POLAND Law and Practice Contributed by: Karol Tatara, Paweł Kuglarz, Anna Czarnota and Mateusz Kaliński, Tatara & Partners Restructuring & Insolvency Law Firm
1.3 Statutory Officers Insolvency Practitioners Poland has a system of insolvency practitioners, who can be appointed as: • an interim court supervisor; • a court supervisor; • an arrangement performance supervisor. Appointment of Trustees – Common Issues The trustees (insolvency office holders, administrators) are among the most important players in bankruptcy proceedings. For sound and efficient insolvency pro - ceedings, it is very important to have qualified, trained and experienced professionals as the trustees. There is therefore public awareness and discussion around the appointment of trustees. There have also been discussions in Poland with regard to reform of the self-governance of insolvency practitioners. • an arrangement supervisor; • a receiver (administrator); • a trustee; and An interim court supervisor as well as a trustee are appointed within proceedings to declare bankruptcy, whereas the other above-indicated functions are per - formed within restructuring proceedings. 2. Creditors 2.1 Types of Creditors In Poland, creditors differ with regard to their position and role in the proceedings. The most popular are: • secured creditors; • public entities; • preferential claims creditors; and • non-preferential claims creditors (ie, without any preferences). Secured claims enjoy preferential treatment both in insolvency and restructuring, but this is regulated based on the value of the security.
Public entity claims can be divided into social security claims and fiscal authority claims. While the first are favoured in an insolvency, the others have the same rank as the claims of regular creditors. In restructuring proceedings, public entities can vote in favour of the arrangement only if it is compliant with EU state aid rules and regulations, and the proceed - ings meet the private creditor test. Preferential claims are mainly employee and pension claims. 2.2 Priority Claims in Restructuring and Insolvency Proceedings Under Polish law, the cost of the proceedings, employee claims and pension claims enjoy preferred treatment. With regard to secured creditors, their receivables are subject to satisfaction from the sum obtained in the liquidation of the encumbered object, less the costs of liquidation of said object and other costs related to the bankruptcy proceedings in an amount not higher than one-tenth of the sum obtained in the liquidation, and no more than such part of the costs of the bank - ruptcy proceedings that result from the ratio of the value of the encumbered object to the value of the whole bankruptcy estate. The issue of new – also known as “fresh” – money within restructuring proceedings is important, yet financial institutions are very careful with regard to granting it. Although there is preference in the ranks of claims under the Bankruptcy Law, new money is unfortu - nately not very popular. The problem may possibly lie with Banking Law requirements for the assessment of solvency (creditworthiness) and a strict approach to non-obvious situations. Some security granted and established with new mon - ey may, in some circumstances, be deemed ineffec - tive with regard to the remedial or bankruptcy estate. According to Article 129 of the Restructuring Law, new money (a receivable debt which is not covered by the
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