Commission Report (2002): Poland

• Progress since the last Regular Report
• Overall assessment
• Conclusion

Chapter 5: Company law

Progress since the last Regular Report

Since last year's Regular Report, Poland has made further progress with regard to company law and the protection of intellectual and industrial property rights. Legislative progress had been greater than progress in enforcement and implementation. This continues the steady pace observed since 1997.

Regarding company law as such, an amendment to the Law on the National Court Register (for registration of businesses and companies) has simplified the formal requirements for applications; the elements relating to the registration of natural persons will come into effect in January 2003.

As regards accounting, there have been no legislative developments to report. However, in June 2002 a new Control Commission was appointed within the Chamber to control the work of auditors.

In the field of industrial and intellectual property rights, two amendments to the Law on Industrial Property Rights were adopted and came into force. These introduce legal protection of biotechnological inventions and designs, removing the ban on sub-licensing and providing that the Supplementary Protection Certificates will apply to any product which, on the date of accession, is protected by a valid patent and for which the first market authorisation was obtained after the beginning of January 2000. An application for a certificate will have to be submitted within six months of the date of accession.

In March, the Government adopted a report prepared by the Committee on the Protection of Copyright and Related Rights. The report shows that between 1995 and 2000 a sizeable (twenty-fourfold) increase occurred in the number of crimes against intellectual property detected by the police. Preliminary data suggests that these figures have levelled off during the reporting period. Prison sentences and fines remain relatively low: in 2000 only 7.2% of custodial sentences exceeding one year and 88% of fines being under 2000 Zloty. (EUR 499).

Overall assessment

An analysis of Polish company law shows that some inconsistencies with the acquis remain (e.g. court fees for copies from the register have to be just cost-covering). The Polish law on auditors does not specify the subjects to be included in the qualifying examination as set out in Article 6 of the 8th Directive. As far as administrative capacity is concerned, training for judges and administrative staff needs to be intensified. The average time for entries in the company register needs to be shortened.

In the field of industrial and intellectual property rights, the protection of copyright and related rights has to a large extent been brought into line with the Community acquis, notably through amendments to the 1994 Act on Copyright and Related Rights in 2000 and the introduction of the Law on Database Protection in 2001. The Directive on legal protection of biotechnological inventions and the designs Directive remain to be implemented. Some additional adjustment of trademark legislation will be necessary upon accession. Poland has not yet acceded to the two 1996 WIPO Treaties. A new amendment to the Act on Copyright and Related Rights is being prepared in view of the new Internet environment, to address collective management of copyright and related rights and to introduce Community exhaustion. This amendment should also take due account of the acquis with regard to the Copyright in the Information Society Directive.

Substantial changes are still necessary to align legislation with the acquis on legal protection of design as well as with the Copyright and Neighbouring Rights in the Information Society Directive and the Resale Directive.

Improvement of collective management is an important challenge in the years to come. At present, 13 collective management organisations are active in Poland. Collecting societies are playing a fundamental role, but there is too much overlapping of competence and permissions.

Piracy remains a matter of major concern. In 2001, pirated software was estimated by the industry as being at 53% and pirated music at 30%. Despite good police co-operation against piracy, Warsaw's ``Stadion Dziesieciolecia'', one of the largest open-air flea markets in Europe dedicated to illegal software, music and video products, remains a source of rampant piracy.

Further efforts are required to strengthen law enforcement capacity, especially as regards border controls and combating piracy and counterfeiting. Particular attention should be paid to the effectiveness of the administrative and judicial bodies involved in enforcement, such as the customs services, the police and the judiciary, in particular by improving co-ordination among them. Targeted training for both copyright officials and enforcement officials, including judges and prosecutors, should continue.

Concerning the Regulation replacing the Brussels Convention on jurisdiction and enforcement of judgements in civil and commercial matters and the Rome Convention on the law applicable to contractual obligations, the Government is in close contact with the judiciary for the designation of the relevant courts which will have to deal with applications and appeals. Further efforts are required to ensure full implementation of the Convention (see also Chapter 24 -- co-operation in the fields of justice and home affairs).

Conclusion

In its Opinion of 1997 the Commission concluded that Company law would not provide an obstacle to accession, assuming that existing plans were fulfilled. In accounting, no major problems were foreseen. As regards data protection, it was underlined that effort would be needed to fill the legislative gap. The Opinion concluded that Poland should be capable of adopting the intellectual and industrial property acquis, while underlining that special attention would be required to ensure that the measures adopted in this field were effectively implemented. The importance of implementing the provisions of the Europe Agreement was recalled.

Since the Opinion, Poland has made steady progress in aligning company law, and has in the last two years also aligned its laws on trademarks and patents with the acquis. Poland has to a large extent achieved alignment with the acquis in the area of company law, and transposition in the field of industrial and intellectual property rights is continuing at a steady pace. Gradual progress has been made with strengthening administrative capacity which has achieved a reasonable level with the possible exception of intellectual property enforcement.

Negotiations on this chapter have been provisionally closed. Poland has not requested any transitional arrangements in this area and has agreed to a proposal put forward by the EU regarding industrial property rights for pharmaceutical products and Community Trademark. Poland is generally meeting the commitments it made in the accession negotiations in this field.

In order to complete preparations for membership, Poland's efforts now need to focus on ensuring full alignment with the acquis along the lines set out above, intensifying measures to combat piracy and counterfeiting, strengthening border controls and, more broadly, further improving co-ordination between enforcement bodies (customs, police, judiciary).

---

Next: Chapter 6: Competition policy
Up: 3.1. The chapters of the
Previous: Chapter 4: Free movement of