The Necessity of Amendment To The Atomic Law

The introduction of nuclear energy power is essential due to increasing electric energy demand and at the same time the necessity of meeting by Poland the international requirements in the scope of limiting of the greenhouse gases, carbon dioxide and nitrogen. However without an amendment to the Atomic law, Energetic law and also others – dispersed in all legal system – provisions concerning this subject, the potential investor at the very beginning shall come across serious problem.

According to the „Polish Energy Policy until 2030” in prospect of next 20 years Poland has decided on building the nuclear power station. Such an intention should also contribute to achieving ambitious plans of balanced development in the scope of relative reduction of pollution emissions in the European Union. The implementation of the nuclear energy policy shall be based on the outcomes of reliable economic, ecological and social analysis justifying the necessity and specifying the conditions of the development of technologies in the safe, ecologically clean manner and economically competitive to other technologies.

The currently in force – Atomic law of 29th November, 2000 (Journal of Laws of 2007, No 42, item 276), which entered into force in 2001, is currently the most important act governing the issues concerning the nuclear safety in Poland. It specifies inter alia the activity in the scope of peaceful use of a nuclear energy, associated with real and potential exposure to radiation from artificial radiation sources, nuclear materials, devices producing ionising radiation, radioactive wastes and spent nuclear fuel. It also indicates the relevant bodies in the matters concerning the nuclear safety and the radiological protection and also the rules of civil liability for nuclear damages. Moreover in the above-mentioned act fines were provided for breaching the provisions concerning the nuclear safety and radiological protection and the rule of its imposing. Unfortunately the above-mentioned act, which still governs the activity of nuclear reactor in Świerk, currently does not enable building of an nuclear energy station. Thus Poland should in the first place adopt the new atomic law. Only after the above-mentioned it may consider preparing the proper business plan.

What should be changed?

By construing new provisions it should be taken into consideration that a nuclear energy station shall be the first venture including starting the energetic nuclear device. So far the provisions of the Atomic law concerning the nuclear processes, were applied in practice only in medicine or in relation to the research and scientific objects. On the other hand the provisions of the power sector and environmental protection do not cover with their scope nuclear energy.

The new regulations of the atomic law should define the nuclear power station, as a nuclear object, energetic and technical at the same time. Thus in the first place the inconsistencies within polish legal system should be removed. For example the process of building and starting the nuclear power station requires filling the gaps in the point of contact of: atomic, environmental protection, construction and energetic law as well as eliminating the inconsistencies of legal regulations concerning the lack of explicitly responsible body and regulations concerning dispersion of decision-making competencies. For this purpose it should be began with a verification of the consistency of the national provisions with international law and ratified by Poland international treaties and agreements. Particular attention should be paid to the regulations concerning the safety of construction, starting and operation of the power station and located within the station nuclear facilities. It is also necessary to regulate issues related to radiological safety, the protection of workers and the population against the effects of radiation, environmental protection and mitigation of effects of nuclear energy. You cannot ignore the legislation relating to export and import of radioactive materials and equipment of nuclear facilities, as well as the exchange of information on radiation incidents that may have an impact on the population and the environment. Moreover, it is also important determine detailed legal framework of the procedure for the designation of the power station location and assessing its impact on the environment.

Unifying the regulations concerning construction of nuclear power station.

The next step should be analyzing and amending the above-mentioned legislation making use of the European Law so as to establish the basis of the way for the investment and operation in accordance with the principles of safety, liability (operators and concessionaires), compensation (defined scope of the financial liability of the power station), independence as well as ensuring the peaceful use of nuclear energy.

Where do you start?

During the work on draw up of the above-mentioned provisions the requirements of the International Energy Agency, the European Utility Requirements (EUR) and the Western European Nuclear Regulator’s Association (WENRA) should be also used. They should be treated as framework, because it will be necessary to accept and adopt a number of detailed regulations and technical standards in force in the country of origin of the nuclear technologies. This applies particularly to the equipment and its components working under pressure and cranes which in Poland are being a subject to supervision exercised by the Office of Technical Inspection.

Finally, it is worth adding that in preparing the above-mentioned rules and regulations, Poland should base on the experiences of European countries such as France, which is the nuclear power, and which its regulation of the nuclear sector developed in accordance with the requirements of the EU. There is no mystery that we do not have any experience in the creation of nuclear regulation. We need help of experienced countries otherwise there will be bumpy and long road before the nuclear power station will be build in Poland .

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Outplacement

Outplacement is connected with duties of an employer towards his employees who lose their jobs within the group lay-offs procedure. General forms of aid programs and a definition of an outplacement are stipulated in an act from 20 April 2004 on policy of employment activation and on institutions of labor market (Journal of Laws of the Republic of Poland (Dz. U.) from 2004, No. 99, pos. 1001 with further amendments). According to the act, outplacement is a termination of an employment relationship due to reasons concerning a work place. In connection with that termination, services of labor market are provided for employees put on notice or being at risk of such a perspective.

A condition for qualifying a group lay-offs process as outplacement is an intent of an  employer to dismiss at least 50 employees within three months (art. 70 point 1 of the act on policy of employment activation), despite the total number of the employed in a given enterprise. In that case, an employer is obliged to arrange with a relevant county labor office a scope and forms of aid for the employees being during dismissal procedure. In accordance with the act, such an aid is to concern services of labor market (art.70 point 2) that comprise in particular employment agency, career counseling, trainings and aid in active search for a job (art.35). In case of lay-offs below the number of 50 employees, an employer may draw up an aid program but does not have to do this.

There is no universal model of carrying out an outplacement process. Many depends on specificity of a given business sector where outplacement is to take place as well as on needs of its employees. Aid programs for employees of lower professional ranks are different from those for management staff. Most commonly, employees can count on psychologist’s assistance, trainings, in-service courses, retraining, or those trainings where one can learn how to write an application for a job, a motivational letter or can get to know how to act during an interview. Programs within outplacement issue involve also very often monitoring of a local labor market in search for possibilities of employment for dismissed employees. In case when there are redundancies of specialists of different areas or managers, it is not an exception to prepare some individual aid services for them.

Programs with services of the labor market for dismissed employees may be financed from different financial resources, including (art. 70 point 4 of the act on policy of employment activation):

1) an employer,

2) employer and relevant public administration units (i.e. labor office),

3) on the basis of an agreement between organizations and legal persons with participation of an employer.

Basic services of the labor market are provided by provincial and county labor offices without charge, and all unemployed and searching for a job as well as employers are entitled to free of charge use of this services. Moreover, an employer may get a refund of a pension fund contributions paid by him, on condition that a training for the employees was paid for from his firm’s training fund (in addition, an employer is not obliged to set up such a fund). Employees comprised within a specific outplacement process have also right to, guaranteed by the parliamentary act, support of a relevant county labor office within the scope of career counseling and they may be referred to on-time trainings organized and financed by that office.

Implementation of aid programs within the issue of outplacement may be a kind of additional financial burden for entrepreneurs, especially when they make use of services of professional firms of career counseling which offer multifaceted activities within an outplacement procedure. It should be remember though that the better specialized an aid program is, the more efficient procedure of group lay-offs is going to be, and the lesser risk of court disputes will have to be considered.

Outplacement helps in creating positive relations with the employees under redundancy. It also have a considerable impact on an employer’s image, when he does not leave his previous employees without a helping hand. During restructuring, it is especially important to ensure relative stability in a company’s business activity, and agreement with the employees upon the aid programs makes it possible to avoid court disputes or strikes. It also brings a positive influence on an atmosphere within the firm despite the fact of the uncertainty of the employment. In enterprise where there is an authentic interest in helping the employees made redundant, number of court cases for infringement on employees’ rights or for unlawful dismissal within the group lay-offs procedure is definitely lower.

CEO Did Not Mean To Do Anything Wrong – A Parliamentary Act Is To Save The Situation Whereas Taxpayers Are To Pay

Problems which have arose recently within public companies and are connected with disadvantageous decisions made by their board of directors originate in, above all, conclusion of contracts stipulating currency options or swap operations, which were to hedge those public companies against financial loss. According to the Polish Commercial Companies Code, it is a board of directors that conducts the business and represents the company. Thus any decision made by the members of a board, in accordance with their settled share, constitute a decision of the company itself.

It is undeniable that the general goal of any entrepreneur is to generate profit. On the other hand, the second major purpose of a board of a capital company is to avoid potential loss. Companies that should particularly secure themselves against loss are definitely the ones whose main business activity is within production or export. For using security instruments against fluctuation of rates of foreign currencies, or for avoiding situation of change of interest rate of a taken credit, it is necessary to conclude a contract on currency options or on swap operations. These two types of contracts are the available and standard finance instruments, which may be freely used by companies.

But nowadays, when a significant and unpredictable change of economic environment took place, the question arises whether a board’s undertakings which were first to secure the company may be recognized as speculative venture that, in consequence, brought loss to the company itself and to its shareholders, as their decisions in question ended with not only the negative financial result of the given company but also with fall of share prices and of potential investors’ profits.

On making a decision about concluding a specific contract that is to improve the financial condition of a company by hedging it against loss, a board of directors acts in good faith. When there comes a disadvantageous situation for a company on a market, one may find it doubtful whether actions of  particular members of a board may be recognized as acting to the detriment of the company. Art. 483 of the Polish Commercial Companies Code clearly defines the scope of civil liability. Assuming that a board concludes a contract on currency options or Cross Currency Interest Rate Swap (CIRS) with a bank or a swap broker, opinion about its liability, due to the above undertaking, should be drawn on the basis of the mentioned code regulation. First, there should be emphasized the individual character of liability of any member of a company’s board, despite the fact that they make a decision on behalf of a company. This means that each member of a board is held responsible if he/she participated in a conclusion of a relevant contract. The second necessary condition for deriving liability of a member of the board is a possibility to attribute the blame to a member of the board for having completed the given legal action. The above means that loss of possession of a company should be a result of a deliberate act of a member of the board. Third, members of a board of directors are under an obligation of particular care that originates in the character and high rank of their professional status. This results in much higher level of expectations which should be taken into consideration when assessing their work. On the basis of jurisdiction of the Supreme Court of the Republic of Poland, it can be explicitly said that the above mentioned particular care involves, among others, a knowledge of organizing and financial processes, ability to manage human resources, as well as familiarity with the binding law.

Taking all above into consideration, it is difficult to find arguments for which a board’s action (de facto action of its members) of signing a complex and multi-layered contract on currency options or a Cross Currency Interest Rate Swap (CIRS) might be recognized as culpable acting to the detriment of the company. First-of-all, it is not against the law. The process of concluding a contract on options is in principle an extremely intricate one, and, in fact, it is all about offering by the financial institution to conclude a contract stipulating this sort of security and constitutes an offer for a specific, standardized finance product. In the face of such a contract, a board’s above-the-average care (mentioned previously) should comprise not only the members’ examination of the specific character of the contract they are about to sign but also – and maybe first-of-all – their understanding of the given security mechanism which they are planning to introduce in their company. Due to the above, it should not be the case that a board of directors concludes a contract without a previous legal consulting or without a detailed analysis on potential risks that may afflict the company under the relevant contract. It is worth pointing out that some companies made decisions about using the instrument of currency options when most of financial analysts had already started to inform about considerable potential risk connected with the instrument. In such a case, a board’s decision should be described as, at least, negligent.

In the civil law, a contract is a legal relation of bilateral obligation.  Thus, rights and duties concern both parties and are stipulated in a contract, first. Asymmetry of those rights and duties is another issue, which may result from a will of both parties, or from unaffected acceptance of one of the parties for entering a contract formulated in this way. In case when a contract stipulating such a complex system of mutual obligations as options or swap operations is concluded, it should be pointed out that such a contract comes down to the code structure of a contract of exchange or of a contract of mutual wagering. It is important to stress also that only in a theoretical situation, there is a possibility that both parties at the same time shall have no obligations to mutual performance.

In connection with the all above, it can be stated that the issue of liability of a board’s members due to conclusion of a contract on options or on swap operations involves such factors as: actual economic advantage of a financial institution which offers an adhesive contract (conclusion by entering into a contract), limited possibility to negotiate such a contract, and the character itself of the described security. While options may still be regarded as security on the spot market, swap operations are of special sort of speculative instrument. Thus a question arises, where the borderline between securing the company against loss and speculative investment of the company’s resources, at its own risk, really is. The answer depends only on an assessment rendered in a specific case by a Court. It is impossible, at the same time, to formulate a general rule on the subject.

Presented recently in public, an idea of invalidation of the option contracts concluded between banks and their clients should be described as highly arguable due to fundamental rules of the civil law. Even in case of repurchase of financial obligations of the involved companies from the banks by the State Treasury, a problem of financial loss coming after fall of share prices of the involved companies arises. It is worth considering here whether the newly promoted concept can cause loss of the banks’ this time and thus whether it is going to evoke another potential claims for compensation towards the members of their bodies. Is the State Treasury to cover those losses too?

Rose of Columbus Competition

Anna Kozanecka – Żarnecka, Advocate, the Director of  the Department of Foundations, Associations and Lobbying was the member of jury of the Columbus’ Rose competition for the best travel agency catalogue.

Fifteen best directories was selected by the jury in the first stage of the contest. One from the directories chosen by jury will be awarded , and two others will receive the honorable mention.

The assessment of compliance with the law of the directories was made by an expert on the basis of the binding regulations, which indicate the information that should appear in brochures, folders and catalogues of travel agency.

The Changes of Cash Flow Management

An extraordinary general meeting of shareholders of Cash Flow decided to appeal Grzegorz Gniady from  the board of company. This course of affairs did not expect Gniady or shareholders.

In accordance with the statutes of the company, when the supervisory board is incomplete to dismiss a member of the board of the company must be 2 / 3 vote. This package does not have Igor Kazimierski – the President of Cash Flow, dismissed in December by the board of directors, but in part composed of, divided against itself with Grzegorz Gniady. He had to have an extraordinary general meeting of shareholders of less than 60 percent votes. It helped him The Chałas & Partners Law Office, the head of almost all of yesterday’s extraordinary general meeting of shareholders spoke on behalf of the President of the extraordinary general – Kazimierski father. In order to justify the decision to exclude more than 40 percent of the voting shares, refers to the claim filed against Gniady and his company to work to the detriment of Cash Flow. Voted against the appeal, including Brokerage House IDMSA.

Annual Registration Summit 2009

Mr Rafał Pelcafal Pelc, head of the Pharmaceutical Department has participated in drafting of the amendments to the the Pharmaceutical Law. The Speaker at the Conference organized in the third edition of the annual Summit of the Registration Departments of Pharmaceutical Companies (Annual Registration Summit 2009).

The Congress is deemed to be the most important event for the pharmaceutical industry. Our expert has given a lecture on amendments proposed within the framework of the revision of the Pharmaceutical Law relating to the implementing regulations.

Mr Rafal Pelc has presented new rules on the advertising and spoken about the impact of the revision on the prices of medicines. He has considered the key issues with regard to the administrative charges for marketing authorizations for medicinal products, as well as to the anti-monopoly restrictions. He also has analyzed in his presentation a new regulatory framework for the medical products available in the other places than pharmacies.