Banking & Fintech

The PFSA Office (UKNF) in the form of an agreement for the provision of brokerage services.

The PFSA Office indicates that pursuant to Art. 58 of Regulation 2017/565, an agreement for the provision of investment services and additional services to which a retail or professional client is a party must be concluded in writing on paper or another durable medium. As Regulation 2017/565 says nothing more about the written form, it is necessary to refer to the provisions of national law.

The PFSA Office emphasizes that, in principle, under Polish law, the following are equivalent to a written contract: (i) a contract concluded in electronic form, bearing a qualified electronic signature – pursuant to Art. 781 § 1 of the Civil Code and (ii) an agreement concluded with the use of a trusted profile, bearing a trusted signature – in accordance with Art. 20ae paragraph. 2 of the Act of February 17, 2005 on the computerization of the activities of entities performing public tasks (Journal of Laws of 2020, item 346, as amended).

The PFSA Office also points to the additional right of the parties to conclude the so-called pactum de forma, i.e. contracts in which the parties agree that they will conclude a future contract by submitting declarations in a specific form. Such a contract governing the form of a future contract is regulated in Art. 76 of the Civil Code and does not require any particular form itself. Thus, the brokerage house may make an appointment with the client electronically, even before concluding the relevant contract, that in mutual communication it will use electronic means of communication, enabling the transmission of the content of declarations in electronic form.

The choice of the electronic form of communication, however, is not unlimited, as it should allow for the identification of the person expressing him- or herself without any doubts. In addition, the technical limitations of the possibility of providing more extensive content must be taken into account, which is particularly important in contacts with a retail client.

Author team leader DKP Legal Piotr Glapiński
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