Photo. Pressfoto / Freepik A few days ago the long-awaited bill – Law of Entrepreneurs entered into force. This law constitutes the axis of the so-called The Business Constitution and replaces the current Freedom of Business Act.
Existing from 2004 The Act on the Freedom of Economic Activity after numerous amendments became vague, and the repeal of the Act and replacing it with a new one in business environments was assessed positively. However, one cannot fail to notice that the loudly announced Business Law actually only regulates the legal regulations that have been in force so far. It also introduces, of course, a number of new solutions, but by far, the new law comes down to the systematisation of existing legislation.
The most important news has already been widely commented on, so it is enough to mention that the Business Law introduces, among other things, the possibility of carrying out so-called unidentified activities, the relief for start-ups and the possibility of suspending business activity for an indefinite period (but only for entrepreneurs included in CEIDG).
These are changes of great practical importance for entrepreneurs, with tangible benefits for them, such as the possibility of saving on contributions to the Social Security Office. However, in this article, I wanted to address less grasping issues whose practical meaning we will learn in time.
The purpose is specifically to introduce a catalogue of business rules and a set of guidelines for the conduct of officials.
How's it been so far, and what's it like now?
Until the entry into force of the Business Law, most of the rules of conducting business activities could be exported from the Polish Constitution, the Code of Administrative Conduct and from the case law. However, raising these rules to the statutory level will make it easier for entrepreneurs to exercise their rights.
It should be noted that the catalogue of business rules refers primarily to business relations with officials who do not like to interpret purpose or functionally. The introduction into the law of rules such as settling doubts in favour of entrepreneurs, applying the principle of legal certainty to them, or in dubiopro libertate (i.e.
the principle of friendly interpretation of the rules) should make life much easier for them, although these principles were already brought into force before the entry into force of the law in question. Article 2 The Constitution of the Republic of Poland, which provides a "clause of legal certainty".
Why, then, is the introduction of this catalogue of great importance for entrepreneurs? For this reason, the unambiguous indication of these principles in the Business Law should affect the interpretation of all regulations concerning entrepreneurs, and therefore also those contained in other laws or lower order acts.
It is. one „but’...
When you read a catalogue of business rules in Poland, you cannot be impressed that from 30 April 2018 each of us should start his own business and benefit from all the privileges that the legislator has generously given us. And there is something to benefit from, because the law of entrepreneurs provides, among others, for the principle of "what is not prohibited is allowed" (Article 8), presumption of fairness of the trader (Article 10(1)), settling doubts in favour of the entrepreneur (Article 10(2)), principle of friendly interpretation (Article 11), principles of enhancing trust, proportionality, impartiality and equal treatment (Article 12), the principle of legal certainty (Article 14), information provision (Article 15), principle of speed (Article 27), prohibition from requesting documents in the original or certified copy (Article 29), the principle of ‘reasonable terms’ or the obligation to accept an incomplete letter or request (Article 31).
This is what the courts will interpret, which is meant by ‘presumption of fairness’ or ‘which is not prohibited’. So we have to wait until the Business Law grows, because only then will we learn how far the freedom of economic activity in our country reaches.
Encouraged to start your own company? Not so fast. The above-mentioned rules have so many exceptions that they cannot be considered as rules. For example, the principle of settling doubts in favour of the entrepreneur concerns only unrefutable doubts about the facts.
It may apply only in proceedings involving the obligation or restriction or withdrawal of the power on the trader, and, as a matter of fact, the rule in question shall not apply if the parties concerned or the outcome of the procedure have a direct impact on the interests of the persons concerned.
third, separate provisions require the trader to demonstrate certain facts or require an important public interest, including the essential interests of the State, in particular its security, defence or public policy (Article 10(3)). Even the rules on business affairs are restricted.
For example, the authority may not require the trader to produce documents in the form of the original, certified copy or certified translation, unless such an obligation arises from legal provisions.
Another obstacle is that the general clauses used in the provision cited above, such as ‘important public interest’ or ‘essential interests of the State’, require courts to interpret them.
This is what the courts will interpret, which is meant by ‘presumption of fairness’ or ‘which is not prohibited’. So we have to wait until the Business Law grows, because only then will we learn how far the freedom of economic activity in our country reaches.
In addition, the Law of Entrepreneurs found itself very important Article 13, dealing with the responsibility of officers for a violation of the law, in contrast to the previous provisions, which referred to liability for a gross violation of the law.
Consequently, the existing rules concerning the property liability of officers for this gross violation of the law were in practice dead, as in Poland there was no case of bringing an officer to account in this respect.
However, it is not known how this will work after the entry into force of the Business Law, as the rules of responsibility of officers are to lay down separate rules. It's probably about regulations. Act dated 20 January 2011 the liability of public officers for a gross violation of the law, which has not been amended to date.
Limitations for individual interpretations
The provisions also deserve attention Article 33(34) Business rights. This is about legal explanations and individual interpretations. Legal explanations will be issued by "competent ministers" and "authorised bodies to prepare and submit draft legal acts to the Council of Ministers".
In turn, the request for clarification on the scope and manner of application of the rules (individual interpretation) will be able to be made by the entrepreneur to any authority, but (and here another restriction) may only be made by the application of the rules which require the entrepreneur to provide public tribute or social or health contributions.
This statutory restriction is curious, because on the basis of an analogous wording Article 10(1) The NSA has issued a judgment which is no longer in force on the Freedom of Business Act dated 29 September 2017, reference no.
II GSK 3556/15, in which he stated that an individual interpretation could also be requested as regards provisions imposing non-monetary obligations. The omission of this judgment is an important flaw in the bill. How will this work in practice? Again – time will tell.
These problems have already been addressed
During the public consultation phase, the draft laws from the package called the "Business Constitution" were raised, among others, by the Association of Employers of Poland.
While the very introduction of key principles for entrepreneurs and officials has been positively assessed, attention has also been paid to the dangerous number of exceptions to these rules as indicated in the Business Law. There was a fear that they would only make rules illusory.
An example of this is the chapter on the reduction of business control, which occupied almost half of the whole law (most of which were the exceptions to normal control rules).
This was the case in the final text of the Act, although it was proposed to revise and limit to the necessary minimum the list of exceptions and exclusions in this respect.
The excessive causisticity of the rules has also been criticised, which may limit the passage of certain rules of jurisprudence, e.g. directly from the Constitution and thus lead to a deterioration rather than an improvement in the situation of entrepreneurs.
Interestingly, many of the proposed changes, which were assessed “in particular positively” were not included in the final version of the Act. This includes the right to assess the quality of service at the office (requirement to provide assessment forms, i.e.
a specific register of complaints and complaints), or confirmation of the possibility for the body to perform oral (also by telephone) acts if the provision does not require written form. Too bad, because these simple changes could significantly increase the quality of cooperation on the business-official line.
He's going for good, but not as fast as we want.
In conclusion, the Law of Entrepreneurs must be regarded as a positive step in the right direction. However, one cannot resist the impression that the legislator could go even further in creating an appropriate environment for the development of entrepreneurship in Poland.
Let us therefore hope that the resulting gap will be filled by courts, interpreting exceptions to the rules as narrowly as possible (i.e. in accordance with the principle of exceptions non sunt extendendae) and taking account of the principles themselves to the fullest extent possible in each procedure.
Author:
Justyna Kyć
Legal adviser in the Legal Department
From 2017 associated with Russell Bedford Poland. He specializes in corporate customer service, in particular in drawing up and negotiating commercial contracts and providing ongoing legal advice.
Her experience includes the service of Clients from many industries, including public sector entities. He also has extensive experience in conducting disputes and representing clients before general and administrative courts.
At the Chancellery Russell Bedford It deals primarily with civil and economic law matters and comprehensive M&A transaction handling.
She is a graduate of the Faculty of Law and Administration at the University of Silesia in Katowice and of the Interdepartmental European Studies at the College of Europe/C olège d'Europe in Bruges (Natolin Campus). She also completed postgraduate studies in public procurement conducted by the Warsaw School of Economics. From 2015 Member of the District Chamber of Legal Advisors in Katowice.