On the edge – what does the Shield change at the same time?
Alike the text of the Act of 31 March 2020, commonly called “Anti-crisis Shield”, the draft text of “Shield 2.0”, in addition to regulations dealing strictly with the issue of protection of entrepreneurs and employees, contains many regulations dealing with issues often not directly connected with the epidemic. The text deals with “accompanying” legal changes that should not skip the attention of the reader.
Electronic delivery of documents
Pursuant to Shield 2.0 it is until 20 September 2020 that an alternative, electronic mail delivery will be possible to be made. Theoretically, the date of mail delivery is “the date at which the recipient makes himself or herself familiar with the document put in the addressee’s electronic mail box”. At the same time the document is deemed finally delivered after 14 days following the date at which it is put in the electronic mail box. The addressee must give consent and authority to the operator to make a receipt of registered mail in order to process and deliver it as electronic document to the addressee’s electronic mail box. These rules will not, however, apply to the correspondence made with participation of courts, investigation bodies or court enforcement officers.
Realistic approach to delivery
It is provided that traditional mail delivery to the addressee be ceased where it is unrealistic to acknowledge the delivery of letters subject to delivery upon return receipt by the mail operator without not having been collected by the addressee and that cannot be deemed to have been delivered during the state of epidemic risk or epidemic and before the lapse of 14 days following the date of having those states revoked. Shield 2.0 also provides several exclusions which pertain to among others sending letters to and from courts and tribunals, prosecutor’s offices, other investigation bodies or court enforcement officers. The interpretation of the current wording of the provision should be made on the assumption that the legislator’s intention is to cover with special system the correspondence made directly between entrepreneurs and clients (for example the correspondence regarding requests for payment).
Shield 2.0 grants the Prime Minister a new right to introduce an additional statutory holiday by resolution. However, this may be done exclusively in the event of announcement of the state of epidemic risk or state of epidemic.
Access to critical infrastructure
The owner of “critical infrastructure” (e.g. of telecommunications services, electricity, water, heat, petrol, fuel, gas supply or sewage disposal facilities) situated, entirely or partly, on the real property belonging to or being in possession of third parties, may during the period of epidemic risk, epidemic or the state of emergency, request the chief of the Police having jurisdiction over such location to provide Police assistance in enabling entering the real property, including the building. This right covers the situation in which it is impossible to contact the property owner or manager.
Reimbursement of funds within 180 days
The Act extends the circle of the entrepreneurs whose time-limit for reimbursement of funds paid by clients has been extended to 180 days following the effective termination of the contract, in the event of termination of the contract with the client that is directly associated with the negative impact of COVID-19. Now, the subject-matter scope of the provision covers, in addition to entrepreneurs conducting business involving organization of exhibitions and congresses (as has been the case now), also those entrepreneurs who conduct business involving enabling access to premises and spaces for among others fair events, trainings, conferences or examinations. The scope of that provision continues to cover also entrepreneurs conducting business in cultural, entertainment, recreation and sports areas or in organization of specified subject matter exhibitions or out-door events. The above-said entrepreneurs may also provide clients with vouchers in return for the clients’ resignation from cancelling the contract. More about it HERE.
A person who in the interest of the public performs the obligations and tasks involving combating consequences of COVID-19, including social and economic ones, those obligations having been imposed on the entity represented by him or her by a legislative act or on the ground of the agreement executed under the legislative act on the development institutions system, if driven by the intention to counteract those consequences, does not commit an offence as that described in Criminal Code art. 231 (going beyond the scope of authority) or Criminal Code art. 296 (causing damage in business transactions), a tort, disciplinary tort or an act of breach of public finance discipline.
Shield 2.0 enables the subscriber to use the websites of the public finance sector or other websites, listed by the minister competent for the implementation of information technology. This will not affect the subscriber’s limit of data transmission within the package selected by the subscriber.
Access to telecommunications data; anonymization
During the period of epidemic risk, epidemic or natural disaster, the telecommunications operator is obligated to give the minister competent for the implementation of information technology an access to the data concerning the location, during the period of the past 14 days, of the telecommunications facility belonging to the end user with a contagious COVID-19 disease or quarantined.
Additionally, upon request of the minister competent for the implementation of information technology, the operator is obligated to provide, in the manner and form determined by the minister, for the purpose of combating COVID-19, during the state of epidemic risk, the state of epidemic or the state of natural disaster, anonymized data concerning the location of the end-users’ facilities. The Act does not precise the scope of anonymization or the details concerning its carrying out. The consent for processing and giving access to data is not required.
New dentists’ tasks
The voivode has the right to appoint doctors or dentists for determining the deaths of persons suspected of infection with SARS-CoV-2 or infected with the virus outside hospital.
Absence at court without court doctor’s certification
Irrespective of the fact that during the COVID-19 epidemic, the majority of dates fixed for court hearings (save for urgent cases) have been cancelled, the legislator provided the persons summoned to appear with a significantly easier possibility to excuse a potential absence. Failure to appear at court during the period of COVID-19 epidemic risk or the COVID-19 epidemic does not require a court doctor’s certificate.
Limited rights of drone operators
Shield 2.0 provides that operation of unmanned aerial vehicles may be performed only after informing the Polish Air Navigation Services Agency about the intention to make a flight with use of special telematics system. The legislator provides a possibility for the Agency to take over all author’s financial rights held by the owner in telematics systems serving coordination and management of flights made by unmanned aerial vehicles in Polish airspace. The taking over of the rights concerns all fields of exploitation indicated in the Act on Copyright and Related Rights. The taking over becomes effected as of the moment of making to the rights holder a declaration of intent to take them over; however it is to be made upon consideration corresponding to the book value of the asset as at the declaration date.
Eviction of domestic violence perpetrators
Although as a rule during the state of epidemic risk or the state of epidemic announced due to COVID-19, enforcement orders are not executed in the case of emptying an apartment, that rule does not apply in the case of decisions made on the basis of the Act on Preventing Domestic Violence.
Powers of railroad guards
New law adds the right of railroad guards to check identities and stop individuals with symptoms of contagious diseases and individuals who stayed in the presence of individuals showing such symptoms, in order determine their identities. A person who does not respect the orders covering the railroad area may be fined.
Changes in the Electoral Code
Shield 2.0 provides changes in the electoral procedure. During the state of epidemic risk or epidemic, at holding general elections of the President of the Republic of Poland ordered in 2020 some provisions of the Electoral Code will not be applied, including those involving voting by proxy, the competence of the National Electoral Commission to determine the specimen ballot paper or to order printing thereof.