New register of debtors – who and when will be registered?
In addition to the Register of Insolvent Debtors, the legislator has recently introduced another public register to the national legal system which will show data of entities which do not settle their liabilities.
It is a Register of Public Law Dues created pursuant to the provisions of the Act of 7 April 2017 on amendments to certain acts to facilitate debt recovery (Dz.U. of 2017, item 933). Though the Act came into force on 1 January 2018, the Register of Public Law Dues is to be actually launched in the second half of this year.
Who and what will be subject to entry in the register?
The Register of Public Law Dues is to, first of all, facilitate obtaining of information about financial liabilities of a potential business partner, which is aimed at increasing security of conclusion of contracts in business transactions, thus strengthening the rights and guarantees for creditors.
The Register will show information about financial dues subject to administrative enforcement in respect of which the creditor is the head of the tax office or a local government unit, such as: tax, customs dues, dues in respect of social insurance contributions, dues arising from final and binding decisions or other rulings (e.g. resolutions of the municipality council), as well as final court judgments, decisions or penalty notices. In order for such an amount to be entered in the register, it has to exceed PLN 5,000 along with interest for delay in payment.
The Register will include data (name and surname or business name, Personal Identification Number (PESEL), Tax Identification Number (NIP) or Statistical Number (REGON)) of the obliged parties – both natural persons and legal entities – who failed to timely perform the said obligations under public law of pecuniary nature. In addition to indication of the debtor, the register will also, first of all, specify the creditor, the amount due and interest charged for delay in payment, as well as information about the type and legal basis of such an amount due (though not all of these details will be available to everybody interested).
Before entering data to the register, the creditor (e.g. the head of the tax office) will be obliged to deliver a notice to the obliged party (e.g. being in arrears with payment of tax dues) on threatening disclosure of their debts in the register. Information about its existence cannot, however, be entered in the register earlier than after the lapse of 30 days following delivery of such a notice – the thus, the legislator gave the debtor a chance for voluntary payment of the amounts due in order to avoid being entered in the register. An entity which received the notice or with respect to which data has already been entered will also be able to file an objection to the creditor, if it questions the existence or the amount of the debt. If the objection is allowed, data in the register will be changed or deleted to the relevant extent.
Data from the register (first of all, information about the total amount of public law dues unpaid by a given entity) will be available to every person interested whose identity will be confirmed with the use of the qualified electronic signature or the ePUAP trusted profile via the Tax Website of the Ministry of Justice, but it will be possible to obtain data from the register only based on authorization of the entity whom the entry concerns. This means that if you wish to verify the status of unpaid dues of a potential business partner by obtaining data from the Register of Public Law Dues – for example, in order to evaluate its financial standing in this way – you have to ask them to provide you with the relevant authorization (without authorization data from the register may be obtained by, among others, courts, public prosecutor’s office bodies, Head of the Central Anti-Corruption Bureau and economic information bureaus).
Data from the Register of Public Law Dues will be made available free of charge. One will not be able to disclose data obtained from the register and, moreover, store such data for a period longer than 90 days. However, a printout of information from the register will not be an official document.
The Register of Public Law Dues will be kept in an ICT system based on detailed rules specified in the Regulation of the Minister of Development and Finance on the Register of Public Law Dues which is currently being developed. Therefore, evaluation of functionality of the Register of Public Law Dues remains an open issue – at least by the time it is launched.
Senior Associate, Advocate
TGC Corporate Lawyers