most interesting rulings | In Principle

In the judgment of 26 April 2019 (case no. V CSK 80/18), the Supreme Court of Poland held that it is not contrary to the nature of a construction contract to condition the payment of fees on the absence of defects in the structure. Therefore, the parties’ terms requiring payment only after a faultless handover protocol has been obtained are permissible. However, in the Supreme Court’s opinion, such objections may also be included in the terms of the handover protocol. The court approved the possibility for the parties to invoke reservations made in the handover protocol, which constitute additional provisions in relation to the contract.

In a judgment involving compensation under an insurance policy, the Supreme Court of Poland has held that a pro rata provision was invalid because it was disadvantageous to the insured and was included in the insurance conditions unilaterally by the insurer as the party with the stronger contractual position.

In the tender documentation, the contracting authority may require contractors to meet certain conditions for participation. These should be precise and duly described so the contractors can adequately demonstrate their fulfilment. But what if the contracting authority has not precisely defined a condition for participation in the procedure? In its ruling of 3 July 2020 (KIO 1001/20), the National Appeal Chamber held that the interpretation of the condition more favourable to the contractor should be applied.

Several contractors apply together for the award of a public contract. Can they submit a bid bond in the form of a bid bond guarantee that does not name all of the members of the consortium? This issue has been, and remains, the subject of debate in the legal literature and case law. Taking a position in this debate, in its ruling of 31 July 2020 (case no. KIO 1183/20), the National Appeal Chamber stressed that the decisive role is played by the wording of the guarantee itself, which must unequivocally specify the scope of liability of the guarantor (e.g. bank, insurance company, or corporate guarantor) in terms of which entities and subject matter are covered.

For years, film distributors have been fighting against illegal sharing of movies on the internet. The enforcement of rights before the courts is hampered in particular by the functioning of the platforms on which the films are posted, including the users’ relative anonymity. In a recent judgment, the Court of Justice of the European Union held that YouTube and Google are not obliged to turn over data to holders of IP rights allowing them to identify users who have infringed their rights. Which data? More below.

The “self-cleaning” procedure set forth in Art. 24(8) of the Public Procurement Law allows a bidder to seek the award of a public contract despite the existence of grounds for exclusion. But what evidence of self-cleaning should a contractor present for the effort to be effective? In the recent ruling of 31 July 2020 (case no. KIO 1248/20), the National Appeal Chamber held that contractors are not only required to show the personnel, organisational and technical measures they have taken to remedy past irregularities, but must also show that these measures will prevent similar violations in the future.

The Supreme Court of Poland has recently issued several rulings on setoff (Civil Code Art. 498), confirming the existing line of case law and the established legal and commercial practice. The regulations on asserting the defence of setoff in civil proceedings have also been amended.

Many contracts provide for a contractual penalty for reputation of the contract due to the other party’s fault and a contractual penalty for delay in performing the contract. But in such cases can both of these penalties be pursued simultaneously?

Can a summons for clarification of an abnormally low price be used with the aim of obtaining information from the contractor to verify whether the tender complies with the terms of reference for the procurement? What duties must the contracting authority observe, and when can it summon a contractor to provide an explanation? These issues were addressed in a ruling by Poland’s National Appeal Chamber of 16 June 2020 (case nos. KIO 709/20 and 715/20). The chamber considered the specific purpose of the summons for clarification.

It is permissible to agree on a contractual penalty for non-payment or late payment of fees due to subcontractors, the Supreme Court of Poland held in its resolution of 30 June 2020 (case no. III CZP 67/19).

In recent months, perhaps more than ever, life has moved online. Some people spend their time reading e-books or playing video games. Can they later resell or exchange such “used” works? A recent ruling by the Court of Justice throws into doubt the secondary trading in digital goods.

If a rental car is equipped with a radio, should the rental company pay royalties to a collective rights management organisation? The Court of Justice recently addressed this issue.