On Monday, April 30, the so-called business constitution – a set of five laws that are designed to make life easier for entrepreneurs. The new regulations introduce significant changes in business operations, including in contact with offices. The Constitution for Business includes:
• entrepreneurs’ right;
• Law on the spokesman of Small and Medium-sized Entrepreneurs;
• Act on the Central Register and Information on Economic Activity and the Information Point for the Entrepreneur;
• Act on the rules for the participation of foreign entrepreneurs and other foreign persons in the course of trade on the territory of the Republic of Poland;
• Regulations introducing the Act – Entrepreneurs’ Law and some other acts from the Constitution of Business Package.
Entrepreneurs’ rights will replace the Act on the freedom of economic activity of July 2, 2004. Pursuant to the Act, the definition of economic activity will no longer include the calculation of activities. Instead, it will point to the characteristics of such activities, namely: organization, earning, performing it on its own behalf and continuity (Article 3).
Some people will be able to do business without its prior registration (a non-registered activity – that is, performed by a natural person whose income due to this activity does not exceed 50% of the minimum wage in any month and which did not perform any economic activity in the last 60 months (art. 5). This will mean that people performing small or odd jobs will not have to register in CEIDG and pay ZUS contributions, provided that the value of monthly income does not exceed half of the minimum wage (in 2018, PLN 1050). These premises may, however, if desired, submit an application for entry into CEIDG. Such activity will become an economic activity as of the date specified in the application If, the income due from the activity exceeded the given amount in the given month, this activity becomes a department economic activity, starting from the day on which the amount of revenue has been exceeded. In such a case, the person conducting business activity submits an application for entry into CEIDG within 7 days from the day on which the amount of revenue due was exceeded. Unregulated activity can not be considered as regulated activity (Article 44 (3)). Provisions on the activity of the non-registered activity are also applicable to activities performed by persons who were not entered into the CEIDG within 12 months before the effective date of entry into force or whose entry was deleted from the register earlier than 12 months before the entry into force of the entrepreneurs’ law, even if in the last 60 months before the day of entry into force of the Act they were engaged in business activity (Article 193 – Introductory Regulations).
The Act provides for “Relief to start.” According to art. 18 of the Act, an entrepreneur who is a natural person who undertakes a business activity for the first time or resumes it after at least 60 months from the date of its last suspension or termination and does not perform it for a former employer for whom the or in the previous calendar year, within the framework of an employment relationship or a cooperative employment relationship, activities falling within the scope of performed business activity are not subject to compulsory social insurance for a period of 6 months from the day of starting business activity. The use of the “start relief” depends on the will of the entrepreneur, because he may renounce this right by filing a social insurance application (Article 18 (2)). This means that a novice (authorized) entrepreneur will have to register for compulsory social insurance within 6 months from the day of starting a business activity, not within 7 days, as before. Then the entrepreneur can use the so-called “Small ZUS” for 2 years. However, this does not apply to premiums for health insurance, which will also be compulsory for those entrepreneurs who will benefit from the “start relief”.
Business activity can be undertaken on the day of submitting an application for entry into CEIDG or after entering into the Register of Entrepreneurs of the National Court Register (Article 17).
The Act introduces an obligation for entrepreneurs to use a payment account when making or accepting certain payments related to their business activity (Article 19).
The entrepreneur’s identification in official registers is based on the tax identification number (NIP) (Article 20).
Article 24 paragraph 1 of the Act speaks of the possibility of suspending the performance of business activities and the resumption of its performance by both entrepreneurs entered in CEIDG and entrepreneurs entered in the National Court Register.
The entrepreneurs’ right introduces the most important rules binding entrepreneurs and rules binding public authorities in relations with entrepreneurs (Article 2 and Articles 8-15). These rules result directly or indirectly from the Constitution of the Republic of Poland. These rules include:
• The principle of freedom of economic activity and equality of entrepreneurs (Article 2) – this is the basic principle expressed by the right of entrepreneurs, which means freedom in taking, executing and ending economic activity for everyone on an equal basis, including, for example, the possibility of choosing the organizational and legal form activity as well as freedom of contract;
• The “what is not a prohibited law is allowed” (Article 8) – means resolving doubts in favor of the entrepreneur. An entrepreneur may take any action, except for those prohibited by law. An entrepreneur may be obliged to perform specific behavior only on the basis of legal provisions;
• The principle of fair competition and respect for good manners and the legitimate interests of other entrepreneurs and consumers, as well as respect for and protection of human rights and freedoms (Article 9);
• The principle of presumption of integrity of the entrepreneur (Article 10 paragraph 1) – the body is guided in its actions by the principle of trust in the entrepreneur, assuming that it acts in accordance with the law, honesty and with respect for good manners;
• The principle of resolving factual doubts in favor of the entrepreneur (Article 10 (2)) – if the subject of the proceedings is imposing an obligation on the entrepreneur or limiting or declining the right, and in this respect there are unmistakable doubts as to the actual state, the body decides on the facts the benefit of the entrepreneur;
• The principle of friendly interpretation of the provisions (in dubio pro libertate) (Article 11) – if the subject of proceedings before the authority is to impose an obligation on the entrepreneur or limit or withdraw the right, in the case there are doubts about the content of the legal norm, these doubts are resolved in favor of the entrepreneur unless the conflicting interests of the parties or the interests of third parties are contrary to which the outcome of the proceedings has a direct impact. An exception to this rule can only take place if an important public interest requires it;
• The principle of deepening trust, proportionality, impartiality and equal treatment (Article 12) – the authority conducts proceedings in a way that inspires entrepreneurs’ trust in public authority, guided by the principles of proportionality, impartiality and equal treatment;
• Principle of officials’ liability for violation of law (Article 13) – public officials are liable for infringement of law caused by their act or omission under the rules set out in separate regulations;
• The principle of legal certainty (Article 14) – the authority without any justified reason does not deviate from the established practice of settling cases in the same factual and legal state;
• Principle of providing information (Article 15) – the authority, within the scope of its jurisdiction, provides the entrepreneur with information about the conditions of taking up, exercising and terminating economic activity.
If you handle business matters, the following rules will apply:
• The authority can not refuse to accept incomplete applications and letters. The authority can not demand documents or disclosure of data, the necessity of submission, submission or disclosure does not result from legal provisions or data which are in the possession of the authority or to which it has access on the basis of separate provisions (Article 31). This is to protect the entrepreneur. Ministers of small and medium-sized enterprises will be able to oblige themselves to issue explanations by ministers and central authorities.
• Article 34 para. 1 stipulates that the entrepreneur may submit an application to the competent authority or competent state organizational unit regarding the scope and manner of application of the regulations, which result in the entrepreneur’s obligation to provide public tribute or social security or health insurance premiums in his / her individual case (interpretation individual).
Pursuant to the Act, there will be a restriction of business control. The business activity control of entrepreneurs is to be carried out according to the principles set out in the Entrepreneurs’ Rights Act, unless the principles and methods of control result from ratified international agreements or directly applicable European Union law (Article 45 paragraph 1).
In addition, the rules for the development of draft normative acts in the field of commercial law and the assessment of their functioning are regulated in art. 66-71. These provisions regulate the principles of drafting normative acts by entities having a legislative initiative defining the conditions for taking up, exercising and terminating economic activity, as well as the rules for monitoring the effects of the adopted acts of this type.
In addition, the changes also included the Act on the Central Registration and Information on Business and the Information Point for the Entrepreneur. The new regulations are to improve the functioning of the Central Register and Information on Economic Activity (CEIDG) and the Single Contact Point, which will be replaced by the Entrepreneur Information Point (PIP). The changes are effective from 30/04/2018, except art. 52 par. 2 and 9 of the U.c. D..d.g. concerning the Information Point for the Entrepreneur. The act is to ensure more efficient service for entrepreneurs. The registration process and making changes to the data entered in CEIDG will be simplified.
The sharing of data provided by entrepreneurs will be changed. Data collected in CEIDG will be divided into: registration and information data. The registration data will have to be changed within 7 days from the date of the change. The provision of data to third parties is aimed at improving the administrative proceedings that are carried out under the CEIDG.
The Act on the Rules of Participation of Foreign Entrepreneurs and Other Foreign Persons in the Trade in the Republic of Poland, which is located in the Constitution of Business, aims to encourage foreigners living in Poland and foreign investors to develop their activities in our country. The new regulations set the rules for the taking-up and pursuit of economic activity by persons from abroad in Poland and the rules for the creation by foreign enterprises of branches and representative offices in our country.
The aim of the Act on the Advocate of Small and Medium-sized Entrepreneurs, which is also included in the Business Constitution package, is the appointment of a person who is supposed to protect the rights of micro-, small and medium-sized enterprises.
The main task of the Ombudsman of Small and Medium-sized Entrepreneurs is to be to ensure proper implementation of the principles of the Business Constitution. This is to protect the interests of micro, small and medium-sized enterprises or improve the legal environment in which they operate. The SME spokesman will also have to give opinions on draft legal acts concerning the interests of micro-, small and medium-sized enterprises and the principles of conducting business activity as well as assistance in organizing mediation between entrepreneurs and public administration bodies. He will also deal with cooperation with non-governmental, social and professional organizations whose aim is to protect the rights of entrepreneurs. The spokesperson is to first of all respect the principle of freedom of economic activity and deepening the confidence of entrepreneurs in public authorities, impartiality and equal treatment as well as the principle of fair competition.