e-Delivery: A revolution in businesses’ communications with the state administration and courts
A revolution is coming in communications between Polish companies and state and local administrations and the courts. It will take the form of the e-Delivery electronic system through which public administrative offices (including tax offices) and courts will communicate with companies and citizens. The system will also be used for communications between private entities, for example business-to-business. All indications are that it will be a very useful solution.
Legal effect of e-Delivery
The legal effect that transmission and receipt of an item through the e-Delivery system will have is crucial. It will have the same legal effect as delivery by registered mail with acknowledgment of receipt. This will make it useful in administrative and judicial proceedings.
E-Delivery will also be useful for dealings between companies when performing contracts, when irrefutable proof of delivery is required.
Government objectives, benefits for companies
For the Polish government, the main purpose of e-Delivery is to eliminate traditional paper correspondence, distributed by letter carriers, from communications between state offices and between state offices and businesses. This should cut costs and expedite the circulation of documents.
What benefits will companies have from this system?
In the e-Delivery system, the sender and recipient can be clearly identified, and it is possible to retrieve from the e-Delivery mailbox almost indisputable proof (with evidentiary value in court) that the correspondence was sent and delivered. Finally, there will be no doubt about who sent what, to whom, and when it was received.
There will be no need to scan letters from the authorities, as they will no longer be delivered in a paper version. Electronic flow of documents will simplify handling and archiving.
The e-Delivery mailbox will be accessible via computer, smartphone or tablet, 24 hours a day, from anywhere in the world. Thus no more trips to the post office to pick up correspondence from the authorities.
With the search engine in the system, the sender will quickly determine the correct e-Delivery address for the recipient. Thus, there will be no doubt as to which address to use when sending the recipient, for example, a notice of lease termination, a demand for payment, or a shareholder’s declaration on exercise of pre-emptive rights to acquire shares.
Polish companies can already include e-Delivery in their agreements as one method, or even the exclusive method, for delivering statements and notices. Parties can be certain that if they deliver a letter to the same electronic mailbox where the other party receives correspondence from the tax office, any notice they send will be delivered to an address that is current, verified, and in the custody of persons authorised by the other party to receive correspondence.
E-Delivery will also be used in communications with companies involving exercise of rights by shareholders.
Who will have to implement e-Delivery, and when?
E-Delivery will have to be implemented by all Polish state offices, as they will be required to correspond with each other (send and receive letters) using the system.
Companies will have to set up their e-Delivery mailboxes no later than on 10 March 2024 (but earlier, by 30 December 2023, in the case of persons practising a profession of public trust, such as advocates, attorneys-at-law, tax advisers, and notaries).
Among other things, e-Delivery is intended to replace correspondence via the ePUAP system used in Poland since 2008 for communications between companies and tax offices.
As of 2029, the obligation to use e-Delivery will also extend to courts, bailiffs, prosecutors, law enforcement agencies (e.g. police) and local government units.
Foreign companies operating in Poland will not be required to set up an e-Delivery mailbox, but will be able to obtain one after they are issued a Polish tax identification number (NIP).
What will companies have to do in connection with the launch of e-Delivery?
By 10 March 2024, all companies entered in the National Court Register (KRS) must:
- Set up an electronic mailbox on the online platform business.gov.pl
- Obtain an electronic delivery address
- Submit the address to the Database of Electronic Addresses (BAE), a public registry maintained by the Minister of Digital Affairs.
The mailbox will enable sending, receiving and storing of messages, as well as access to a search engine for addresses of entities entered in the database.
The electronic delivery address assigned to each entity will consist of a sequence of letters and numbers (for example AE: PL-12345-67890-ABCDE-12). It is not an e-mail address.
Notification of an address to the database maintained by the Minister of Digital Affairs is equivalent to the company’s consent to delivery of correspondence from the administrative authorities exclusively in electronic form. As of notification of the address, state offices using the e-Delivery system will send correspondence to the company only electronically. The company will stop receiving paper letters from them.
Administrators of a company’s e-Delivery mailbox
The company must appoint at least one administrator of its e-Delivery mailbox, i.e. a person with access to it for receiving and sending communications.
Thus, for example, in a company that rents office, warehouse or retail space, it would be reasonable to appoint as administrators:
- The property manager, for handling correspondence with tenants and the local administration
- The chief accountant, for corresponding with the tax office
- An attorney overseeing correspondence in judicial and administrative proceedings
- At least one member of the management board, to oversee all of these matters.
The administrators will receive notifications to their e-mail addresses that correspondence has been delivered to the box. The deadlines for responding to the letters will be counted from the date the letter is received in the e-Delivery box.
Who will pay for maintaining the mailbox and sending documents via the e-Delivery system?
The box will be free, and thus the company will not pay anything for sending correspondence to state offices or receiving correspondence from state offices.
However, state offices (effectively the Polish taxpayers) will pay for correspondence to companies, via fees payable to Poczta Polska SA. This will provide a financial drip to help keep the Polish Post alive, as the institution has long suffered losses in its competition with couriers and parcel lockers.
Companies will pay for postage only if the correspondence does not involve a public entity (such as a state office or court), i.e. if they send a letter to another company or to an individual.
No penalties (for now) for failure to implement e-Delivery.
The Electronic Delivery Act does not provide for penalties for a company’s failure to set up a mailbox for electronic deliveries. Apparently, for the time being it is assumed that the benefits of having such a mailbox will be sufficient motivation for companies to adopt e-Delivery. Not having an e-Delivery address may make it difficult for businesses to operate and perform informational obligations in the future, and use of this system should simplify the company’s operations.
Konrad Grotowski, attorney-at-law, Restructuring & Bankruptcy practice, Wardyński & Partners
