of this type was issued at the end of 2010 – the constitution of the Roleski family business (see also:

Ideas and components of the constitution of a family business

It should not be surprising that a family business, created and developed for many years, gives rise to a strong attachment of the founders to their family business. However, with each successive generation, this attachment may become weaker. In addition, expansion of the family increases the likelihood of possible difficulties, e.g. related to the successful management of the company. Therefore, the collapse of the company must be prevented even before the first problems or crisis symptoms appear. In order to avoid them, family entrepreneurs need to create a document clearly defining the objectives and the values of the family, its vision and guidance in terms of managing the business, decision-making and dispute resolution.

Creation of a family business constitution seems to be a good solution.

Among the many reasons why a family business constitution is worth drafting, we should mention the regulation of the relationship between the family and the business, and the guaranteed existence of the business in the future. Moreover, the constitution allows for integration of the family around the business, it promotes its coherence and integrity, as well as defines common tasks and plans by supporting communication between family members. Another important element is the possibility to create the so-called governing bodies in the family – performing similar functions to those exercised by managing or supervisory bodies in companies.

As far as the practical aspect of such constitution is concerned, this document may determine the manner of profit sharing in the family, the principles of employment of individual family members, the principles of share disposal or introducing amendments to the constitution.

It should be noted here that each constitution is directly related to a specific family and a specific business. Due to discrepancy in objectives and values, creation of a single, generally applicable specimen constitution is not possible. Such documents are developed for each family on an individual basis. Furthermore, the constitution of a family business does not have a binding force and therefore should be harmonised with other documents, e.g. articles of association/company deed.

The studies conducted in Germany in 2011 indicated that that in 80% of the surveyed family businesses, the expectations related to the constitution had been fully met and the effects of its creation had exceeded the expectations (source:

The constitution of a family business offers intergenerational stability to family businesses.

In my opinion, a constitution of a family business is an excellent choice to ensure continuity of the business. At the same time, it is a great way to regulate the relationships between individual family members, and between the family and the business itself. I recommend this solution to those entrepreneurs who are interested in maintaining both the identity and ownership of their family business.


Significant amendment to the copyright law

On 5 October 2015, the President of Poland signed the so-called “significant” amendment to the Act on Copyright and Related Rights. Let’s take a look at some of the changes to the Act, which in my opinion are noteworthy:

Incidental use of another work

The amendment introduces the term of incidental use of another work – i.e. admissibility of inadvertent inclusion of a work into another work.

Such use, arising from inadvertent inclusion, will be only permitted in the following cases:

  1. In the event of “inadvertent inclusion of a work “; and
  2. If such work included in another work is of no importance for the latter.

This regulation is very favourable for the film market. Quite often claims are asserted by creators of works which may be found in the background frames of the film, and in accordance with the amendment, their claims will be unjustified!

Remuneration for ‘library’ rentals for authors and translators

The introduction of remuneration for library rentals for authors and translators in Poland was forced by EU regulations. This obligation was imposed on Member States by the Rental and Lending Rights Directive of 12 December 2006.

In accordance with the amendment, remuneration will be due only to authors creating their works in Polish and Polish translators of foreign language works. This fits in with the European trend for promoting and remunerating national and domestic literature.

Fair use of orphan works

The act introduces the term of orphan works, i.e. works whose author or another beneficiary of rights thereto cannot be established or found. The new provision allows for the use of such works which has been impossible so far due to inability to obtain permission from beneficiaries.


I welcome the new provisions offering protection to copyright owners while allowing for the development of the copyright market in Poland. However, it is important that the scope of permitted use of a work in another work should be precisely defined, allowing for establishment of mutual rights between authors. At the same time, the fair use of orphan works expands their availability.

Imprecise Terms of Reference – a problem for the Contracting Authority!

A very interesting ruling was announced by the Regional Court in Gdansk on 10 July 2015 (file reference number I C 2/15).

Ambiguous definition of the method of calculating the price in the Terms of Reference.

The Contracting Authority placed a notice of a public procurement procedure for the provision of certain services. In the contents of the Terms of Reference, it defined the method of calculating the price for the service. However, the method was so imprecise and unclear that each of the three bidders calculated the price in a different manner.

The Contracting Authority rejected the offers of two bidders due to the incorrect calculation of the service price, and selected the offer submitted by the third bidder.

The Chairman of the Public Procurement Office decided that this situation was unlawful and brought an action for annulment of the concluded contract.

Contractors cannot suffer negative consequences of errors in the Terms of Reference.

The Court upheld the decision of the Chairman of the Public Procurement Office, and indicated that the contents and provisions of the Terms of Reference should be clear and precise, and should not raise any interpretation doubts.

Most importantly, the Court prescribed that in the case of any doubts or unclear provisions in the Terms of Reference “they should be decided in favour of contractors who may not suffer negative effects of their incompliance with unclear and wrongly formulated provisions of the Terms of Reference”.

In the justification of its ruling, the Court stated that a bid may not be rejected due to improper calculation of the price if the same was attributable solely to the Contracting Authority and the manner of preparation of the Terms of Reference allowing for errors in the price calculation.

The Court expressly upheld the opinion demonstrated by the Chairman of the Public Procurement Office by stating that given the fact that all the offers had been prepared on the basis of the Terms of Reference, and each of them was in compliance with one of the price calculation interpretation options – there were no grounds for rejecting two of the three offers.

Interpretation doubts should be ruled in favour of contractors.

This ruling is a clear statement that imprecise and ambiguous Terms of Reference constitute a flagrant violation of laws, and result in consequences which may not be accepted from the point of view of public procurement.

By issuing the ruling, the Court has further supported the opinion that Contractors should be treated as a less privileged party in relationship with the Contracting Authority in the public procurement process, and therefore any doubts arising from Terms of Reference should be ruled in their favour.

How to assign an individual business to a family member?

It is difficult to clearly estimate how many people are engaged in conducting individual businesses (self-employment). Certainly, this is a very large group, and according to various reports and data, in Poland there are two million self-employed entrepreneurs.

However, a few of them probably wonder if, when and how to assign their business to their children, wives or other family members, i.e. succession?

Methods of individual business succession

We should note that there are three main methods of assigning a business conducted in the form of self-employment.

The first method involves concluding an agreement with the successor (e.g. children) on the sale of the business. If one of the assets of such business is real estate, the agreement has to be concluded in notarial deed form. Otherwise, a standard agreement would be sufficient.

Another option is donation of the business. The donor and the donee make individual statements before a notary public, and thus execute a free-of-charge transfer of a benefit to the donee.

The last and the least known method of succession is inheritance: statutory or testamentary – provided that the testator has prepared his/her last will. What is important here is the fact that the succession is only effective upon the death of the testator, and thus, he/she may run the business throughout his/her life.

What is the most efficient method of succession?

Undoubtedly, each entrepreneur wants his/her business to operate, develop and generate profits for as long as possible. The above options allow for taking care of the future of the family and the business itself before the death of the entrepreneur. Of course, they do not guarantee the continuation of the business in the coming years, but significantly reduce the risk of its bankruptcy once its founder has ceased managing it.

My personal recommendation is succession by disposal or donation. Such methods guarantee the execution of the will of the entrepreneur, in terms of succession, without any disputes. On the other hand, in the case of inheritance, there may be disputes between individual successors.

Furthermore, in the case of failure to prepare or improper preparation of the succession process, after the death of the business owner, there may be significant obstacles to the further existence of the business.