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We are pleased to announce that yesterday there was a favorable verdict for our client in a payment case involving a factoring agreement against a bank as a factor. The case involved fully insured factoring, which, in addition to financing receivables, involves the factor assuming the risk of non-payment for the transaction in cooperation with the factor’s insurer. The client submitted a French counterparty for factoring, claiming to be responsible for supplying goods to a French grocery chain. The client had not worked with this counterparty before and wanted to use the professional services of a factor who claimed to specialize in verifying counterparties and ensuring the security of transactions. The transactions were approved by the factor, and the goods were shipped to France. It was only after the fact that the client discovered that he had been the victim of a distribution scam and had shipped the goods to an entity that merely impersonated a supplier to a French chain store and never received payment for the goods. The client believed that the factor was liable for the loss of the client’s failure to receive payment for the goods because the client relied on the factor to verify the security of the transaction – if the factor had not approved the transaction, the client would not have chosen to ship the goods to France. The factor evaded liability in its entirety, pointing out that assumption of risk does not apply in cases of fraud, and maintained that the factoring agreement did not obligate the factor to conduct a detailed verification of the counterparty, and that the factoring agreement does not relieve the client of the obligation to verify counterparties on its own. In the course of the proceedings, we demonstrated what the purpose and essence of the insured’s full factoring was, and that it was the factor’s primary burden to verify the credibility of the counterparty before including the receivables in the factoring, and pointed out the steps that the factor should have taken for this purpose, which it failed to do. The court agreed with our arguments and took the position that a proper interpretation of the contract, taking into account the purpose and essence of the insured’s full factoring and the circumstances of its conclusion, justified the acceptance of the factor’s liability for the resulting loss at 50%. The court ruled that the customer (as a businessman) and the factor are half responsible for the damage to the customer in the form of non-payment for the goods. The case was handled by attorney Monika Mierzejewska of our law firm. The case was conducted by the District Court in Warsaw, XXVI Commercial Department under case number XXVI GC 971/22. The judgment is not final.

There are heavy administrative fines for payment backlogss. 🔹 As of the beginning of 2023, new regulations on penalties for excessive delays in commercial transactions are in force. Currently, the President of the Office of Competition and Consumer Protection no longer has the authority to waive the imposition of a fine in a situation where the sum of receivables not paid or paid late during the period under investigation is higher than the sum of liabilities not paid or paid late during that period. The above change negatively affects the situation of many entrepreneurs who, in the previous state of the law, often “saved themselves” with this premise and thus avoided high administrative penalties. 🔹 According to the law, excessive delay in the fulfillment of pecuniary benefits occurs when, over a period of 3 consecutive months, the sum of the value of due pecuniary benefits unfulfilled and fulfilled after the deadline by this entity amounts to at least PLN 2,000,000. Taking into account the fact that to the above “pool” of benefits are taken into account all benefits delayed (even by 1 day), it is not difficult for many entrepreneurs to meet the above premise, and consequently expose themselves to the risk of proceedings before the OCCP. 🔹 The amended law also introduced the institution of a “soft speech” (along the lines of antitrust and consumer proceedings) to the so-called congestion proceedings, with which the OCCP President may address the entrepreneur pointing out irregularities and expecting improvement in this regard, without simultaneously initiating administrative proceedings. The above will perhaps reduce the number of initiated proceedings that could end in a fine. 👉 At Markiewicz Sroczynski Mioduszewski we help entrepreneurs in obstruction proceedings, so we are curious to see the further development of the jurisprudential practice of the President of the OCCP in this regard.

This time in Rzeczpospolita, Dr. Michal Markiewicz writes about music, more specifically, song and its special protection. Why is it special? Well, it is an example of an intellectual good that is protected by at least several independent rights that may arise in favor of different entities. Legal exploitation of a song, as a rule, requires obtaining consent against each of the rights that arise (except, of course, for the exceptions provided for in fair use provisions, such as the right of quotation). In addition to pointing out the rights that arise, the text describes, among other things, what mechanisms are in place to facilitate the conclusion of the relevant agreements and how to “circumvent” the protection provided by related rights. Publicly available excerpt from the article: https://archiwum.rp.pl/artykul/1502661-Prawa-autorskie-to-nie-wszystko-Co-chronimy-w-muzyce.html

NOMINATION IN GCR 100 2024 RANKING! MSM Law Firm has again been recommended by Global Competition Review among the world’s 100 competition law practices 🏆 ➡️ More about GCR: https://globalcompetitionreview.com/survey/gcr-100/20th-edition

In the second part of the text on the law.pl portal, about the bad Polish draft transposition of Directive 2019/790 on equitable remuneration, Prof. Ryszard Markiewicz confronts the special privileging of creators of streaming works on the Internet with their full “oblivion” in the rest. “5 minutes about IPR” is a joint initiative of Markiewicz & Sroczynski GP and Wolters Kluwer Polska, entirely devoted to issues related to intellectual property law (i.e.: copyright, industrial property and combating unfair competition). The “5 minutes about IPR” texts will appear at least twice a month. The premise here is to take you 5 minutes to pay attention to something we are passionate about and you will be interested in. The articles will therefore be short, clear and, if possible, also “illustrated”. We would like “5 Minutes on IPR” to become a source of knowledge about important changes and rulings, an inspiration for discussion, and a source of new, including controversial, interpretive ideas. Above all, however, we hope that it will be simply interesting. Publicly available excerpt from the article: https://www.prawo.pl/biznes/wynagrodzenia-tworcow-audiwizualnych,519425.html?fbclid=IwAR00nzopFT0-xl8KF7m73G1pDASoSRorJBjbizzaWPJiyYIWllrDKV-mY2s

In today’s issue of Rzeczpospolita, Dr. Michal Markiewicz points out the problem of distributing works on the Internet, in particular focusing on the controversial case law of the EU Court of Justice on linking. What are the dangers of “sharing” content on social networks? We invite you to read the latest text. Publicly available excerpt from the article: https://www.rp.pl/biznes/art37947551-linkowanie-czy-przedsiebiorca-jest-bezpieczny-w-internecie?fbclid=IwAR3vKE4JZ9dWsOCDgFmzHGAZmPVdJ3Il1XweMBEIXYgERwqETirtrykIq7Y

In today’s Rzeczpospolita, Dr. Michal Markiewicz writes about the importance of the rulings of the Court of Justice of the European Union and the General Court (General Court) for the application of law, particularly domestic law. We invite you to read it. Publicly available excerpt from the article: https://archiwum.rp.pl/artykul/1490538-Unijne-prawo-i-jego-wplyw-na-krajowe-rozstrzygniecia.html?fbclid=IwAR2b3bwAVFK1ctTSMAY_hodmfley_6NNZcdcsJB0u3kf8molkZagiKGWFkA