'Old Spice' can keep its name under the Polish language act
After two years of discussions, Parliament has adopted the Act on the Polish Language. The act now only awaits the signature of President Aleksander Kwasniewski (who had until Nov. 7 to sign) to become law. By the time you read this, the president will probably have signed the new legislation. If so, the act will likely come into force sometime next summer. What that means is that the quest to create a new world po polsku will begin.
Ever since the idea of a law mandating Polish language was brought to the public's attention, the idea of its implementation seemed rather terrifying. It appeared from the initial drafts, for example, that many foreign brand names or company names would have to be translated into Polish. This was best exemplified in the famous and grotesque Parliament discussion of a couple of months ago where some creative proposals were made for the Polish language equivalents of the "Old Spice" brand name. Commentators on the draft also threatened that cursing in public would be severely penalized. A far-fetched scenario was presented in which Telewizja Polska (TVP) lost its license because it transmitted a turbulent parliamentary debate during which one of the speakers got carried away in proving his point and used a word usually avoided by most people in civil conversations.
There is an old Polish saying that "the devil is never as terrifying as it has been painted." The legal regime introduced by the final version of the draft act does not seem so frightening after all.
The act has a fairly wide scope of application, mandating the protection of the Polish language and its use in "public activity" and "legal relations." The scope of the act, however, is specifically limited so as not to breach any legislation relating to the state's relationship with religious organizations or violate the rights of national minorities and ethnic groups.
According to the act, all public authorities and institutions and organizations participating in public life must protect the Polish language. The act lists examples of language "protection," including care for its proper use, creating conditions for its development, counteracting its vulgarization, propagating knowledge about the language and its role in Polish culture, propagating respect for local dialects and preventing their decline, as well as promoting the Polish language throughout the world and supporting teaching of it in Poland and abroad.
The act makes Polish the official language of the constitutional authorities of the state, all administrative authorities, local authorities and certain other entities, particularly those performing public tasks. In general, Polish is also the official language of teaching, exams and diploma theses in public and non-public schools of all levels.
While one may wonder if such regulations are really necessary, nevertheless, their practical influence on everyday life is likely to be fairly limited. The act does contain some more concrete regulations and novelties that require attention, however.
The act requires that the Polish language be used in legal relations on the territory of Poland between Polish entities or if at least one of the parties is a Polish entity. A "Polish entity" has been defined in the act as a natural person domiciled in Poland (which means a foreigner residing in Poland could also be considered a Polish entity) or a legal person or any organizational entity conducting activity in Poland. This requirement applies, in particular, to names of merchandise and services, offers, advertisements, instructions for use, information on the qualities of merchandise or services, information on terms of a guaranty, as well as invoices and confirmations of receipt.
The act bans, with the exception of individual names, exclusive use of foreign language terms in legal relations in Poland. Foreign language descriptions of merchandise and services, offers and advertisements are permissible, but must be accompanied by a Polish translation. These rules are clearly aimed at eliminating the still fairly common and annoying situation where, for example, a TV set bought in Poland has instructions in English, German, and ... Japanese, to name an exotic tongue, but not a word in Polish.
Near and dear to the hearts of us lawyers is the provision relating to the language in which an agreement may be concluded. The act specifies that if one of the parties to an agreement that is to be "performed" in Poland is a Polish entity, the agreement must be in Polish. Foreign language versions may exist, but the Polish version will be governing unless the parties determine otherwise. Agreements that do not have a Polish version remain valid, but the act seriously impairs the possibility of using these agreements in a judicial dispute as evidence of the parties' intent. Unfortunately, this provision is likely to cause confusion as it is not always obvious where an agreement is actually "performed." Nevertheless, foreigners doing business in Poland should take heart that a foreign language version of an agreement with a Polish party may be the governing version as long as a Polish version is also prepared and the parties remember to include a provision that the foreign language version prevails.
Finally, the act contains regulations on signs and information posted in public offices, institutions and public transportation. These types of signs and information must be in Polish. Foreign language translations may accompany them, but only in those cases and within limits set forth in an ordinance to be issued by the appropriate minister. The act contains a number of penalties for the breach of its provisions. These include monetary fines of up to zl. 5,000 and obligations to make a financial contribution of up to zl. 100,000 to a special fund.
To end on an optimistic note, the act excludes its application in certain situations. Among others, the language restrictions do not apply to individual names. "Old Spice" will remain "Old Spice" after all.
This article was prepared by Lejb Fogelman, managing partner of Hunton & Williams Poland, with the assistance of Bartlomiej Ziebinski, an associate attorney.
