The Risk&Supervision Meeting 2020 conference, organized by CRIF sp. z o.o., was held on 10/09/20 in Warsaw at the Marriott Conference Center. The aim of the conference is cross-sectoral exchange of experience and finding common features in the fraud sphere. The point of the event is to discuss common business areas and strengthen cooperation between the two sectors (leasing + factoring), which operate for a similar customer segment (b2b). Due to the subject matter of the Blog, I limit my coverage of the event to the legal aspects of factoring, although there were indeed quite a few of these aspects throughout the conference.
Indeed, I have the impression that every part of the program at least hooked on the legal aspects. Also a very interesting speech by Michal Rapacki focusing on economic crime issues from the perspective of detective work. Likewise with an interesting author's discussion of the results of the 2019 fraud survey by Michal Pawlik ("Opportunities for solidarity anti-fraud measures - with reference to the survey of fraud in the leasing and factoring sector"). The topics of the survey results were also discussed by me as part of the this entry.
The legal panel began with an introductory presentation by attorney Marcin Czugan, during which current legal aspects were outlined, including those related to the limitations of the crisis shield:
- Restrictions on foreclosures - no bidding when the amount of debt is less than 1/20 of the sum of the property assessment (with exceptions);
- Eviction restrictions during pandemic period;
- Credit vacations (the possibility of suspending the obligation to repay loan / lease installments);
- AML V (change in definition of beneficial owner; financial security measures vs. determination of customer's ID card series and number and nationality, emergence of list of "domestic PEPs," obligation to report discrepancies between CRBR data and customer declaration; new entities required to report to CRBR);
- Access to databases (unified application; Register of Public Claims [RNP], National Register of Debtors [KRZ] from 1.12.2020);
- b2sb reform, i.e., the introduction within b2b of a new group of customers (sole proprietors and partners in civil partnerships) treated in part as consumers (including with regard to abusive clauses);
- Announcement of changes in the Civil Code (exploitation, statute of limitations on settlement attempts);
- Possible revision of the Consumer Credit Directive (conceptual stage);
The legal panel covered only a small part of the planned issues, due to time constraints:
- AML
- Photocopying and storing customers' ID cards in leasing and factoring practices in the context of the March 1, 2018 Law on Anti-Money Laundering and Terrorist Financing (AML Law) and the provisions of RODO (data minimization principle);
- The position of the President of the Office of the Protection of Personal Data in response to questions from banks in terms of the possibility of storing data in the form of photocopies of ID cards;
- Customer identification and identity verification obligations under AML;
- Necessary scope of data processing for AML purposes;
- Implementation of the AML Directive V.
- Split Payment and the factoring business.
- Implementation of a bailiff attachment under MPP (Split Payment) - an interesting topic faced by industry representatives who occasionally receive notices as third debtors and are considering what transfer to make them. I have already signaled the topic here.
- dealing with debtors who make payments in MPP, especially in such a way that they try to "fit" all the VAT and one transfer (especially the first one). I have already signaled the topic here.
- Reverse factoring vs Split Payment. The industry's efforts to secure the factor's enjoyment of the benefits of MPP (Article 108c of the VAT Law) in the event of payment by the factor for the factor's subrogation obligation through MPP were discussed, as well as the path of industry dialogue, the goal of which should be to obtain a formal position confirming the interpretation of the regulations applied by PZF in line with the spirit of the VAT Law and the very purpose of the MPP regulation.
- b2sb reform i.e., the introduction of a new group of customers (sole proprietors and partners in civil partnerships) treated in part as consumers (including with regard to abusive clauses) within b2b. A key reform for both industries, most financial institutions in Poland, as well as even all other companies, requiring remodeling of the contractual templates used, due to the emergence of a new group of customers. We will devote a separate article to this reform, active work is currently underway in the financial institutions industry to adapt companies (including factoring companies) to the changes. The issue of the legal force of the register of abusive clauses. The effects of abusive clauses. Administrative decisions of the President of the OCCP. Interpretation of the professional nature of the business.
The legal panel discussed:
Attorney Jerzy Strasz, head of the Legal Services Department at Millennium Leasing Sp. z o.o.;
Attorney Marcin Czugan, CEO of ZPF;
Attorney Jacek Rakowski, Director of Legal Department, mLeasing;
Attorney Bartosz Nadra, Managing Partner of Jaskowiak Nadra Attorneys at Law (author of this Blog);
Moderator: Attorney Ewa Guzowska, Partner of KGK Kancelaria Radcowska E.Guzowska i Ska, Sp.
Topics for which there was not enough time:
- Liquidity support for factoring companies based on BGK guarantees ( the so-called factoring shield);
- European Distribution Fraud and the current position of the industry;
- Credit Vacation;
- Conclusion of remote factoring agreements;
- Damage and fraud levels ("Propensity to cheat increases in times of crisis");
- Restrictions for recovery;
- Litigation problems (problems with service of mail on defendants under the CCP; problems with jurisdiction when suing recipients; disappearing board; statute of limitations);
- MDR;
- New JPK rules;
- PSD2 concerns;
Image rights: CRIF Ltd.
