The factoring company is subject to the provisions of the Act of August 5, 2015 on the handling of complaints by financial market entities and the Financial Ombudsman (hereinafter: "Law").
A factoring service provider (that is not a Bank), according to the Banking Law, is a financial institution, that is, an entity that is neither a bank nor a credit institution, whose primary activity that is the source of most of its revenue is the performance of business activities. Thus, a factoring company, as a financial institution, is a financial market entity, to which the Law attaches certain legal consequences.
As the Law imposes an obligation on the factoring company to implement a complaint procedure, an entitlement to use this procedure arises on the part of the customer. A complaint is an application addressed to a financial market entity by its customer, in which the customer raises any objections to the services provided by the financial market entity.
The complaint procedure is not mandatory for customers who are commercial companies. It is mandatory for clients: sole proprietors and partners in partnerships, who are considered clients by the Ombudsman under the law. It is also possible to voluntarily extend the procedure to all entities (including companies).
Factor is required to include some of the provisions of the claims procedure in the contract with the customer (factoring agreement or general factoring terms and conditions / regulations). Other provisions can be introduced in an internal procedure. Some choose to adopt a full complaint procedure in the contractual template. This has its pros and cons.
In addition to the introduction of a claims procedure, many other provisions apply to the factor, such as:
- Article 33 of the Act -. the obligation to report annually to the Financial Ombudsman, within 45 days of the end of the calendar year, on the processing of complaints and the number of court actions taken by the customers of these entities as a result of the failure to resolve complaints in accordance with the wishes of these customers.
- Article 30 of the Law - the obligation to submit, at the Ombudsman's request, the model contract for the provision of services used by the entity in its operations, as well as other documents and forms used in the conclusion and performance of such contracts, within 14 days of receipt of the request;
- Article 31 of the Law - the obligation to respond promptly to the Ombudsman's inquiry - no later than 30 days from the date of receipt of the request, the entity is obliged to inform the Ombudsman of the action taken or the position taken and to provide the requested documents;
- Article 32 of the Act-penalties for violations of the Act-the Ombudsman may, by decision, impose the following a fine of up to PLN 100,000;
Some factoring companies are also required to pay Advances for the Ombudsman's operating expenses. Article 20(1) of the Law (and the Decree issued pursuant to it) indicates the entities covered, but a financial institution, which is a factoring company, is not listed among them. Factor (which is not a Bank) providing only factoring services to businesses as of today will not pay such advances. The situation could change if, for example, the company begins to provide consumer loans or lend to flat-rate farmers - this could result in the facturer also being classified as a lending institution. This would entail an obligation to pay the Ombudsman's expenses of 0.02% of total assets per year (the rate for lending institutions).
