The district court acquitted the entrepreneur of the charges two violations of the fact that, as a representative of the company, contrary to the ban on trade on Sunday, he entrusted his work in trade on those days 15 persons hired on contract contract contract in shops. The interpretation doubts were dispelled by the Supreme Court’s resolution, according to which the entry in the REGON register was decided on the basis of the Act on the restriction of trade on Sunday.
Application of the Act of 10 January 2018 on the restriction of trade on Sundays and holidays and on certain other days (Journal of Laws of 2018, item 305 t.j. Journal of Laws of 2019, item 466, (hereinafter referred to as the Trade Restriction Act), there are still many interpretation doubts.
As per content Article 6(2) Act on the restriction of trade overriding activity means the type of overriding activity indicated in the application for entry in the national official register of entities of the national economy referred to in the Act of 29 June 1995 on public statistics
Restriction of trade on Sundays – principle and permissible derogations
According to Article 5 Trade restriction laws in commercial establishments are prohibited (Article 5(1)); entrusting an employee or an employee to carry out trade and trade-related activities (Article 5(2)).
This principle modifies Article 6 Trade Restriction Act , which is an exhaustive list of cases where the prohibition referred to in Article 5 The Trade Restriction Act is not applicable. According to Article 6(1)(6) it includes commercial establishments where the dominant activity consists in the trade of newspapers, public transport tickets, tobacco products, ticketing of games of chance and mutual betting.
Settlement of the District Court
Giżyck District Court found the entrepreneur guilty of committing two violations of the fact that, being a representative of a company against a trade ban, she entrusted in those days her work in trade 15 persons hired on contract contract contract in shops. The Court of First Instance fined the fine 3,000 PLN.
The defendant pointed out that the sale of tobacco products appears in the entry in the National Court Register as predominate in the company's activities, and that the ban on trade on Sunday does not apply to stores which belong to the company represented by it, as the sale of cigarettes was the main activity there from the beginning.
The District Court assessed the explanations blamed as a defence line incompatible with the applicable rules. According to the Regional Court, the Law on the restriction of trade on Sundays did not allow the interpretation presented by the accused, and if each entrepreneur interpreted the provisions of the Act in this way, all food shops, where there is even a small sale of tobacco products, would be open on the days covered by the prohibition of trade.
The defendant makes an appeal – the district court doubts the interpretation of the law
The defendant challenged the decision of the district court and filed an appeal, and the case was pending before the Olsztyn District Court (reference no. VII Ka 799/18).
In the course of the procedure, on 31 August 2018, The Olsztyn District Court has requested the Supreme Court to resolve a legal issue requiring a fundamental interpretation of the law, with a view to resolving doubts arising from the application of the law Article 6(1)(6) Trade Restriction Act.
The District Court asked: ‘Is the prevailing activity referred to in Article 6(1)(6) Act of 10 January 2018 on the restriction of trade on Sundays and holidays and some other days (Journal of Laws of 2018, item 305), it is an activity consisting in the combined trade in newspapers, public transport tickets, tobacco products, coupons of games of chance and betting, or it is sufficient that it is an overwhelming activity with only the subject-matter one from the ranges indicated there?"
The Supreme Court dispels doubts
Supreme Court on 19 December 2018 adopted a resolution (reference no. I KZP 13/18) and took the view that the ‘overriding activity’ referred to in Article 6(1)(6) The Trade Limitation Act is an activity involving trade in combined press, public transport tickets, tobacco products, coupons of games of chance and betting, as well as such activity which has only the subject-matter one from indicated in this product range rule.
The Supreme Court also stressed in the explanatory memorandum of the resolution that according to the content Article 6(2) Act on the restriction of trade overriding activity means the type of overriding activity indicated in the application for entry in the national official register of entities of the national economy referred to in the Act of 29 June 1995 public statistics (REGON identification number) and activities mentioned in Article 6(1)(6)) The Trade Restriction Act is intended to prevail over other commercial activities not mentioned in that point.
Olsztyn District Court acquits the entrepreneur
The Olsztyn District Court, bearing in mind the view expressed by the Supreme Court in its resolution, indicated that ‘overriding activity’ means the type of overriding activity indicated in the application for entry in the national official register of national economic operators.
The Olsztyn District Court found it erroneous and unacceptable to interpret the concept of ‘overriding activity’ by referring to other legal acts using the same concept or to the common understanding of it. In the judgment of the court referred to under the Law, the legal definition expressly prejudges that the applicant for the national register defines ‘overriding activity’.
The Regional Court in Olsztyn stated that although the above proposal may raise doubts as to possible freedom, the law and the application of so-called legal definitions cannot be called into question, since in cases of special provisions, an extension interpretation is not acceptable – especially under criminal law, and to the detriment of blame.
Consequently, the Olsztyn District Court held that the defendant did not infringe the Trade Restriction Act and amended the contested judgment, acquittaling the defendant of the alleged conduct.
Author:
Michał Skwarek - counsel application in the legal department Russell Bedford Poland. Graduated from the Faculty of Law and Administration of the University of Warsaw.