Polish law currently has two different definitions of micro, small and medium-sized entrepreneurs (“SMEs”), which can lead to complications in practice. The size of an entrepreneur affects its rights and obligations. Non-SMEs are large entrepreneurs (“LEs”).
The first definition of an SME is contained in the Entrepreneur Law (“EL”), the second in the Act on countering excessive delays in commercial transactions (“Payment Backlog Act”).
The main difference is that under the EL, only the data / individual results of the company in question are taken into account, while the definition in the Payment Backlog Act (which refers to EU regulations) mandates that the data of affiliated and partner companies be taken into account as well. Specifically, this will include data of entities in the same capital group, including sometimes foreign companies.
Therefore, a Polish company belonging to a capital group may be an SME under the EL regulations, but a large enterprise within the meaning of the Payment Backlog Act (this involves the obligation to inform counterparties of LE status). Recently, this distinction has been important, among other things, in the context of statutory maximum prices for electricity. Eligible recipients included SMEs within the meaning of the EL. As a result, these entities were able to make a statement on their inclusion in the price caps, regardless of their status under the Payment Backlog Act.
In view of the described differences in the definitions of SMEs, it is worth examining which definition applies in a given case. The correct assessment will have important consequences for the company both in terms of rights and obligations.