Geschäftsfreiheit in Polen änderung des Gesetzes vom 2.07.04

Starskies2000 · Insider Anmeldungsdatum: 15.09.2003 Beiträge: 910 Wohnort: NRW

SPECIAL SECTION
Freedom of Business Act
A Breakthrough or a Continuation?
1 September 2004

On July 2, 2004, the Polish parliament adopted the Freedom of Business Act (“FBA”), which—as its name implies—is designed to guarantee the freedom of doing business in Poland. Indeed, the FBA contains new regulations protecting businesses from unjustified intervention of public authorities. There is no doubt that the new regulation means progress in certain areas. On the other hand, the framework is not entirely free of imperfections that may hinder some kinds of business activity, and its scope could be wider to cover certain fields of business which seem to be overregulated. Accordingly, we will concentrate in this article on telecommunications and insurance as a good illustration of the three aspects of FBA introduction.

There is a principle, laid down in art. 6.1 of the FBA, that everyone is equally free to take up, conduct and finish any business activity (subject to statutory conditions). However, there are still sectors where conducting specific business activities continues to be subject to a permit, as the FBA requires in art. 75 by referring to other specific laws. Among those laws is the Telecommunications Act enacted on July 21, 2000. But in the meantime we have a new Telecommunications Act dated July 16, 2004, which is to enter into force on Sept. 3, 2004.

This law is a case of a successful and quick (from that point of view) implementation of FBA provisions. The telecommunications Act qualifies telecommunications as a regulated activity for the purposes of FBA statutory definition. Consequently, anybody wishing to commence telecommunications activity will have to apply in writing to the President of the Office for Telecommunications and Post, setting out basic particulars of the applicant, a description of the intended activity, its geographical area and its commencement date. The registration authority (the procedures have been made easier here in that the application can be filed with a competent business registration authority with a reference to the regulated activities registration authority) has seven days to make the registration and if there is no registration after 14 days, the applicant can commence their telecommunications business. Note that, in addition to the application, you have to provide a statement that the application data are true and that you know and meet the requirements for a telecomunications business as set out in the Telecommunications Act. If the statement proves false, you may be liable under art. 233.6 of the Criminal Code.

The regulatory framework described above creates simple and short procedures for those wishing to enter the telecomunications market, but requires a thorough knowledge of the telecommunications Act because criminal liability may result from making a false statement on the knowledge of statutory requirements for the business.
The FBA restricts public authorities in their inspection powers. Firstly, it imposes time limits on inspections, which may not generally be longer than eight weeks per calendar year. Secondly, it does not permit to conduct more than one inspection at a time. Although this is undoubtedly progress, the new regulations are not free from imperfections.

The inspection restrictions do not apply to “activities subject to supervision under the Insurance Activity Act and the Insurance and Pension Funds Industry Supervision and Insurance Ombudsman Act” (the “insurance Supervision Act”). This provision may lead to controversy on whether the restrictions cover insurance intermediation. The Insurance intermediation Act is not mentioned among the regulations excluded from the ambit of inspection restrictions. On the other hand, there are references to the Insurance Intermediation Act in the Insurance Supervision Act, which is itself excluded from the new inspection restrictions framework. Therefore, it is unclear whether insurance intermediaries may be subject to parallel and/or multiple inspections per year and what inspection time limits are in effect in relation to them.

The controversy resulting from the imprecise wording of the FBA illustrates another aspect of the problem: business can be hindered not only by wrong and inefficient legal solutions but also by imprecise laws. Where different interpretations are possible, there is an increased risk of mistaken decisions. The FBA should have avoided such serious flaws.

Another important issue is the extent of powers of the Insurance and Pension Funds Supervisory Board in relation to insurance brokers. The Insurance intermediation Act provides that the regulator may hold inspections of the operations and financial position of entities pursuing brokerage activities. Since independent insurance intermediaries are required to carry professional indemnity insurance, it seems unnecessary to control their financial position. As a rule, the client will be compensated by the insurer rather than the broker themselves. Moreover, in accordance with the Insurance Intermediation Act, the permit for an insurance broker will be issued irrespective of the candidate’s financial position. Neither can the permit be withdrawn solely by reason of the broker’s poor financial standing. In consequence, it may seem that the powers of the regulator in relation to brokers’ financial position are excessive. The FBA was supposed to eliminate such overregulation, so it could have moderated the powers of the Insurance and Pension Funds Supervisory Board vis-a-vis insurance brokers, which unfortunately has not been done.

Although the FBA has imperfections, we have a generally high opinion on the new regulation. Let us hope that this is only the first step and there will be no rollback of the general plan by introducing restraints by way of specific back-door legislation or regulation.

Agnieszka Wiercińska
advocate and partner at Wierciński, Kwieciński, Baehr law firm
Jakub Pokrzywniak
lawyer at Wierciński, Kwieciński, Baehr law firm

Starskies2000 · Insider Anmeldungsdatum: 15.09.2003 Beiträge: 910 Wohnort: NRW

New Act
On July 2, 2004, the new Act on Freedom of Business Activity (the “Act”) was adopted. The goal of the Act is to facilitate and extend business freedom. The new Act will replace the former Act of 1999. The Act regulates all aspects of undertaking and conducting business activity by Polish and foreign entrepreneurs.

Restrictions on Business Activity
In the former legal status, business activity was limited in various forms, i.e., in addition to permits and concessions following directly from the recently repealed act, there existed numerous other restrictions (licenses, certificates, approvals). additionally, the terms and conditions for the conduct of certain types of business activity were set forth in regulations of lower importance than laws, which often resulted in arbitrary decisions by clerks and did not fully comply with the constitutional principle of admissibility of restrictions introduced exclusively by laws and in connection with important public interest. Furthermore, laws introducing concessions or permits for undertaking certain businesses frequently established autonomous solutions, which were often much more restrictive than those set forth in the repealed act.

In general, the Act provides for the following “types” of restrictions on undertaking and conducting business activity: concessions, permits and entries in the register of restricted business.

Concessions
Concessions were also regulated in the former act; however, the new Act limits the scope of business activity in terms of concessions to six areas. In comparison with the former act, the legislator resigned from concessions for construction and operation of toll roads, management of railways and railway transport.

One new solution in the area of concessions is the elimination of the need for authorization from the minister competent for business activity to issue an ordinance listing documents required upon filing an application for a given concession. The new Act provides that the list of required documents may be set exclusively in regulations pertaining to licensed business activity. Therefore, the legislator limited the possibility for arbitrary decisions upon awarding concessions. Another novelty is the institution of a tender in circumstances where the number of entrepreneurs who meet the conditions for awarding a concession is higher than the number of concessions to be awarded. In this case, the concession-granting authority selects offers on the basis of proposed fees for the concession.

Less Permits
In addition to concessions, the repealed law provided for permits as instruments limiting freedom of business activity. The new Act does not resign from permits but introduces a new solution that consists of replacing certain permits with an entry in the relevant register of restricted business.

The former law did not provide for a list of areas in which the undertaking of business required a permit, but referred to separate laws in this respect. Thus, it was not possible to determine, by analyzing exclusively the provisions of the repealed act, whether a given type of business was subject to restrictions or not. Compared with regulations formerly in force, no permit is required for undertaking the following business activity:
- production or bottling of wine and wine products,
- running vehicle examination centers,
- organizing tourist events,
- detective services,
- money exchange businesses,
- production or warehousing of bio-components,
- organizing hunting events for foreigners,
- production, purification,
denaturation or dehydration
of ethanol and manufacture of tobacco products,
- production or bottling of spirits; and
- warehousing business.

Register of restricted business
Permits for conducting business in these areas were replaced with entries in the register of restricted business maintained by the authority designated in the laws regulating the given business activity. While filing an application for entry in the register of restricted business activity, an entrepreneur expresses the intent to meet the terms and conditions required for conducting the given business in accordance with regulations applicable to such business.

This statement will replace a set of documents which the applicant was obliged to file in the former legal system. The entry is made ex officio after the application and the statements are filed. In practice, this solution considerably simplifies and shortens the procedures for undertaking business. However, it should be pointed out that an entrepreneur bears criminal liability for the accuracy of the statement. If a false statement is made, the entrepreneur may be subject to imprisonment. In addition, the authority maintaining the register of restricted business is authorized, by virtue of law, to inspect business activity and may, if irregularities in its conduct are identified, issue a decision prohibiting the entrepreneur from carrying out such business.

Regulations provide that entrepreneurs who, on the effective date of the new Act, hold valid permits for conducting business in areas specified in the above regulations, which require only an entry in the register of restricted business, will be entered in the register ex officio.

The undertaking of business activity in areas requiring exclusively an entry in the register of restricted business undoubtedly means an acceleration and simplification of the relevant procedure; however, the legislator has not completely eliminated permits, which are maintained in the listed areas. Permits were retained, inter alia, under the provisions of the law on public trading in securities, investment funds, insurance and special economic zones as well as the Aviation Act, Banking Act, Telecommunications Act and Postal Act.
Contrary to former regulations, the new Act does not regulate the terms and conditions of obtaining permits. It merely specifies the types of business which require permits and refers to specific laws for details connected with obtaining such permits.

Other Restrictions
Other documents restricting the undertaking of business activity and set forth in the new Act are licenses and approvals. Licenses are required for undertaking business activity in the area of road transport, passenger or cargo railway transport, and vehicle rentals. Approvals are required for maintaining payment systems or securities settlement systems.

The legislator regulated licenses and approvals referred to relevant laws for detailed terms and conditions of conducting such activity.
Evaluations concerning whether the new Act will play its intended role in stimulating entrepreneurship and whether the changes introduced will actually facilitate business activity will be possible a few months after the Act’s entry into force.

Magdalena Falęcka
and Karolina Nawrot
The authors are attorneys-at-law running a law firm that concentrates on legal services for entrepreneurs in commercial and corporate law. Contact: fax/tel: (+48-22) 436 63 60;