Effective as of 25.05.2018. The General Data Protection Regulation (the so-called RODO) significantly affects the activities of factoring companies. This is because it requires revamping the process of acquiring personal data, applying new information messages and performing a number of other obligations. However, there are many indications that it will make silent factoring more difficult and, in extreme cases, impossible.
This is because the essence of it is that the factoring party's counterparty (the debtor) does not find out that the factor is using factoring. Meanwhile, RODO requires transparency. One of the most important and widely visible obligations under RODO are the so-called disclosure obligations (communications) under Articles 13-14 of RODO. The regulations require the entity collecting the personal data (here: the factor) to fulfill its information obligation to the entity whose personal data it receives (here: the factor's counterparty).
Assuming that the factor receives from the factor (e.g., Jan Kowalski's company) to verify the personal data of its counterparty (Piotr Nowak's company) a problem arises for the factor. Indeed, Article 14 of the RODO then requires the factor to notify the counterparty that its data has been received: "within a reasonable time after obtaining the personal data - within one month at the latest - having regard to the specific circumstances of the processing of the personal data.". The transfer of such information by the factor causes the whole concept of implicit (silent) factoring to collapse. Meanwhile, this data is essential for the factor - not only for the factoring service, but also for investigating the counterparty for assessing its factoring capacity, granting a limit, etc.
The above situation means that silent factoring may not be legally feasible for contractors who are sole proprietors, civil partnerships, and some partnerships. This is because these entities are affected by RODO. In terms of silent factoring (which does not require contacting the counterparty's employees) - this problem does not apply only to counterparties that are limited liability companies (limited liability company and joint-stock company).
There are some opportunities to make silent factoring legal, however, these are not simple solutions, and due to the short period of the new regulations, their legality has not yet been sufficiently tested. In summary - the application of silent factoring to counterparties that are sole proprietors, partnerships and certain partnerships under the RODO is a major challenge for factoring companies. It is to be expected that some of the factoring companies using this product, especially when it is not a significant source of revenue, will stop offering silent factoring.
EDIT (2021): The article in the aforementioned content was published on the Blog in mid-2018. Since then, a lot has changed, in particular, the view has solidified from which it follows that in the absence of an assignment of receivables, it is possible to apply the construction of entrustment of personal data processing and assume the role of processor by the factor while maintaining the role of personal data controller in the person of the factor. This makes it possible to preserve the existence of the product.
