The accession of Poland into the European Union on 1st of May 2004 and the introduction of a free movement of people and capital connected with it had a massive impact on legal services in Poland. We as lawyers did everything to be prepared for those changes in advance. [Read more.]

Imagine you have your great plans, you want to change your life, you want to start a brand new life. Then the unthinkable can happen and just in the blink of an eye an accident can ruin completely all your plans. This is what happened to one of our client, Marcin (name changed).

Just a few days after his arrival to the United Kingdom, where he moved to look for a job, he was involved in a road accident. The driver of the vehicle he was travelling on was killed. He sustained a severe traumatic brain injury, possible hypoxic brain injury, fractures of his sternum, ribs, pelvis and lung contusions. Consequently, he has reported serious neuropsychological deficits including personality change, behavioural and mood difficulties, combined with fatigue. The neurologists foresee only minor possibilities of recovery: he will never be able to live independently again and will always need support. He is partially incapacitated and his mother acts as a guardian. In fact, Marcin is like a fourteen-year-old kid in the body of an adult.

Marcin reached a settlement with the insurer in the United Kingdom, which gained the approval of the UK Royal Court. After having assessed numerous expert reports confirming the abovementioned damage to Marcin, the insurer agreed to pay various lump sums for compensation, for a total about £1,800,000 plus a yearly payment of about £60,000 until the rest of his life.

You may think now that Marcin has received a significant amount of money. Well, you are wrong. Totally wrong. This money cannot compensate the fact that Marcin will never be able to live a normal life, the same as we do. Marcin will always depend upon someone, because is not able to manage with the easiest daily activities. Right now he depends on his parents. Who will take care of him when they leave? I can tell you that his mother told me once that she would give back all that money to go back to their previous and peaceful life…

The abovementioned case is connected with the other domain of our law firm that is personal injury cross border cases. I invite you to visit our personal injury blog:

Despite numerous attempts to unify the legislation of Member States of the European Union, there is no doubt that some differences continuously occur and that regulations are markedly different from each other. Hardship clauses are one of such areas. Together with a group of my colleagues from the EUROJURIS INTERNATIONAL CONTRACTS & Litigation Group we have recently made a comparison of such provisions in the national legislation of the Member States. The result of our work is an article: HARDSHIP PROVISIONS & HARDSHIP CLAUSES IN INTERNATIONAL BUSINESS CONTRACTS, which can be found under the link

If you are a foreign entrepreneur and your contractor is a Polish firm you might face certain problems with debt collection in Poland. Especially if your contractor has estate in Poland, you may need to start enforcement proceedings by the Polish bailiff. If you have already received a judgment of the court of your country, now you want to receive your money from the debtor. Given that the judgment you possess was passed in one of the EU-countries the enforcement proceedings in Poland might be really easy, particulary if the court proceedings in your country was instituted on or after 10 January 2015. In such a situation most likely you will be able to act upon Regulation (EU) No. 1215/2012 of the European Parliamet and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters which provides that a judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required.

The above mentioned Regulation has introduced a great convenience in debt collection within the EU, as you do not have to ask the Polish court for granting an enforcement clause onto the foreign judgment. In practise it means that enforcement of the foreign judgment issued in the other Member State will be automatically enforced in Poland. Even to us, lawyers who got used to long and complicated court procedures, and to bailiffs as well, it is a novelty to have such a simple procedure at hand. When the debtor has got funds in a bank account, it is possible to have the enforcement procedure completed in such a cross-border case in less time than a month.

The solution presented above has indeed already been known from the Regulation (EC) No. 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims. However, application of the Regulation (EC) No. 805/2004 is severly limited, therefore, I am sure that application of the Regulation (EU) No. 1215/2012 shall be certainly much greater.

How about a discussion about a set-off? You may ask why, and the answer would be that it is a very important issue. You may say that a set-off is such a popular problem that you know everything about it. Of course, I totally agree, but… are you sure? Are you sure which law shall be applicable for the set-off of claims concerning a supply agreement between Polish and Dutch business entities?

The Dutch supplier was the manufacturer of the products, which the Polish customer was using in his manufacturing processes. Parties did not conclude any written contract. The cooperation was successful until any defects appeared in the supplied goods. The customer suffered damage and decided to set-off his claims with the payment due to the supplier. And now for the focal point of the issue. Which law will be applicable? Polish or Dutch? The answer is not certain at all!

First of all we should consider where we can find any hint to solve our problem. So? Any suggestions? Of course! Regulation (EC) No 593/2008 of The European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), Article 17! The article 17 of Rome I says that…

“where the right to set-off is not agreed by the parties, set-off shall be governed by the law applicable to the claim against which the right to set-off is asserted.”.

Here we have our hint! If we want to find an applicable law for the set-off, first we need to define the applicable law for the claims of the supply agreement (the payment due to the supplier). Why? Because – according to the article 17 of Rome I – it is the claim against which the right to set-off is asserted.

While we successfully passed the first step, another problem appeared. In the whole Rome I there is no mention about supply agreement. Article 4 mentions about the sale, provision, distribution, franchise etc., but not about the supply. What does it mean? Is the supply agreement not taken into account in Rome I? Of course it is. Why do I think so? Because according to article 3 of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG; the Vienna Convention) contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production. In other words, because in our case the customer did not deliver to the supplier any materials, we shall consider the supply as the sale. Poland and Netherlands are parties of the Vienna Convention and owing to this fact we shall apply it.

Then, we have a straight way to find the applicable law, because either we decide to apply article 4 point 1 a) of Rome I (which is a general rule) or article 4 point 3 of Rome I. In the event that we decide to follow the general rule, a contract for the sale of goods shall be governed by the law of the country where the seller (in our case the supplier) has his habitual residence (Netherlands). Therefore, the applicable law shall be the Dutch law.

However, under article 4 point 3 of Rome I we can try to showcase that the applicable law shall be different than the law indicated by the general rule, because the supply agreement is a manifestly more closely connected with this law. Nonetheless we cannot forget that the notion of “the manifestly more close connection” is very indeterminate. Therefore if we want to demonstrate that in our case the supply agreement is more connected with the Polish law, we should indicate specific circumstances, which lead us to this conclusion. For instance, it could be a strict connection of the supply agreement with the other agreement for which parties have explicitly chosen the Polish law. Another example could be a situation that the main part of the supply could be performed in Poland. In my opinion the abovementioned examples could be used as arguments to claim that the supply agreement has “a manifestly more close connection” with the Polish law.

What needs to be emphasized is that we have been deliberating about the general example. But as you can see, there is no certain answer for our initial question about the applicable law for the supply agreement between Polish and Dutch entities. Everything depends on specific circumstances and that is the beauty of the law – we never have certain answers, even if something seems so easy and clear.