Legislator on 16 October 2023 revised Article 6491 Civil code by adding section 11 with the following content: provision section 1 shall not apply where the investor is the Treasury. Old wording Article 649(1) the civil code is worded as follows: The guarantee of payment for works, hereinafter referred to as ‘the guarantee of payment’, shall be granted by the investor to the contractor (general contractor) in order to secure the timely payment of the paid remuneration for the performance of the works.
It is important that the guarantee of payment can be granted in the form of a bank guarantee of an insurance guarantee, bank credit or bank guarantee granted to an investor[1]. This is a closed directory and cannot be expanded.
The literature argues that: ‘(...) It does not constitute a serious justification for the current opinion of public trust institutions, without defining the scope of the concept, especially since the subjective feeling of many trading participants does not necessarily have to share such a positive opinion with those entities.
Given the relationship between the investor and the contractor only, it is surprising and disturbing to assume that, for example, the guarantee given to the contractor by a reliable entity with significant ex-definitione assets is insufficient.
As can be seen, the KC introduces unacceptable valuation of the collateral by treating the guarantee in a worse way, even though in casu it will often be more likely to secure the payment of remuneration from a small cooperative bank with low own funds.
In particular, since, in the light of the new rules on the choice of the form of collateral, the investor decides that any guarantee, credit or guarantee granted to the bank or insurance undertaking on his behalf shall make up for the contractor's claim for the security of remuneration and exclude the application of the Article 6494 KC.’[2] It should be borne in mind that the guarantee cannot be provided by an investor.
In the explanatory memorandum to the Act amending the Act on the making available of environmental information and its protection, public participation in environmental protection and environmental impact assessments and certain other laws (Print No. 3304, 3304-A of 23 May 2023 indicated that Article 6491 k.c. was introduced into the Civil Code to prevent negative developments in the economy, in particular non-regulation by investors and contractors of construction works of remuneration for works performed.
According to the project promoters, in the case of an investor such as the State Treasury, there is no risk of this phenomenon, since the State Treasury is a reliable investor with a solvency guarantee.
The revised provisions of the Civil Code do not apply to those entities under Article 3 Act dated 16 December 2016 State property management rules, i.e. they will not apply, for example, to contracts concluded with state legal persons operating in the form of a limited liability company or a public limited liability company.
These changes will apply to works contracts carried out for e.g. provincial offices.
Where the contractor has concluded a work contract before 16 October and has not requested to provide a guarantee of payment for works before that date, the provisions of the revised form shall also apply to that contract.
To works contracts concluded before the date of entry into force of the Act in respect of which the contractor has not requested the provision of a guarantee of payment for works before that date i.e. 16 October 2023), also the provision shall apply Article 6491(11) Civil code.
[1] Article 649(2) Civil code.
[2] Article 6491 KC ed. Gniewek/Machnikowski 2023, Edition 11/It's dangerous.