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Legal shorts December 2021

29 December 2021

Changes in the whistleblowing program

The current amendment to the Whistleblower Protection Act, which is due to come into force on 1 May 2022, is intended to introduce both new obligations for employers to introduce into their internal whistleblowing programme and an extension of the entities that will be obliged to introduce such a functional programme.

From May 2022, whistleblowing programmes will have to regulate, among other things, the details of measures against obstruction of whistleblowing as well as measures to remedy any deficiencies found in the verification of whistleblowing reports.

The amendment also introduces the obligation to regulate the system of education and motivation of employees to use the possibility of whistleblowing.

According to the draft amendment, the obligation to have a whistleblowing programme will apply not only to employers with more than 50 employees and public authorities, but also to those providing financial services and services in the field of transport safety and the environment.

The bill is currently in the inter-ministerial comment procedure; therefore, its content is subject to change.

Age as a new ground for dismissal by the employer

The Constitutional Court suspended the effectiveness of the amendment to the Labour Code, which was to apply from 1 January 2022.

The amendment concerned the possibility for an employer to terminate the employment relationship by giving notice of termination to an employee who has reached the age of 65 years and at the same time has reached the retirement pension age. Apart from these two criteria, no other conditions had to be met for such a dismissal to be possible, e.g., there had to be no unsatisfactory performance by the employee. The employer also did not have to offer the employee another suitable job.

If the employment relationship is terminated in this way, the employment relationship would end on the expiry of the standard notice period and the employee would also be entitled to a severance payment in the amount of the number of years of service.

The age of the employee would give the employer the option, but not the obligation, to terminate his/her employment relationship. Thus, reaching the age would not automatically lead to the application of this ground for dismissal. It is now up to Parliament to bring the intended amendments into line with the conclusions of the Constitutional Court.

Changes in hazardous waste management

One of the latest amendments to the Waste Act has brought a number of innovations for entrepreneurs in the field of hazardous waste management. Pursuant to the previous legislation, entities that handled hazardous waste in excess of 1 tonne per year needed a special permit for this activity.

On the basis of the newly adopted legislation, this consent ceased to be valid on 1 November 2021, and disposers who do not carry out hazardous waste management activities as part of another activity for which they have been granted a consent or authorisation are obliged to register with the competent authority as disposers of hazardous waste.

The amendment in question aims to reduce the administrative burden, both on the part of business entities and on the part of the competent authorities of the state administration of waste management, as in many cases in the field of hazardous waste management the administratively demanding procedures are replaced by a simpler registration.

Managing director and procura holder do not act together

In practice, we often encounter the question of how the manner of acting on behalf of the company can be regulated and whether one of the permitted ways is the combination of the actions by procura holders and managing directors. This is a common situation in the case of the need for a more complex regulation of the relations between the individual partners in an “sro” (limited liability company). Despite the common nature of this question, the response from the registering courts has not been uniform.

According to the legal sentence of the Supreme Court of the Slovak Republic No. R 63/2021, it is not possible for the managing director and the proxy to act jointly on behalf of the company. This conclusion is justified, inter alia, by the wording of the Commercial Code, according to which a legal person acts through its statutory body or a representative act on its behalf. The conjunction “or” therefore excludes a legal person is represented by both a statutory body and a representative, which is also a procura holder.

Thus, the legal sentence contained in the Collection of Opinions of the Supreme Court No. 6/2021 answers a fairly common question concerning the arrangement of internal relations in a limited liability company.

Admissibility of a claim for damages against a subsidiary in the event of an infringement of competition law by its parent company

The conclusions of recent judgement of the Court of Justice of the European Union No. C-882/19 in the case of Sumal shows that the victim of an entrepreneur’s anti-competitive conduct may also bring an action for damage against a subsidiary of the parent company which is not affected by the decision itself. The condition is that the two companies form a single economic unit.

The mention of the subsidiary in the decision on an infringement of competition rules itself is not a condition for claiming damages against it.

The conditions for success in such a claim for damages are that there is an economic, organisational and legal link between the subsidiary and the parent company and that there is a link between the subsidiary’s activity and the matter which constituted the infringement of the competition rules by its parent company.

However, the entitlement of a subsidiary to exercise the right of defence is guaranteed. It may therefore, inter alia, attempt to demonstrate that it does not belong to the same economic unit as the parent company.

Inbox advertising is direct advertising

At the end of November 2021, the Court of Justice of the European Union held in its judgement No. C-102/20 in the case of StWL that the display of advertising messages in an electronic inbox in a form similar to an ordinary email constitutes direct advertising and requires the consent of the recipient to receive such messages within the meaning of the directive on privacy and electronic communications.

If the display of such messages is of a frequent and regular nature, and if there is no prior consent to receive them, it may also be considered as making persistent and unwanted solicitations within the meaning of the unfair commercial practices directive. Therefore, such conduct may be regarded as an unfair practice which is prohibited.

Thus, the above-mentioned judgement implicitly calls for a review of the e-marketing practices of companies active in this segment, in particular with regard to obtaining prior consent to send and subsequently receive such advertising messages.