Cross-border provision of regulated and non-regulated services

We advised the operator of an integrated corporate expense management system in a SaaS model on the following project:

CROSS-BORDER PROVISION OF FINANCIAL AND NON-FINANCIAL SERVICES OFFERED BY SEVERAL ENTITIES TOGETHER

• The provision of online SaaS services by a supplier from a European Economic Area country (EU member state and Norway, Iceland, Liechtenstein) to Polish clients is subject to treaty freedoms and Polish regulations, including the Act on principles of participation of foreign entrepreneurs and other foreign persons in economic turnover in the territory of the Republic of Poland.
• An integrated product consisting of a financial service and non-financial service delivered by different providers is subject to the principles regulating cross-border provision of financial services in the scope of the payment component and, in the remaining scope, to the general principles.
• A legal analysis of the Polish and EU laws regarding the conduct of activities addressed to Polish clients by non-Polish service providers requires precise determination as to whether an “establishment” in Poland is created in the course of such activities or whether the model is based solely on the cross-border provision of services (which, under the Polish Act, may only occur “temporarily”). Appropriate classification of the model requires an excellent knowledge of EU law, case law of the Court of Justice of the EU and different ways in which the rules are interpreted by various regulatory authorities.

The advisory services of DLK Legal included:

• legal classification of the services covered by the product and the status of the suppliers of the various components
• provision of clear guidelines on specific obligations that arise for the provider of regulated and non-regulated services covered by the product, including stronger correlation between a given service and the territory of Poland (Polish-language website – Polish domain – off-premises activities in Poland – fixed resources in Poland), and best practices in their implementation
• legal opinion on the effects of different classification of activities in the form of a regulated service (outsourcing, agent, etc.) by supervision authorities in the EU
• adjustment of legal documentation of the service to the Polish law.