Commentary to the judgment of the Provincial Administrative Court in Gliwice of January 31, 2022 (I SA/Gl 1340/21)

Abstract

The commentary raises the issue of establishing a permanent establishment for an enterprise in the case when it employs workers in another country who perform their duties remotely. The commented ruling of the Provincial Administrative Court in Gliwice is one of the first judgments in the Polish judicature referring to this issue. Its discussion is justified due to the growing popularity of cross-border work in the “home office” system, especially as a result of the COVID-19 pandemic. As part of the commentary, an analysis of the premises for the creation of a permanent establishment was conducted, taking into account the views of the doctrine and the international practice experiences. Special attention was paid to the premise of disposal of an establishment by an enterprise in the context of the possibility of creating a permanent establishment in the employee’s private space. According to the author, in this aspect, it is crucial to determine whether the company requires its employees to use a specific space in the course of performing their duties. In light of this analysis, the concept of the Provincial Administrative Court in Gliwice regarding the creation of a permanent establishment on the territory of Poland has been criticized.