In January of this year, another draft law on the transparency of public life (Law) was published. It should be indicated that the objectives outlined in the justification of the Act, i.e. The fight against corruption or strengthening the transparency of public life is absolutely right, but some of the provisions of the Act significantly interfere with citizens' right to privacy, which should be assessed critically.
According to the information provided by the Ombudsman, he received a number of citizens' complaints for the bill. Many negative comments were also made during the public consultation on the draft Act. The legislator agreed with some and amended the proposed provisions, but did not share all the doubts and some objections and proposed solutions were rejected.
If it is established that anti-corruption procedures are apparent or ineffective or that the trader has not implemented them at all, the Head of the Central Anti-corruption Office will be able to refer the application to the President of the Office for Competition and Consumer Protection to impose fines on the entrepreneur concerned from 10,000 PLN to 10,000,000 PLN.
It should be indicated that the scope of the information required in the statement of property, as stated in the Article 44 The bill, it's very broad. The legislator expects to disclose details of the property or income of the person required to deposit it, setting a low income threshold i.e. above 1,000 PLN.
Positively, it is appropriate to assess the deletion of the provisions in the original content of the draft Act requiring information relating to the income of the spouse. However, the legislator requires information on the components of movable property.
This also applies to property which is part of an agricultural holding or business activity carried out by the person filling out the declaration of property, as well as his or her spouse, if he or she remains in the property community.
Responsibilities of anti-corruption practices
The Act requires entrepreneurs to adopt and apply internal anti-corruption procedures. This obligation shall apply to entities which are at least medium-sized enterprises within the meaning of the rules. Act dated 2 July 2004 freedom of business. The use of internal anti-corruption procedures means the taking of organisational, personnel and technical measures to counter the creation of an environment conducive to the offences in question. Under section 1, by persons acting on behalf of and for the benefit of the trader, in particular:
- 1) to prevent the creation of mechanisms to finance costs, grant property and personal benefits, including through the use of the company's assets;
- 2) familiarising the persons employed by the entrepreneur with criminal liability rules;
- 3) the inclusion in the contracts of clauses which constitute that no part of the remuneration for the performance of the contract will be intended to cover the costs of granting property and personal benefits;
- 4) the development and implementation of the corporate anti-corruption code, as a declaration rejecting corruption, signed by each employee, co-worker and other economic operator acting for the trader;
- 5) define and implement an internal procedure and guidelines for the gifts and other benefits received by employees;
- 6) not taking decisions in an undertaking based on corrupt actions;
- 7) develop and implement procedures for informing the competent authorities of corruption proposals;
- 8) developing and implementing internal procedures for reporting irregularities.
In a situation in which the prosecutor accuses a person acting on behalf of or on behalf of a trader, the Central Anti-corruption Office will have the right to carry out checks on the implemented anti-corruption procedures of that entrepreneur.
If it is established that anti-corruption procedures are apparent or ineffective or that the trader has not implemented them at all, the Head of the Central Anti-corruption Office will be able to refer the application to the President of the Office for Competition and Consumer Protection to impose fines on the entrepreneur concerned from 10,000 PLN to 10,000,000 PLN.
It should be stressed that the findings of the control carried out by the Central Anti-corruption Office and the amount of the penalty requested by the Head of the Central Anti-corruption Office, contained in the application for punishment, are binding on the President of the Office for Competition and Consumer Protection.
An entrepreneur who has been fined for a period 5 years after the date on which the decision to impose this penalty has been approved, it may not apply for a public contract.
Support for risk management of anti-corruption activities
Consequently, entrepreneurs subject to the obligations under the Act will have to ensure that the anti-corruption procedures introduced are not considered as apparent or ineffective during any checks.
Indicate here a document in the form of an International Standard ISO 37001 „Anti-corruption management systems – requirements along with usage guidelines”, developed by the International Organisation for Standardization (ISO).
This standard can be a support to all public and private sector entities, government, government, state-owned companies, small companies and large corporations interested in systemic corruption prevention.
First of all, implementation of the standard ISO 37001 can raise the awareness of workers in the area of anti-corruption, as well as identify actors third, that the entrepreneur applies international standards of compliance.
If we take into account the possibility of recognising the anti-corruption procedures used during the review of the Central Anti-corruption Office, the application of the standard ISO 37001 provides some kind of protection for the trader against the consequences of acts committed by employees or persons acting on behalf of or for the trader.
In implementing the governance system described in Norm, it is easier to safeguard yourself against allegations of lack of supervision or allegations of insufficient efforts to eliminate corruption in the course of business activity.
Author:
Piotr Bachnik
Attorney at the law firm Russell Bedford Poland, affiliated with the company since February 2016.
He holds legal education, graduated from the Faculty of Law and Administration of the University of Warsaw and graduated from the Italian and European Law School at the Warsaw University of Warsaw, together with the Faculty of Law of the University of Catania, Italy. In years 2014-2016 worked at Maminski & Partners.
He specializes in criminal law, judicial enforcement and civil law. He speaks English with legal terminology.