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Incorporation of Cloud Computing Into the Banking Sector and the Outsourcing Chain

The rapid expansion of cloud computing services presents new problems concerning compliance with certain legal requirements, especially in the banking sector.

Generally applicable polish law, which is presumed to be neutral from the technological point of view, does not directly regulate cloud computing as such. Despite this, regulatory restrictions on the outsourcing chain could be an obstacle to use of cloud computing services in the banking sector. This obstacle could be removed in the near future.

Use of cloud computing technology could pose a major challenge for firms for which there is a limit under currently applicable law with regard to the number of subcontractors they can use in the outsourcing chain. Outsourcing is regulated in various ways across the different legal regimes concerning the operations of particular categories of regulated entities. Banks in particular are subject to significant restrictions in this regard. Under current laws, banks can only outsource to one degree. Credit unions, for example, are also subject to significant restrictions, as there are no laws allowing them to subcontract.

A recently published bill proposing amendments to ensure growth of the financial market and protect investors on that market includes a plan to amend the Banking Law of 29 August 1997 (Journal of Laws of 2020, item 1896 as amended). The amendments could have major implications for use of cloud computing by firms in the banking sector.

An analysis of the consequences of the legislation provided with the proposal revealed that the envisaged changes are intended for instance to put into order and streamline the functioning of financial market institutions, in particular with regard to eliminating barriers to the financial market, making monitoring of the financial market more effective, protecting financial institutions’ customers, and harmonizing the legal instruments for protecting and disclosing legally protected secrets, by amending the laws on the financial market.

From the point of view of cloud computing service providers, who are able to make use of many types of specialized subcontractors, the envisaged liberalization of the approach to the outsourcing chain is a major development. At the same time, this is an opportunity to resolve definitively issues concerning whether it is permitted to create further outsourcing levels, for which essentially there are no legal limitations, for activities outsourced to third-party firms or foreign firms as defined in the law. The solutions proposed in this respect will be very important as regards broad use of cloud computing services in the banking sector.

Article by: Prof. UEK Jan Byrski, PhD, Habil.

Traple Konarski Podrecki i Wspólnicy Sp.j. Law Firm

Poland – New Public Procurement Law

On 11 September 2019 the Polish legislature introduced a new bill to the Public Procurement law which shall take effect as of 1 January 2021 and will replace the current Public Procurement Act from 29 January 2004, which has been in force in Poland for over 15 years. Many discussions were carried out in public between interested parties prior to the enactment of the new law. The new bill is designated to regulate the procedure for procurement by contracting authorities in a complex and detailed manner, whereby a procurement assignment shall be deemed a public contract for pecuniary interests concluded between authorities and economic operators subject to the execution of services and/or supply of products. The preparation of the new law meets long-term expectations of  entrepreneurs. In addition, the new bill also implements EU–directives in this area in order to tailor the procurement law in Poland better to EU–requirements and standards as well as to regulate the subject matter of awards of public contracts in a more transparent and conclusive way. The Polish legislator was also determined to establish new regulations in particular to support small and medium sized enterprises within public procurement proceedings, simplify conditions for selection of enterprises below and above the EU-threshold amounts, to equal parties’ rights within contractual relationships subject to public services / products supply, to impose an obligation to estimate the value of a contract, to improve the system of appeals against the decision of the National Body of Appeal (Polish Abbreviation “KIO”1) and the system of controls over public procurement proceedings, to implement the possibility of out of court settlements of disputes arising from public contracts and finally to strengthen the function of the public procurement sphere in Poland.

The outbreak of the Covid–19 Pandemic has already had a significant impact on the execution of public contracts already concluded under the present public procurement law. On 7 May 2020 a new Act on Special Regulations related to the Prevention, Counteracting and Combating of Covid-19 and other Transmissible Diseases within Crisis Situations was introduced in Poland to help current economic operators to meet their obligations under public contracts by way of conclusion of supplemental agreements with contracting authorities and to avoid the payment of any penalties due to delays in performance.

We have already written a comprehensive article about the new Polish Procurement Law which will be published in the Legal Magazine WiRO (www.wiro-zeitschrift.com) soon.

Article By:

Robert Lewandowski

 

White & Case Advises on Polish MoF €2 Billion Green Bonds Issuance

Global law firm White & Case LLP has advised the Polish Ministry of Finance on the €2 billion issuance of ten- and 30-year euro-denominated ‘Green Bonds’, maturing respectively on March 7, 2029 and March 8, 2049.

The €1.5 billion issuance of the ten-year Green Bond yields 1.057% with an annual coupon of 1%. The €500 million issuance of the 30-year Green Bond yields 2.071% with an annual coupon of 2%.

The bonds were issued under the Republic of Poland’s €60 billion Euro Medium Term Note Programme, and the proceeds will finance environmental projects according to the Green Bond Framework developed by the Ministry of Finance in line with the ICMA Green Bond Principles.

The buyers of the ten-year and 30-year Green Bonds were well diversified with, respectively, 47 percent and 43 percent of the allocations going to designated green accounts.

The White & case team which advised on the transaction was led by local partner Andrzej Sutkowski (Warsaw), with support from counsel Doron Loewinger (London) and associates Katarzyna Grodziewicz, Damian Lubocki (both Warsaw) and Luiza Salata (London).

EU launches new infringement proceedings against Poland

The European Commission on Wednesday launched infringement proceedings against Poland by sending a Letter of Formal Notice regarding its new disciplinary regime for judges.

The notice alleges that the new regime “undermines the judicial independence of Polish judges by not offering necessary guarantees to protect them from political control, as required by the Court of Justice of the European Union.” Poland has two months to reply.

The Commission alleges that Poland has failed to meet its obligations under Article 19(1) of the Treaty on European Union and Article 47 of the Charter of Fundamental Rights of the European Union, which preserve the right to “an effective remedy before an independent and impartial court.” The Commission alleges that Polish law “allows to subject ordinary court judges to disciplinary investigations, procedures and ultimately sanctions, on account of the content of their judicial decisions.”

In addition, the Commission alleges that Poland’s regime does not ensure that a court can decide in first instance on disciplinary proceedings against ordinary court judges, because it gives the power to the President of the Disciplinary Chamber to determine the disciplinary court of first instance to hear a given case, “on an ad-hoc basis and with an almost unfettered discretion.”

The Commission is also of the opinion that Poland has failed to fulfill its obligations under Article 267 of the Treaty on the Functioning of the European Union (TFEU), which ensures courts’ right to request preliminary rulings from the European Court of Justice.

The EU’s concern about Poland not adhering to EU’s principles on rule of law is increasing. Last December the European Court of Justice ruled that Poland must “immediately” suspend the national legislation which lowered the mandatory retirement age for its supreme court judges.