The International Hotel Law Review: Poland
In 2016, a rapid expansion of the hotel sector took place in Poland. But this changed in 2017 and 2018 when the number of new hotels fell considerably.2 However, in 2018 and 2019, some sector growth was seen in increasing the number of rooms and in higher segments, as most investors tended to invest their funds in three, four and five-star hotels.3 In recent years, the Polish hotel market has received a lot of attention from international hotel chains. New brands have been introduced, and those brands already present have brought in their latest-generation products. An interesting phenomenon is the growing interest taken by international hotel chains in investing in the main regional markets. In the past few years, many chains have opened facilities in smaller towns, and have planned a large number of new investments for these areas, mainly on the basis of a franchise scheme.4
The hotel industry market in Poland changed suddenly owing to the covid-19 pandemic. The pandemic has affected every sector of business around the world, but the hotel industry has been among the hardest hit.
After the official announcement of the covid-19 pandemic in Poland in March 2020, 84 per cent of Polish hotels stopped their operations, and at the end of June one in five still remained closed. Under the official limitations introduced, most hotels were closed from the end of March 2020 to the beginning of May 2020. However, restaurants, bars, swimming pools and spa facilities remained closed for an even longer period, mostly until June 2020. Currently, the operation of hotels during the covid-19 pandemic requires special safety rules, which are associated with increased costs.
As a result of the pandemic, almost 60 per cent of hotels have lowered their prices, despite the higher operational costs connected with the introduced sanitary restrictions. According to the Chamber of Commerce of the Polish Hotel Industry, over 93 per cent of hotels have applied for state aid, but the majority are still facing difficulties with maintaining financial liquidity and do not anticipate any profits in 2020.5 Owing to the pandemic, clients' preferences have also changed, as hotels connected with agro-tourism in small resorts outside cities have started to become increasingly popular with Polish tourists.
Many hotel owners have been forced to make collective redundancies. Due to covid-19, the terms of many agreements connected with hotel operation (e.g., lease agreements or hotel managements agreements) have been renegotiated, in particular the statutory provisions regarding 'force majeure' and 'rebus sic stantibus', as well as contractual regulations relating to the possibilities of their termination or temporary suspension, as well as provisions concerning payment obligations and its reduction.
In Poland, special rules apply for foreigners wishing to acquire real estate, in particular, those set out in the Act on Acquisition of Real Estate by Foreigners.6
A foreigner is understood, inter alia, to be a legal person whose registered office is located abroad, a legal person and an unincorporated commercial partnership whose registered office is located in Poland, directly or indirectly controlled by a natural person who is not a Polish citizen, by a legal person with it registered office located abroad, or by a partnership of the persons mentioned above with registered offices located abroad, established in accordance with the legislation of a foreign country.7
In principle, acquisition of real estate by foreigners requires a permit (administrative decision) issued by the minister in charge of internal affairs.8 However, since Poland's accession to the European Union, this general rule that requires obtaining a permit does not apply to foreigners whose registered office is located in the European Economic Area or in the Swiss Confederation.9
Many foreign investors, including those from the hotel sector who are obliged to obtain a permit to acquire real estate, find the Polish procedure to acquire real estate to be lengthy and complex. Some of the main barriers to entering the market include the fact that the permit is issued for a particular property only, as well as the requirement to obtain a declaration from the current owner that he or she agrees to sell the property to the applicant (investor) (along with taking steps to avoid the situation where the seller walks away from the transaction).
Foreign exchange law regulates cross-border foreign exchange dealings and dealings in foreign exchange values in the country, as well as economic activity in the scope of purchasing and selling foreign exchange values, and intermediation in purchases and sales.
In general, investors are permitted to conduct foreign exchange dealings, subject to very few limitations mainly as to investments made in the third-country (states other than European Union Member States and their dependent, autonomous and associated territories, as well as dependent, autonomous and associated territories of European Union member States), investment made by investors from a third-country in Poland, or as to financial settlement between Polish entities and third-country investors of states other than European Union Member States and their dependent, autonomous and associated territories, as well as dependent, autonomous and associated territories of European Union Member States. The limitation applies to, for example, transfer by the non-resident to Poland: debt securities with maturity dates shorter than one year, except for those acquired in Poland; and receivable debts and other rights exercised through financial settlements, except for those acquired in Poland.
There is no tax limitation as to the hotel sector. The potential investor must consider the following issues: investors from the given states, especially outside the EU, must have a corporate presence in Poland, and the investment in Poland without a corporate presence may create a permanent establishment, which will have an impact on taxation in Poland with corporate income tax, and can also impact on the place of taxation in VAT.
In Poland, hoteliers can hold legal title to hotels based on:
- property ownership;
- perpetual usufruct right to the property owned by the State Treasury or self-governmental public unit (long-standing use right, similar to ownership);
- shares of the company that owns the hotel; or
- a lease agreement of the property or hotel enterprise.
Before acquiring the land many investors decide to conduct legal and environmental due diligence analysis of the property to verify, for example, the legal title (if there are no claims of prior property owners), limitations resulting from the zoning provisions (e.g., in respect of land development) and the local law, monuments and environmental protection (in the scope of contamination, protected flora and fauna, or if the property constitutes a nature reserve site). Legal, environmental, technical and financial due diligence conducted by the potential buyer or the financing bank, is also market standard if the property is already developed with an operating hotel.
Agricultural properties are particularly protected in Poland, and there are several restrictions to their purchase, unless the land is designated as non-agricultural in the zoning plan.10 A perpetual usufruct right may also impose certain restrictions on property development.11
During the construction process investors should obtain certain permits (in most cases environmental, zoning, building and occupancy permits). The hotel itself has to fulfil certain sanitary, construction and fire-prevention obligations, as well as offer particular services specified by law to be classified and categorised by the authority as a star hotel, which allows for the entry into the hotels register required to commence hotel activity.12 The public list of buildings classified as hotels is maintained by the Ministry for Tourism and can be found on the website.
Polish hoteliers in cities often use outsourcing as a way to reduce costs and as a business model (in particular, cleaning, maintenance of green areas and recreational facilities, washing, security, monitoring, IT, HR and accounting services, as well as food supplies). Agreements with service providers should ensure that all staff are highly qualified (specific features of staff or equipment used should be indicated, e.g., good command of foreign languages, experience with working with hotel clients).
A transaction worth mentioning was the purchase by Invesco Real Estate from the French investment fund Algonquin, of the five-star and 232-room hotel Sheraton Grand Kraków, one of the best and the most profitable hotels located near the Old Town in Cracow, Poland. The hotel was sold for €270 million (€301,000 per room), which is €32 million higher than the price Algonquin paid for this hotel in 2013. The hotel was opened in 2004.13
Many investors unwilling to freeze their funds in the property opt for long-term lease, as in the case of Focus Hotels in Poland, which offers accommodation in many Polish cities.14 In this way, hotel owners are released from numerous obligations connected with conducting hotel business activity (transferred to the lessee) and receive guaranteed rent, often secured with a bank or insurance guarantee, which is important, in particular if the hotel activity is not their core business. Sale and leaseback transactions are also increasingly visible on the Polish hotel market.
Polish law distinguishes two forms of leases, each with different lease terms and legal provisions (with and without the right to collect fruits). The first (dzierżawa15) with the right to collect fruits is the most appropriate form in respect of hotels (lease of the property or the lessor's enterprise). The maximum lease term is 30 years;16 however, for fully equipped hotels, in practice leases are concluded for shorter periods (e.g., five years and later extended). Lease agreements concluded for a definite period give the stable right to use the property (only terminated in cases set out in the agreement). Agreements for indefinite periods are terminated relatively easily. In the case of public properties, the property leasing takes place via a public tender.
To secure title to the land, the lessee concludes the lease agreement with signatures certified by a notary to enter it into the property's land and mortgage register as rights encumbering the property, effective against third parties. This protects against lease termination in case of the property's sale by the new property owner, subject to sale in enforcement proceedings in case of the property owner's debts.17 The lease often includes a pre-emption right in favour of the lessee in the case of a property sale.
To avoid any disputes between parties the lease agreement should specify which entity is responsible for day-to-day maintenance, for providing the furnishings and other equipment, making the general repairs and repairs to structural parts. If this is not set out in the agreement, the lessee is generally responsible for all repairs and expenses.18 The lease agreement should also cover improvements after the lease term, otherwise the lessor may request the lessee to restore the leased object to its previous state at the lessee's cost.19
By way of example, this year, Dom Zdrojowy sp. z o.o., a four-star hotel located in Jastarnia at the Polish seaside, leased its assets for 10 years. Under the lease, the hotel's character must remain unchanged, and the lessee has assumed all contractual relationships, (i.e., continuing to work with the hotel's current employees as in this case the lease is treated as a transfer of the workplace).20
Intellectual property and branding
IP rights issues in Poland pertaining to the hotel industry are mainly related to trademarks, design rights, copyright protection of interior design, and the requirement to pay royalties to collective rights management organisations.
Regulations that constitute an IP law system regulating the hotel sector do not differ significantly from the EU legal system and are mostly harmonised. There are, however, some differences resulting from the national implementation of EU law, non-harmonised areas of law and local practice. Importantly, under Polish law, a sublicensee may not grant further sublicences.21 This provision applies to all IP rights registered with the Polish Patent Office (PPO) (patents, utility models, trademarks and registered designs). This limitation should be borne in mind especially when negotiating franchising agreements and associated licences.
The issue of interior design protection deserves special attention, having particular importance especially for chain hotels that invest heavily in branding and identification with a particular design. An interior architectural project can be protected in Poland under the authors' rights regime. To do so the project must meet the features of a work under the Act on Copyright and Related Rights,22 that is, that the work must have an individual character, which in the case of a discussed interior would rather be identified in a creative juxtaposition of the elements used. Usually, the interior design consists of elements that are widely available (wallpaper, brick, marble, tiles), which are recurrent, and it is a challenge to prove their individuality. In interior design, however, it is not the use of particular elements, but the creative selection and combination with other items that makes it possible to obtain copyright protection.
Alternatively, an interior in a hotel, such as a lobby or a room itself, can be protected as a registered industrial design with the PPO. In practice, this means that a registered industrial design protects the project against others from using a design in the trade whose external appearance gives the same general impression as the registered one.23 Importantly, the protection of industrial design is not subject to any restrictions based on the very nature of the protected product. Therefore, regardless of whether they are an architectural work or ready-made furniture, industrial designs are protected within the boundaries of their overall impression. However, it should be noted that the product features resulting solely from technical functions are excluded from protection.24
Finally, it is worth mentioning that the hotel's building, as an architectural object, may be protected under Polish copyright law as any other work. It is also good practice in contracts with designers to address the issue of exercising the author's non-transferable personal rights.
Data and hotel tech
The GDPR regulation25 is fully applicable in Poland.
Hotel owners are considered as data controllers (data owners). The franchisor or franchisee can be considered separate data controllers or joint controllers (depending on the internal arrangements or measures used). All data controllers must comply with the GDPR. Where the franchisor or franchisee are joint controllers, they need to conclude an agreement that describes their responsibilities.
The data (joint) controller must have a legal basis for processing. In the context of hotel activity several legal bases are possible, in particular, performance of the contract with the hotel's guests (for using basic identification and contact data, and charging fees), legitimate interest of the data controller (corporate guests), or explicit consent for special categories of personal data.
For marketing purposes, the hotel owner can rely on legitimate interest to promote its own products or services (except for direct marketing via email, SMS or phone, where separate opt-ins are required).
If the hotel owner uses operators or technology providers, they are considered data processors, and a data processing agreement should be concluded with them.
If the hotel owner wants to transfer data to third countries that do not provide adequate levels of personal data protection, an additional legal basis or safety mechanism is required, even if data are exported to a group company. These include concluding standard contractual clauses26 between the Polish exporter and importer in the third country, privacy shields for US-based importers, and binding corporate rules that are implemented in the whole group.
The Polish Data Protection Authority is now authorised to impose fines of up to €20 million, or up to 4 per cent of the total global turnover of the preceding financial year. As at August 2020, 10 fines have been imposed. Three legal acts are vital when discussing e-commerce in the hotel sector.27
When setting up an e-booking platform, operators need to implement terms and conditions that will describe the e-services provided via the platform, as well as certain information that needs to be delivered to consumers when offering distance sales (prior to the conclusion of the contract).
Once the contract is concluded online, the platform operator needs to send a consumer confirmation of that contact on a durable medium (i.e., email) within a reasonable time. Contrary to the general rule, consumers do not have the right to withdraw from a distance contract in the case of online hotel bookings.
Franchising of hotels
Poland does not have any civil law franchise-specific legislation. Therefore, franchises in Poland are governed primarily by the general principles of civil law contained in the Polish Civil Code, whereas the provisions of the Polish Civil Code relating to specific types of agreements, regulated under the Polish Civil Code ('named' agreements; e.g., lease or agency agreements),28 as a rule, do not apply to franchise agreements.
In practice, franchise agreements are often structured so that the relationship between the franchisor and the franchisee contains elements characteristic for one or more named agreements. Should such elements prove to be dominant for a given legal franchise relationship, a court may find the provisions of the Polish Civil Code applicable for such a named agreement (especially, if such provisions are mandatory and aimed at protecting one of the parties)29 applicable to the franchisor–franchisee relationship.30 Therefore, each franchise agreement should be carefully examined from the perspective of the Polish Civil Code's mandatory provisions applicable to named agreements, to verify the exposure, and if possible, mitigate potential risks resulting from the potential application of such mandatory provisions to a franchise relationship.
Terms and conditions contained in franchise agreements can also be influenced by public law, especially Polish and EU competition law.
To some extent, franchising in Poland is influenced by the non-binding regulations of the European Code of Ethics for Franchising (the Code). The Code31 was issued by the European Franchise Federation (EFF) to promote a self-regulatory approach to the ethical business practice of franchising in Europe and to establish standards for self-regulation. It applies to both the relationship between franchisors and their individual franchisees (except master franchisee), and between the master franchisee and its sub-franchisees.
There are several franchise associations active in Poland, but only the Polish Franchise Association is a member of the EFF. Therefore, the Code is not binding on all franchise practitioners in Poland. However, owing to the significant authority of the EFF, the Code has a considerable influence on most Polish franchise market players.
In Poland there are no specific hotel franchising related legal issues. Some minor local anomalies can be observed with regard to IPRs and personal data protection. However, B2B agreements can be subject to any law or jurisdiction the parties wish, not necessarily Polish law.32
Hotel management agreements
Hotel management agreements (HMAs) are commonly used in Poland, especially in hotels operated under major brands, such as Marriott, IHG and Hilton. There is no specific legislation regulating HMAs under Polish law. In the case of international brands, HMAs are most frequently governed by English law. As to related agreements, such as IP licences, these are also often governed by UK law. Local brands prefer to have HMAs governed by Polish law, and with respect to IP licences the Act on Copyright and Related Rights applies.33
In general, the HMAs used on the Polish market are concordant with the prevailing standards used in the UK. However, particular attention must be paid to clauses relating to operators' rights with respect to management or hiring of personnel who are formally employed by the owner to avoid the risk of the hotel's personnel being considered as the operator's employees. Similar regulatory constraints relate to parties' obligations with respect to maintaining hotel books and records for tax purposes, as well as operators' rights with respect to bank accounts maintained by the operator.
Other particularities concern the right of first refusal or pre-emption right in the case of selling the hotel building; however, such provisions are not common in HMAs. Usually there are certain restrictions regarding the entities to which the property can be sold, or rights under the lease agreement transferred (if the owner is a tenant and not a holder of a freehold), especially with respect to operators' competitors.
The 'white label operator' (WLO) model is also used on the Polish market, especially in regional cities and holiday resorts. In terms of the WLO model, we may observe more flexibility with respect to the initial term for which the agreement is concluded (even three to seven years), as well as with less ancillary agreements that are usually required under HMAs by major brands (e.g., licence agreements, group services agreements, IT and technical services agreements, marketing contributions). The WLO model is often combined with a franchise agreement with a renowned brand belonging to midscale and upper-midscale hotel categories.
The hotel market in Poland has been rapidly expanding in recent years, with new projects launched in Warsaw, as well as in Poland's main regional cities. It is currently difficult to foresee the development of the market due to the covid-19 pandemic and its consequences; however many hotel chains continue developing projects to be opened in the next few years and have announced plans for further expansion. For example, Accor has announced the opening of two hotels under the Tribe brand, which has not been present in Poland so far – one in Warsaw city centre, and the second one in Krakow Old Town to be opened in 2022.34 Additionally, on 3 August 2020, Nobu Hotel finally opened in Warsaw after covid-19 related restrictions were lifted.35
A typical financing structure used for hotel transactions in Poland is similar to other financing structures concerning real estate. Such structures are based on a credit financing by a bank, or consortium of banks, granted to a special purpose vehicle (SPV), which either:
- holds the title to the real property on which a hotel is located or is to be constructed; or
- will buy shares or assets of a company that owns the hotel. The standard security package consists of:
- a mortgage;
- a registered pledges over shares in the SPV and its bank accounts, together with a power of attorney to the SPV's bank accounts;
- a security assignment of the SPV's rights under insurance agreements and project documents (sometimes the lenders also require assignment of the SPV's rights under agreements with payment card acquirers);
- a subordination of shareholders' loans; and
- submissions to enforcement.
The main rights that lenders have over the hotel property and operations stem from the security documents, in particular the mortgage and the security assignment of rights (upon their enforcement). In the case of a mortgage, the lenders' rights consist of the right to sell the property via public auction, or take the ownership of the property. As to the security assignment of rights, the lenders' rights vary depending on the assigned right. On top of those rights, lenders also have certain rights under the credit agreement, such as the right to inspect the hotel property, and to give consent to the SPV for certain actions concerning hotels, such as material construction works, material fit-out works, etc.
Non-disturbance agreements are not commonly used in hotel financings in Poland. Due to current restrictions in the operation of hotels and other accommodation facilities, revenues in these sectors have significantly decreased. As a result, at present, banks are much less willing to finance hotel investments. On the other hand, banks are making it possible for borrowers who are hotel owners to change the repayment schedules of their loans, while the Polish government continues to provide support to entrepreneurs affected by the consequences of the covid-19 pandemic. Entrepreneurs running hotels can count on support from the Polish Development Fund, the Industrial Development Agency, the State Development Bank and other sources, in the form of loans, guarantees, sureties and subsidies.
Among recent noteworthy hotel financing transactions, the following three transactions relating to hotels located in downtown Warsaw are worth mentioning:
- financing by a consortium of four banks: Santander Bank Polska, Bank Pekao, Helaba and UniCredit of a construction by HB Reavis, a Slovakian developer, of NYX Hotel, part of the office-hotel Varso Place complex. The value of the financing of the whole complex amounts to €350 million. The complex will consist of the tallest building in the European Union, to be called Varso Tower, which will be 310 metres high;36
- financing of the acquisition by Patron Capital of Sheraton Warsaw Hotel (one of four Sheraton hotels in Poland), which is a popular meeting venue for businessmen and diplomats in Warsaw;37 and
- financing of the acquisition of Motel One Warszawa-Chopin, a hotel having 333 rooms, by Motel One, a German hotel company, from Strabag Real Estate, a renowned Austrian developer. The hotel was named Warsaw-Chopin, owing to its location opposite the National Institute and Museum of Fredrick Chopin in Ostrogskich Castle in Warsaw.38
i Employment disputes
HR-related court proceedings are settled by the labour courts. Employees may act on their own before the court or be represented by counsel. Employee claims are free-of-charge, unless the claim value exceeds 50,000 zloty. The proceedings are time-consuming and may even last up to three years. Currently harassment and discrimination are the most popular claims.
ii Staffing or employment models
Polish law distinguishes between employees, non-employee workers, agency workers and self-employed. Although the level of protection depends on the nature of the relationship, employees enjoy the widest protection, including protection against unfair dismissal, redundancy payment, statutory notice periods, overtime and others. Alternative staffing models are subject to the authorities' scrutiny due to reclassification risk.
iii Pay and benefits
The minimum wage for full-time employees is set each year and in 2020 it amounts to 2,600 zloty gross monthly, or 70 zloty per hour. Non-employee workers and self-entrepreneurs (both on service agreements) are entitled to the minimum hourly wage. Employers with more than 50 employees should have Remuneration Rules and a Company Social Benefit Fund, the terms of which should be consulted with trade unions or employees' representatives. Non-cash benefits (e.g., private medical insurance or sports cards) are very common. As of 2020, new mandatory pension schemes (PPK or PPE) should be adopted by smaller employers (headcount between 20 and 249 persons). Due to the pandemic, the second wave of PPK implementation was postponed for the deadline related to the third wave of implementation.
iv Termination of employment
There are several options to terminate employees; however, in all cases reasons must be provided, and the document must be in writing. There are certain protected categories of employees. There is also a special procedure for gross misconduct and redundancies. In each case the employee may challenge unilateral termination before the court within 21 days. The option to reach amicable settlement is always available and recommended.
Dispute resolution and management
In July 2018, the Court of Appeals in Białystok issued an interesting judgment (file No. I AGa 101/18) in a dispute arising from termination of an HMA.
Based on the annex to the HMA, the parties lowered the basic fee, the incentive fee and the manager's commission. At the same time they decided to calculate the difference between the initial and the new amount of the above-mentioned fees (the differential fee), and suspend its payment until the HMA is terminated by the owner or by the operator through the fault of the owner. In the case of termination of the HMA owing to expiration of the fixed term that difference was to be remitted.
A year later the owner terminated the HMA based on several doubtful grounds. The claimant found the termination unlawful and decided to pursue two types of claims: for the differential fee and reimbursement of revenue lost owing to premature termination of the contract. The first claim was awarded by the court in separate proceedings. However, the court refused to award the operator the second claim. The Court of Appeal in Białystok agreed with the first instance court stating that although the claimant did not receive remuneration for the remaining six months of management services, at the same time he obtained almost twice as much of the differential fee. The differential fee would not have been due if the HMA had not been terminated, and thus there was no reason to believe that the claimant incurred any loss whatsoever. Therefore, the claim was dismissed in full.
Another noteworthy case was recently adjudicated by the Court of Appeal in Warsaw (file No. I ACa 1662/17). On 17 July 2019, the court ruled in favour of a large hotel management company, awarding compensation for profits lost due to an administrative decision. The claimant argued that the City of Warsaw, being the first instance administrative body, caused severe damage by issuing an unlawful decision refusing the right to proceed with a hotel investment. The court agreed with the claimant's reasoning and stated that if a faulty first instance administrative decision is upheld in the course of appeal proceedings, each administrative body is separately liable for its own unlawful actions. This judgment may have significant impact on future compensation disputes since it overrules the assumption according to which public administration bodies were not liable for damage caused by decisions that were not final and binding.
The Polish hotel industry was experiencing a boom until March 2020, with growing demand from tourists and business customers, mainly driven by domestic tourists.39 The biggest cities demonstrate the large investment potential in the number of hotel rooms (especially near the largest cluster of offices). However, many hotel investments are also planned in smaller cities in the coming years (in holiday destinations in particular).40 The huge demand for hotel facilities in small resorts in Poland in the mountains, by the Baltic Sea, or near lakes, has been particularly visible during the pandemic period.
The structure of the Polish hotel market is still dominated by individual hotels owned by Polish companies that operate them themselves; however, this situation is currently changing. Many international brands plan to locate operations in Poland as part of a portfolio expansion strategy, such as the top three international hotel chains in terms of number of hotel rooms – Accor/Orbis, Hilton Worldwide and Marriott International. However, there is still demand from tourists for non-affiliated, boutique facilities, such as the four-star Grand City Hotel in Wroclaw located in a historic tenement house. A particular increase can be noted in the four and five-star hotel category, however, three-star hotels still dominate.41
There is a trend for locating hotels in mixed-use developments, for example, the four-star NYX from the Leonardo Hotels network, which is to be located in Varso being constructed by the Slovak developer HB Reavis – Warsaw's highest office and mixed-use building,42 and Hotel Crowne Plaza and Holiday Inn Express, which are to be located in the other prestigious mixed-used building – the Warsaw HUB constructed by the Belgian developer Ghelamco.43
The presence of condo hotels, in particular in coastal and mountain regions, is also expanding – facilities function like a hotel from the guests' point of view, apart from the fact that hotel rooms belong to different individual investors, which guarantee higher rates of return from short-term in comparison to long-term rental (e.g., Crystal Mountain Resort in Wisła in the Polish mountains).44 This form of hotel operation also raises many legal issues, which are not currently fully regulated by law.
The law applying to hotels is in danger of lagging behind technological and business changes, notably in mixed-use buildings. Hoteliers are confronted with a variety of legal issues, connected in particular with new standards of data protection, customers' protection, new forms of employment, or the necessity to employ foreigners, as well as with the new rigorous sanitary requirements connected with the pandemic. The use of IT and cutting-edge technology solutions in hotels also requires the application of tailor-made legal tools owing to the lack of appropriate legislation.
The impact of covid-19 has definitely hindered the development of the hotel sector visible in recent years. Unfortunately, researchers say that recovery to the pre-covid-19 state might take until 2023, or even longer.
1 Marcin Swierzewski, Kuba Ruiz and Maciej Georg are counsel, and Marta Kwiatkowska-Cylke, Mateusz Dubek and Paulina Grotkowska are senior associates at Bird & Bird. The authors would like to thank Bartlomiej Sikora, Paula Koczara, Magdalena Betkowska, Filip Windak, Aleksandra Czubek Edyta Deszczka, Dominik Hinczand and Zuzanna Morawska-Zakroczymska for their assistance with this chapter.
2 J. Miklewski: Jednak spowolnienie, Hotel Market in Poland – Report 2019, p. 4, available at: www.horecanet.pl/rynek-hotelarski-w-polsce-raport/.
4 A. Szymczyk, W fazie wzrostu, Hotel Market in Poland – Report 2019, p. 35, available at: www.horecanet. pl/rynek-hotelarski-w-polsce-raport/.
5 Chamber of Commerce of the Polish Hotel Industry, Hotele w czerwcu: w obiektach niewielu gosci, ceny poszly w dól, available at: https://www.ighp.pl/aktualnosci/szczegoly-aktualnosci?NewsID=48338.
6 Journal of Laws 2017, item 2278; hereinafter referred to as the Act on Acquisition of Real Estate by Foreigners).
7 See Article 1 Section 2 of the Act on Acquisition of Real Estate by Foreigners.
8 See Article 1 Section 1 of the Act on Acquisition of Real Estate by Foreigners.
9 See Article 8 Section 2 of the Act on Acquisition of Real Estate by Foreigners.
10 See the Polish Act of 11 April 2003 on Shaping of the Agricultural System (Journal of Laws 2019, item 1362).
11 See Article 240 of the Polish Civil Code (Journal of Laws 2019, item 1145; the Polish Civil Code) and Article 33 of the Polish Act of 21 August 1997 on Property Management (Journal of Laws 2018, item 2204).
12 See Articles 38 and 39 of the Polish Act of 29 August 1997 on Hotel and Tour Services (Journal of Laws 2019, item 238).
15 See Article 693 et seq. of the Polish Civil Code.
16 See Article 695 of the Polish Civil Code.
17 See Article 1002 of the Polish Civil Procedure Code (Journal of Laws 2019, item 1460).
18 See Article 697 of the Polish Civil Code.
19 See Articles 676 and 694 of the Polish Civil Code.
21 See Article 76 Section 5 of the Polish Act of 30 June 2000 on Industrial Property Law (Journal of Laws 2017, item 776; hereinafter referred to as the Act on Industrial Property Law).
22 See the Polish Act of 4 February 1994 on Copyright and Related Rights (Journal of Laws 2019, item 1231; the Act on Copyright and Related Rights).
23 See Article 105 of the Act on Industrial Property Law.
24 See Article 107 of the Act on Industrial Property Law.
25 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing directive 95/46/EC (GDPR).
26 Commission decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council; Commission decision of 27 December 2004 amending Decision 2001/497/EC as regards the introduction of an alternative set of standard contractual clauses for the transfer of personal data to third countries; Commission Decision 2001/497/EC of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries under Directive 95/46/EC.
27 Polish Act of 18 July 2002 on Electronically Supplied Services (Journal of Laws 2019, item 123), Polish Act of 30 May 2014 on Consumer Rights (Journal of Laws 2019, item 134) and Polish Act of 16 July 2004 on Telecommunications Law (Journal of Laws 2018, item 1954).
28 As opposed to agreements not specifically regulated under the Polish Civil Code, which are recognised as 'unnamed' agreements (e.g., a franchise agreement).
29 For example, the Polish Civil Code provides certain limitations regarding the termination of agency agreements or definite-term tenancy agreements.
30 For example, in the judgment of 7 February 2008, file No. V CSK 397/07, the Supreme Court confirmed that a franchise agreement constitutes an unnamed agreement, which can be construed by the parties on the condition that the content or its purpose is not contrary to the nature of the relationship, statutory law and the principles of community life. As the franchise agreement may include elements characteristic of a named agreement, one may not rule out that in a particular case, the mandatory provisions applicable to a given type of named agreement will need to be applied to the franchise relations as well, provided that the same will be justified by the content, the purpose of the agreement concluded between the parties, and by their mutual intention.
31 The European Code of Ethics for Franchising was originally written in 1972 by major industry players in Europe, members of the EFF's founding associations. It directly reflects the experience of good behaviour of franchisors and franchisees in Europe. It was reviewed in 1992 to reflect the evolution of franchising on the market, as well as to meet the development of the EU's regulatory frame. The Code has been updated in 2016 in order to further integrate provisions that reflect the continued franchisor-franchisee experience on the market in the countries of its member associations, as well as to meet the recommendations of the European Commission on matters of Self-Regulation (www.eff-franchise.com/77/regulation.html).
32 In Poland, 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) directly applies. According to the Polish Civil Procedure Code, Article 1105, the parties to a specific legal relationship may agree in writing that any cases arising from that relationship, involving property rights, shall fall under the jurisdiction of the courts of a foreign state, this way excluding the jurisdiction of Polish courts, if such agreement is effective according to the law that regulates it in a foreign state.
33 See the Act on Copyright and Related Rights.
39 Statistical analyses, Tourism in 2018, GUS (Statistics Poland, Social Surveys Department), Warsaw 2019, page 55; https://www.emmerson-evaluation.pl/wp-content/uploads/2018/12/hotel-and-condo-hotel-
market-in-poland-2018-report.pdf, page 15.
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