Practical problems of foreign employers with the implementation of PPK (Employee Capital Plans)
The last stage of the implementation of employee capital plans (PPK) planned by the legislator has just finished. Foreign entities not registered in the Polish National Court Register and without Polish identification numbers, such as NIP or REGON, but employing employees in Poland, encountered significant, practical problems with the application of the provisions of the PPK Act, and as a consequence are exposed to sanctions.
It should be remembered that by April 23, 2021, employers who so far were not obliged to do so, should have concluded contracts for the management of employee capital plans (PPK), and on May 10, 2021, passed the deadline for signing the second contract, i.e. agreement for the maintenance of employee capital plans.
Foreign companies employing employees in Poland had a problem with the conclusion of the above-mentioned agreements in accordance with the Act of 4 October 2018 on employee capital plans (i.e. Journal of Laws of 2020, item 1342; hereinafter: the PPK Act). Namely, the lack of registration in the Polish National Court Register and the lack of Polish NIP or REGON identification numbers turned out to be the reason for many financial institutions to refuse to conclude PPK contracts.
It should be emphasized that foreign employers are not exempted from creating PPK like Polish micro-entrepreneurs, and thus even if all employees submit declarations of resignation from making payments to the PPK, the obligation to create a PPK still remains valid, and the lack of its implementation creates a risk of a fine of up to 1.5% the remuneration fund for the previous financial year.
The Polish Development Fund, noticing this important problem, issued a recommendation for an equivalent application of Art. 11 of the Regulation of the European Parliament and of the Council (987/2009 of September 16, 2009) on the implementation of Regulation No. 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1), which provides the possibility for an employee to take over the duties of a payer of social insurance contributions. Importantly, however, the use of such a solution is possible only with the consent of the employee (a separate agreement between the parties is required). The solution to the problems of foreign entities was to be brought about by the amendment to the PPK Act, but firstly, the legislative procedure is still underway, and secondly, the solutions planned in this area already result in additional doubts of experts.