Officials have repeatedly tried to exclude various checks from the rules of the Entrepreneurs' Law. The SME spokesperson warns that such actions violate the spirit and the letter of the Business Constitution.
Business law lays down rules on which checks may be carried out. For example, they cannot be in the company several times at a time, and the time of such control cannot be unlimited and should not disorganise the company's work. Unfortunately, in subsequent drafts, the laws try again and again to shut down controls from these rules. Such actions of officials are contrary to the spirit and letter of the Constitution for Business," said Adam Abramowicz, MSP spokesman.
Some of the fundamental principles of the Business Constitution are the proportionality and adequacy of actions taken towards entrepreneurs by state authorities. In order to ensure compliance with these principles under the control of entrepreneurs in the Act – Business Law in the chapter 5 restrictions on business control have been introduced. The provisions of this Chapter are therefore of a guarantee nature to traders.
Among the tasks of the Ombudsman are, among others, the opinion of draft normative acts concerning the interests of entrepreneurs and the principles of undertaking, performing or terminating business activity in the territory of the Republic of Poland, as it provides Article 8(1) Act on the Ombudsman of SMEs. Using this competence, the SME Ombudsman has seen further attempts to exclude the chapter in recent months 5 Act – Law of entrepreneurs in legal acts designed by various bodies.
Letter 19 November 2020, sign: WPL.774.2020.ŁP, The Ombudsman submitted an opinion to the Minister of Infrastructure to the draft law amending the Act – Traffic Law and some other laws (No on the list of works of the Council of Ministers: UC48), in which he stressed that the proposed new wording Article 83c Road traffic laws exclude protection provisions from the scope of business control, i.e.
Article 48(1) and Article 54 Right of entrepreneurs to ad hoc checks. In his speech, the Ombudsman requested the removal from the proposed regulation of the exemption for ad hoc checks of the relevant business law. In the new version of the project with 9 June 2021 changed sound Article 83c Traffic laws.
Letter 21 January 2021, sign: WPL.70.2021.GG, A spokesman for SMEs addressed an opinion to the Ministry of Finance to the draft Act amending the Accounting Act and some other laws (No on the list of works of the Council of Ministers: (UD154), in which he drew attention to the proposed amendment Article 124(6a) Act of 11 May 2017 of auditors, excluding Article 51 Business rights (i.e.
one from the provisions on restrictions on business control). Letter 27 August 2021, sign: WPL.70.2021.GG, in view of the changes made to this project, The SME spokesperson stressed that the consulted project still contains content that does not comply with the principles of Business Law.
Letter 12 November 2021, sign: WPL.839.2021.DL, The Ombudsman addressed the opinion to the Polish Parliament to the draft law amending the law. – Business law (print no.
1402), in which he drew attention to the proposed amendment to the Business Law, which boils down to the extension of the catalogue of exceptions, when no notice is made of the intention to initiate control of the situation where the control is carried out under the provisions of the Act of 13 April 2007 About State Labour Inspection.
In this speech, the SME spokesperson pointed out that the creation of exceptions in this respect, such as the removal from the legal order of the notice of intent to initiate controls, results in a negative reception by traders of business activity rules.
In addition, it should be noted that in the Communication from 31 December 2020 (https://rzecznikmsp.gov.pl/rzecznik-msp-dostrzega-narastajacy-problem-wylaczania-ochronnych-przepisow-o-kontroli-przedsiebiorcow/) An SME spokesperson has already alerted about examples of such practices, indicating the following cases:
By letter dated 6 August 2020, sign: WPL.206.2020.PD.DL, A spokesman for SMEs addressed an opinion to the Minister of Health to the draft Act on Medical Devices (number in the list of works of the Council of Ministers: UC34) in which he drew the applicant’s attention to a violation of the principles of the Business Constitution to try to exclude the provisions of the chapter 5 Act – The law of entrepreneurs from the audit procedure towards public health institutions, which are at the same time entrepreneurs. The SME spokesperson claimed that the proposed exemption in this respect would deprive entrepreneurs of a number of rights, including the right to compensation for damage caused by the conduct of control activities in violation of the rules, the right to be present in the control activities of an entrepreneur or a person authorised by him, as well as the rules on the control of entrepreneurs such as the prohibition of simultaneous checks, the time limit of checks, the conduct of checks in a way that does not disturb the functioning of the entrepreneur and the prohibition of repeated checks and the same subject matter (in the draft adopted by the Council of Ministers and addressed to the Polish Parliament on the day of 9 November 2021 Regrettably, there is an exemption in terms of Article 54(55) Business rights);
In turn, on the day 29 September 2020 a draft Act amending the Competition and Consumer Protection Act (number in the list of works of the Council of Ministers: UC15) was published on the website of the Government Legislative Centre.
This project was intended to complement the competence of the President of UOKiKu with the competences provided for Regulation (EU) 2017/2394 of the European Parliament and of the Council 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EU) 2006/2004 (CPC Regulation).
However, this project also provided for the exclusion of control activities carried out under this Regulation from Chapter 5 Act – Business law, as reflected in the critical remarks of the SME Ombudsman addressed to the President of UOKiKu in a letter dated 8 October 2020, sign: WPL.653.2020.GG (The consultation and opinion phase of the project has not yet been finalised).
Another example in this respect is the draft Act amending the Act on the Trade Quality of Food and Agriculture and certain other laws (number in the list of works of the Council of Ministers: UD142), which is applied by the Minister of Agriculture and Rural Development.
In its opinion to this project of 23 December 2020, sign: WPL.976.2020.GG, The SME spokesperson pointed out that he considered the proposed exclusion of the guarantee from this regulation to be too far-reaching Article 58(1) Act – Law of entrepreneurs prohibiting control when it is to concern the subject matter of the inspection subject to the previously completed control carried out by the same authority (SME spokesman in writing with 3 September 2021, addressed to the Ministry of Agriculture and Rural Development, sign: WPL.976.2020.GG, in connection with ongoing work on the project, he reiterated that overregulation should not be introduced contrary to the provisions of Chapter 5 He asked for a review of the issue raised and for cooperation to prevent adverse legislative practices under the Business Constitution.
In the draft version addressed to the Committee of the Council of Ministers for Digital Affairs, exemption Article 52(1) The rights of entrepreneurs have unfortunately been preserved.