The draft law on the transparency of public life met with crushing criticism, especially from the Ombudsman. Placing on a significant number of persons the obligation to make declarations of property under penalty five years of imprisonment are disproportionate and unconstitutional to him.
In addition to stringent requirements for disclosure of their assets, entrepreneurs were also required to implement "internal anti-corruption procedures". If such procedures prove to be ‘appropriate or ineffective’, a penalty from 10,000 to 10,000,000 PLN.
According to the justification of the bill, the aim of the act is to strengthen the transparency of the Polish state. Transparency of power is an unquestionable advantage that the law should favor. However, other values such as privacy must also be taken into account.
10,000,000 for the guilt of the subordinate
According to the Ombudsman's opinion, "the amount and extent of the legislative flaws make the bill not subject to further action in this form". The RPO primarily referred to property statements, which are to cover a group much wider than those "chosen in general elections, holding key state positions".
However, the range of novelties is wider. By Article 67. The proposed law of entrepreneurs of at least average size must apply internal anti-corruption procedures. This may seem to be the right course, but it may be a matter of concern. Article 77.
According to that provision, ‘an entrepreneur who has not developed internal anti-corruption procedures or... anti-corruption procedures were apparent or ineffective and a person acting on behalf of or on behalf of a trader has been accused of committing a crime specified in Article 67. section 1, is subject to a monetary penalty of up to 10,000 to 10,000,000 PLN.”
In short, if someone accepts a person who commits corruption and internal anti-corruption procedures are considered “appearable” they will pay for 10,000,000 PLN.
How to create anti-corruption procedures under the law
It can be comforted that the development of sound anti-corruption procedures will prevent the payment of a huge fine. However, there is doubt about what steps should be taken to ensure that such mechanisms are not "appearable or ineffective". He answers that question. Article 67. section 2.
There are suggestions for actions such as "not taking decisions in a company based on corrupt actions", "not knowing persons employed by an entrepreneur with criminal liability rules", "designing and implementing the company's anti-corruption code as a declaration rejecting corruption". The wording of this provision is, to put it mildly, vague, but the fine for failure to apply it has already been defined very precisely.
The Ombudsman accused the bill as a whole of, among others, the lack of consistency of definitions and concepts, legislative flaws and a short deadline for consulting the project. He also stressed the question of compliance with European Union law. According to the opinion of the RPO, the adoption of such a law “will expose Poland to the possibility for the European Commission to initiate further infringement proceedings against European Union law.”
Source: https://www.forbes.pl/opinie/przedsiebiorca-moze-dostac-10-mln-zl-kary-za-pozorne-procedury-antykorupcyjne/k4rs166
Author:
Andrzej Dmowski
Managing Partner Russell Bedford, Doctor of Legal Sciences, Lawyer, Tax Advisor, Restructuring Advisor, Certified Public Accountant – Expert Auditor in Ireland, Certified Fraud Examiner - Expert in Crime Detection and Abuse, Certified Internal Controls Auditor - International Internal Auditor.
Graduate of the University of Cambridge - British Centre for English and European Legal Studies - Faculty of Law and Administration, Graduate and Fellow of the Faculty of Law and Administration of the University of Warsaw.
Specializes in settlement of transactions between related entities - transfer pricing, legal and tax aspects of M&A and issues concerning derivatives of financial instruments.