June 22, 2016
Success in the dispute over unfair competition
We would like to inform you that as part of the process practice, our Law Firm represented one of the railway infrastructure managers, holding a dominant position on the Polish railway market, in a dispute with a subsidiary company of one of the leading manufacturers of railway traffic control devices (SRK devices) in Europe. The subject of the dispute was a claim based on the basis of art. 18 of the Act on combating unfair competition, including for compensation amounting to more than 19 million PLN. The merits of the proceedings related to extremely complex technical issues of building SRK devices. Therefore, the situation in this case was extremely expanded – the case file consisted of nearly 50 volumes (!). All the more pleased to announce that on June 22, 2016 the District Court in Warsaw issued a judgment dismissing the claim in its entirety, and – in terms of the decision on costs – retaining that the defendant won in 100% (the Court left detailed calculation of costs for the Judicial Referendary ). This judgment, although not final, is the unquestionable success of our Client and confirms the proper preparation of the lawyers of the process team to conduct disputes even the most complex in terms of legal facts. The process practice is one of the leading practices in our Law Firm.
April 28, 2016
Precedential ruling on the recourse of the guarantor to the bankrupt Client
We would like to inform you that a court hearing was held today on the opposition of our Client (insurance company – the issuer of the guarantee) from the list of claims drawn up by the trustee in bankruptcy proceedings of a construction company in bankruptcy liquidation (the principal to issue a guarantee).
The principal’s trustee refused to recognize the claims of recourse of our Client (resulting from the payment by him to the beneficiaries after the principal’s bankruptcy), relying on the expiry of a contract of mandate to issue guarantee on the basis of art. 102 Bankruptcy and Reorganization Law. At the same time, the trustee refused to put on the list conditional claims of our Client, arising from guarantees issued before the principal’s bankruptcy, but which were not yet the payment to the beneficiaries.
Therefore we are pleased to communicate that the judge – commissioner announced the decision today, which takes into account all the disputed claims in respect of the payments made under the guarantee by the issuer of the guarantee after the principal’s bankruptcy (the amount of nearly 8 mln PLN) and due to conditional claims (on the amount of several mln PLN). The judge – commissioner also found that – contrary to the trustee – collateral of submitted claims in the form of mortgages did not expire.
In oral motifs of decission judge – commissioner almost entirely shared our arguments about the nature of the general contract on the issue of insurance guarantees, ie. it is not a contract of mandate, to which could be applied art. 102 Bankruptcy and Reorganization Law, hence the principal’s bankruptcy does not affect the claims of the guarantor to the principal, due to the payment to the beneficiaries after the principal’s bankruptcy.
In addition, the judge – commissioner accepted that in the state of the law before January 1, 2016, on issue of the guarantee, the guarantor purchased conditional claim to the principal – for a refund of amounts paid to beneficiaries subject to the payment of a guarantee in their favor.
April 26, 2016
By judgments of April 26, 2016 the District Court in Warsaw, XVII Commercial Division – the Court of Competition and Consumer Protection (hereinafter referred to as ‘CCCP’) dismissed the two appeals against the decision of the President of the Rail Transport Office (hereinafter referred to as ‘President of the UTK’) on approving the unit rates of the national infrastructure manager of the basic fee for minimal access to railway infrastructure and the access to facilities related to the operation of trains on the train timetable 2014/2015. CCCP agreed with the arguments presented by the Law Firm and pointed out that the infrastructure manager applied the correct methodology for the calculation of fees and the President of the UTK applied logical sequence of arguments in a decision approving rates. The rulings are not final and the matter will probably be dealt with by the Appeal Court in Warsaw. However, at this stage it should be noted a serious step on the way to ‘defend’ the price list including unit rates of basic charge for minimum access to railway infrastructure and the access to facilities related to the operation of trains on the train timetable 2014/2015 and consequently to offset the railway infrastructure manager’s risk of multimillion claims by the railway carriers.
We are pleased with the success of the manager of the national railway network.
March 16, 2016
Another success against KIO!
We would like to kinldy inform you about the another success of the Wierzbicki Adwokaci i Radcowie Prawni’s team in the proceedings before the National Board of Appeal (hereinafter referred to as ‘KIO’).
The proceeding related to complaints about the outcome of the proceedings conducted by the city of Białystok regarding summer street cleaning and maintenance of green areas services. The contracting party made the division of the contract into six parts, with the reservation that one contractor might submit an offer for a maximum of two orders. In the three appeals filed, the appellant accused the Contracting Party that it was wrong not to reject bids to be filed in breach of fair competition, and was the result of an illegal agreement on market sharing. The Contracting Party selected three contractors for the offer, which in each sector proved to be the cheapest, and each of the selected contractors submitted a bid on another order. According to the appellants, the fact of submission of bids by contractors on the parts of the contract that are not covered in any respect, was the division between the parties of the contract, which would not compete with each other. In addition, arguments were raised about the existing cooperation of contractors or the use of a common logistics base, having insurance guarantees issued by the same insurance company. Furthermore, reference was made to the decision of the President of the Office of Competition and Consumer Protection (hereinafter referre to as ‘CCCP’) from 2014, which wasn’t in force, stating the execution by the contractors of unlawful agreement.
Procedural situation of our Law Firm in the proceedings further hampered the fact that the Contracting Party considered the appeals to the extent relevant to our Clients. Even more gratifying is convince of the KIO to the position shown by our Law Firm.
Dismissing all those appeals, KIO indicated in the wake of the arguments cited at the court hearing that:
• that the decision of the President of the CCCP is incidental and does not release appellants from the need to always prove the alleged infringements,
• in any case, the allegation of bid-rigging must be substantiated by the appellant,
• is not sufficient to rely on historical events, including this occurred on the basis of already completed contracts,
• providing equipment to other contractors on the basis of separate proceedings, do not constitute an obstacle to the submission of bids in separate proceedings.
We derive great satisfaction from the fact that once again the hard work the Law Firm’s team resulted in a favorable outcome proceedings for our Client.
February 18, 2016
Precedential judgment concerning joint and several liability of the investor for subcontractors’ remuneration!
We are pleased to inform you about another success after a long battle by the Wierzbicki Adwokaci i Radcowie Prawni’s team in the proceeding terminated before the Court of Appeals in Wroclaw. The subject of proceeding was a claim of the subcontractor against the investor, as an entity jointly and severally responsible together with the general contractor, for the payment of part of the remuneration of contractors detained previously by the general contractor to secure the due performance of the contract.
Represented by us subcontractor performed the work of reinforced concrete and insulation work on the raw state of the investment. Representative of the subcontractor made entries in the construction investment log, also conducted work on a construction site for a period of several months using labeled heavy equipment with the participation of 20 to 50 employees. The Disctrict Court in Wrocław while hearing the case at first instance in its judgment of June 11, 2015 in case file no I C 977/1 dismissed the claim filed by our Client. The Court found that the subcontractor wasn’t accepted by the investor, even implicitly. Moreover, according to the District Court the amount claimed by the subcontractor was not part of the remuneration, but deposit for securing the proper performance of the contract.
Due to the circumstances of the performance of our Client’s work, including regular attendance at the construction site representatives of the investor, including the entity holding the management and supervision of, we recommended to appeal. The Court of Appeal in Wrocław in its judgment of February 18, 2016 in case file no I ACa 1352/15, fully shared our arguments, changed the appealled judgment and upheld the claim in its entirety.
The following conclusions of the Court of Appeal are very important from the point of view of judicial practice in terms of subcontractors’claims against investors:
• protective function of due performance of the contract, which the subcontract’s parties attributed the temporary stopping of part of remuneration, does not entitle to qualify the amount claimed by the subcontractor as generically other than the claim of art. 647(1) § 5 of the Civil Code, which is part of the owed remuneration,
• in the absence of evidence as to the knowledge (the sphere of consciousness) of investor for carrying out part of the work by a subcontractor, as sufficient should be taken a presumption of knowledge of the investor, if it can be exported from the circumstances of the investment, eg. the nature and extent of work performed by a subcontractor, its participation in the meetings and receptions, contacts with the services of the investment, visible signs of the presence of contractors on construction site,
• knowledge of the presence of subcontractors on the construction site owned by the person actually supervising on behalf of the investor, shoul be equated with the knowledge of the investor, thus tolerating the presence of a subcontractor at the construction site can be regarded as an implied consent on the part of the investor.
November 10, 2015
The success of our Law Firm in the dispute over the return of the bid bond
With satisfaction we would like to inform you about our next in a lawsuit brought by a company which is a market leader in railway infrastructure, whose turnover amounted to 406 million euros for 2012, of which 51.3% were foreign sales. In the present proceedings we represented the defendant – manager of the Polish railway network. A dispute about the return of the bid bond was canvas of given facts. At the time of the tender, the plaintiff refused to conclude a contract, in consequence, the defendant saved the bid bond and filed to a bank demand of payment from the guarantee after the expiry of the period of the offer. The plaintiff filed a lawsuit for refund of the bid bond, indicating that the saving of the bid bond took place after the expiry of the period of the bid –argued also that “saving the bid bond” within the meaning of Art. 46 paragraph 5 of the Public Procurement Law means a necessity for the contracting authority to make, in the period of the bid, a unilateral declaration containing at least the intention of saving the bid bond (ie, in the realities of the case, the contracting authority must have made a withdrawal request from the warranty, even during the period of the bid). In turn, our Law Firm presented the view that at the time of the refusal by the contractor, even in the period of the bid, to conclude a contract with the contracting authority, he acquired the right to save the bid bond, whereas the technical side to exercise that power could already be realized after the period of the bid. The facts remained essentially indisputable, but in fact the dispute concerned resolving the precedential legal issue consisting in the assessment of whether fulfilling of the conditions of Art. 46 paragraph 5 point 1 of Public Procurement Law to save the bid bond (performance bank guarantee) must be carried at the time of the bid. In the existed case, the Court fully upheld position presented by us, assuming that the actual implementation of the bid bond has not been delimited by date. What‘s more important, that in the period of the bid, due to the refusal to conclude a contract, was established the right of the contracting authority to save the bid bond, which actual realization could take place later.
September 30, 2015
Success before the KIO repeated before the District Court
It is our pleasure to announce the success of the lawyers of our Law Office in the litigation regarding the procedure of public procurement by voivodeship city. In the proceedings, the subject of which was the winter maintenance of streets and sidewalks in the area of one of the voivodeship cities over the next three seasons of winter, the Law Office in the persons: Przemysław Wierzbicki, attorney at law, Maciej Łysakowski, attorney at law, and Jakub Brzeski, attorney’s trainee, represented the contractors who received public procurement in all sectors. At the first stage the matter has been recognized by the National Chamber of Appeal (KIO), which received three appeals against the actions of the Contracting Authority, focusing on issues such as the abnormally low price and a wrong way to be heard by the Contractors, formal failure with a bid submission and procedural irregularities by the Contracting Authority. After the success in the form of a rejection of all three appeals by the KIO, the case has been assessed to the District Court following a complaint filed by one of the appellants – which is relatively uncommon and indicates a high determination of the applicant.Following the court hearing held on the 25th of September 2015, the District Court issued on the 28th of September 2015 a judgment dismissing the complaint, thus sharing the standpoint of the KIO and the arguments of the lawyers from our Law Office at the stage of judicial proceedings. We are delighted that the work done by the team of the Law Office allowed to achieve fully satisfactory settlement for our Client.
July 27, 2015
Triple success before the KIO
With satisfaction we would like to inform you about our success in the proceeding pending before the National Chamber of Appeal (KIO). The subject matter was a public tender amounting to the multimillion amounts associated with key municipal services in one of the voivodship cities in Poland. As many as three companies participating in the tender procedure appealed against the result, in which as the contractor has been selected companies represented by the Wierzbicki Adwokaci i Radcowie Prawni. The proceeding covered three appeals and two of our Clients joined each of them. After the procedure, the KIO shared our arguments and rejected the appeal of these three companies. The KIO assessed the tender offer of our Clients as logically and rationally justified and not containing the criterion of ‘abnormally low prices’, which accused appellant. We are pleased that the work our legal team contributed to a favorable solution for our Clients.
July 15, 2015
The agreement reached thanks to the Wierzbicki Adwokaci i Radcowie Prawni
We are pleased to announce that we advised on the conclusion of an agreement between our Client – one of the insurance companies and the engineering and construction company, which in 2013 presented the sales revenue of over 250 mln PLN net.
The object of the agreement is the repayment by the engineering and construction company of obligation arising from claim for reimbursement to provide fulfilled on the basis of an insurance guarantee (ie. a right of recourse) in the amount of several million PLN.
In the course of complicated negotiations, it was necessary to balance the interests of both parties. On the one hand, the key was to establish appropriate security interest of the insurance company. On the other hand, it was necessary to preserve the interests of the engineering and construction company in a manner allowing her to obtain adequate financing to repay this obligation, and thus the proper execution of the agreement.
We are pleased that we could contribute to reaching an agreement by the negotiating parties, and consequently his signature. We believe that this success was anchored in long-term practice of our Law Firm in such areas among others like handling of warranty claims, disputes concerning warranties and investigation recourse claims.
June 2, 2015
Wierzbicki Adwokaci i Radcowie Prawni wins another case before the Court of Competition and Consumer Protection (SOKiK)
With great satisfaction we are pleased to announce another victory of our team of lawyers on the appeal of the Land Transport Chamber of Commerce (IGTL) against the decision of the President of the Office of Rail Transport (UTK) concerning approval of the unit rates of basic charge for minimum access to railway infrastructure and for access to facilities related to the operation of trains and rates for additional services on the 2013/2014 timetable, in which one of the key rail infrastructure managers, acting as participant, was represented by us.
SOKiK shared arguments presented by us that pricing list filed by our Client for approval by the President of the UTK is consistent with the applicable laws and takes into account the views expressed by the European Court of Justice in its judgment from the 30th of May 2013 ref. no C-512/10.
SOKiK dismissed the IGTL appeal in its entirety.
May 28, 2015
Another win – the question of the law applicable to the assessment of the employment relationship
With satisfaction we are pleased to inform you about the next success of our team of lawyers from our Law Firm. After a long polemic with the courts the position we presented – beneficial in terms of our Client, international airlines (operating in Poland) was ultimately approved. The case essentially focused on the question of determining the substantive law applicable to the assessment linking the claimant and defendant’s employment relationship, namely the choice of applicable law. On the basis of their dispute airline staff was investigating claims related to the termination of the employment contract under Polish law. In the concluded contract of employment the parties made a choice of law and pointed to the law of another Member State. However, the court of first instance ruled that in this case provisions of the Polish Labour Code should be applied. Thanks to extensive reasoning, ultimately the District Court in Gliwice shared our position that the claim of our opponent on the grounds of law of another Member State did not deserve to be upheld.
May 27, 2015
Win – a matter of changing the mode of bankruptcy proceedings with the possibility of an arrangement to proceedings involving the liquidation of the debtor’s assets
We are pleased to announce the success, achieved by a team of lawyers of our Law Firm, in a complex bankruptcy proceeding of the construction company with 50 years of experience with a share capital of over 240 mln PLN, which in the 2009/2010 financial year achieved over 500 mln PLN turnover and more than 9 mln PLN net profit, and in which we represented one of the creditors – Polish railway infrastructure manager. At our request, the bankcruptcy Court dismissed the administrator of a company, which was in bankruptcy with a possibility to make an arrangement, the Court also changed the bankruptcy proceedings from the bankruptcy with a possibility to make an arrangement for the proceeding involving the liquidation of the debtor’s assets and appointed a liquidator. We are pleased, because the decision of the Court is fully satisfactory for our Client.
October 31, 2014
Significant judgement of the Supreme Court of England and Wales
We would like to draw your attention to the judgment of the Supreme Court of England and Wales issued on October 31, 2014 related to claims for compensation for delayed flights. This judgment of the Supreme Court will undoubtedly have a great importance in practice since it has opened the way for a wave of claims against air carriers for delayed flights. The Supreme Court in this case refused to accept the appeal of the airlines and thus upheld the position of the Courts of Appeal, which was unfavorable to the carriers.
It is worth looking into judgments of the Courts of Appeal, analyze them and, consequently, consider the consequences of the judgments for airlines. The legal issue to be decided was whether unforeseen technical problems and the resulting delays are extraordinary circumstances that exclude or limit the liability within the meaning of Regulation (EC) No 261/2004 and whether the limitation period for damages claims under the Regulation is two or six years.
It must be recalled that – in the event of a specific flight delay and assuming that the delay is not a result of extraordinary circumstances which could not have been avoided even if all reasonable measures were taken – the provisions of Regulation No 261/2004 grant passengers the right to compensation in the differentiated amount, depending on the distance and destination of the flight, which the passengers are entitled to quote, if necessary, before national courts.
Firstly, the Supreme Court confirmed that the airlines are obliged to pay compensation for delay in flight due to technical problems. The Court stated that even if the technical defects are unpredictable, they ultimately cannot be regarded as extraordinary circumstances and thus – do not limit or exclude the liability of carriers.
Secondly, it raised the problem of limitation for claims for damages arising from flight delays. The Supreme Court confirmed that the 2-year period of limitation on claim provided for the Montreal Convention does not apply. Due to the fact that Regulation No 261/2004 does not contain any provision relating to the term of limitation for claims arising from delay, claimed before the national courts, whose object is to obtain compensation, one should refer to the provisions of national law. Thus, the term to bring an action for damages is determined by the national law of each member state. Bearing in mind the provisions of English law, on the basis of the present case the time limit is 6 years.
The judgment will undoubtedly have negative consequences for airlines. Passengers whom airlines refused compensation quoting the passage of the two-year limitation period, and those who have been refused compensation by airlines claiming that the delay is the result of a technical defect will bring proceedings to courts. Undoubtedly, following the judgment, avalanche of lawsuits against the airlines shall appear.
October 15, 2014
Another success – law applicable for assessment of employment relationship
We are pleased to inform about another success of our team in the workers’ charge against our client. The court of first Instance finally shared our arguments and consequently dismissed the action.
The case essentially focused on the problem of determining the law applicable to the assessment of employment relationship between the claimant and the defendant, namely the choice of applicable law. The international airlines staff claimed for damages provided for in Polish law in respect of termination of employment. However, the parties, while signing the employment contract agreed that the law applicable to the employment relationship will be the Hungarian law (state registration of the aircraft inseparable from the place where the work is done, which is the board of the aircraft).
The claimants argued that the choice of foreign law as the law applicable was ineffective, thus the provisions of the Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980. (Rome Convention) and the Regulation of the European Parliament and of the Council of Europe (EC) No 593/2008 of 17 June 2008. on the law applicable to contractual obligations (Rome I) are to be applied. The defendant has rightly pointed out that these provisions do not apply since the territory of the Republic of Poland they came into force after the conclusion of the employment contract by the parties, in which the choice of applicable law was made. The rules governing the choice by the applicant and the defendant of law applicable to the employment relationship were the provisions of the Act of 12 November 1965 – Private International Law and the Act of 3 July 2002 – Aviation Law in force during the term of the employment relationship. In accordance with Art. 10 of the Aviation law, rights and obligations of the members of the crew of the aircraft resulting from the employment relationship shall be assessed according to the law of the nationality of the aircraft, and if it is used by the air carrier with its registered seat in another Member State – under the law of the country which was the registered seat of the company, unless the parties have exercised the option of choosing another law. Moreover, the choice of foreign law was acceptable in the light of Article. 32 of Private International Law, due to the fact that the employment relationship was linked to the legal area of two states: Poland (the seat of the employer) and Hungary (place of the majority of the employee’s duties). Therefore, the parties of the employment relationship were entitled to choose the law applicable to the employment relationship and effectively made this choice.
With its comprehensive and substantive arguments our position was fully upheld by the Court, which resulted in dismissal of the claim due to the fact that the claim on the ground of the Hungarian law did not deserve to be upheld.
July 17, 2014
Appeal proceedings before the National Board of Appeal
We are happy to announce that we represented the Prosecutor General’ s Office in the appeal proceedings before the National Board of Appeal, of the appeal of Comarch S.A. regarding the selection of the most advantageous offer in the tender for the “Delivery, installation of rack and run server, hardware, scanners and network devices within the Implementation of project “Digitization of files in preparatory procedures and the establishment of local and central repository of files in digital form in common organizational units of the prosecution “. The greater is our satisfaction that the National Board of Appeal in its judgment of 17 July 2014 dismissed the appeal, and the evaluation of offers made by the Prosecutor General’s Office has been defended as correct. The case was precedent character due to the fact that Comarch S.A. raised new allegations of improper re-evaluation of offers, not raised in the earlier appeal in the same proceedings (which was also dismissed).
May 26, 2014
National Board of Appeal’s judgment on award of public procurement contracts
We are pleased to inform of the success we achieved on May 26, 2014 in the proceedings before the National Board of Appeal on appeals against the results of the public procurement contract award by the State Treasury – Prosecutor General’s Office.
The decisions taken by the Prosecutor General’s Office in the context of a public procurement were appealed by four contractors whose bids were rejected, or classified on further positions after the analysis and evaluation of tenders. What’s more, every appellant also joined the proceedings initiated as a result of other appeals – opting in each proceeding for one side, which led to a joint examination of all appeals by the National Board of Appeal in a single procedure – the configuration variable when it comes to Parties’ of the proceedings.
After a two-day hearing in which the Prosecutor General’s Office was represented by Przemyslaw Wierzbicki, Lukasz Zabczynski and Maciej Lysakowski we were able to achieve the result fully satisfying our client. Of the four appeals, as a result of the arguments raised at the hearing, both of the substantive and formal-legal nature, three appeals were dismissed.
The proceedings related to tender for the supply of computer equipment required to create the organizational units of the prosecutor’s office a coherent system of digitizing files of the preparatory proceedings. The specificity of the tender, assuming the performers’ far-reaching freedom in composing the computer system as a whole, was reflected in the provisions of the Terms of Tender, which to a great extent – in the part concerning the subject of tender – were of the minimum requirements of the ordering party, and the task of the contractors was to specify those requirements and declare the supply of specific equipment.
As a consequence, the main cause of the dispute was the nature of the documents in which the contractors declared the specific parameters of the equipment offered and its trade name – whether they were evidence of the fulfillment of the conditions for participation in the proceedings, and therefore subject to complement in accordance with art. 26. 3 of the Public Procurement Law, or whether they constituted the content of the offer – and as such were not subject to complement. The ordering party decided that this is the content of the offer within the meaning of contractor’s obligation to deliver specific products – and therefore the change of the offer in this regard may be done only in the mode of rectification of errors pursuant to art. 87. 2 of the Public Procurement Law. Judgment of the National Chamber of Appeal confirms the legitimacy of this position.
The final outcome of was satisfactory for our client and enabled a successful completion of public contract award.
April 15, 2013
Precedential judgment of the Court of Appeals on bank guarantees
Przemysław Wierzbicki successfully represented before the Court of Appeal in Gdansk our client – a company belonging to the international insurance group. The plaintiff demanded payment under the insurance guarantee in connection with the improper performance of the contract. The disputed amount with interest amounted to over 2 million Euro. The District Court of the first instance awarded the plaintiff a payment of the guarantee. The decision was controversial, especially in light of the doctrine and judicial practice so far.
The appeal was brought on behalf of the defendant – insurer, and covered the whole settlement. The Court of Appeal in Gdansk as a whole shared the allegations indicated in the appeal and changed the contested judgment, dismissing the claim in whole.