LOBBYING IN POLAND

Authors:  Rudolf Ostrihansky and Mateusz Żuk (Sołtysiński Kawecki & Szlęzak)

Constitution: The Constitution is the supreme law of Poland and the normative basis of other legal acts. The sources of generally binding law are: the Constitution; statutes and regulations; ratified international agreements; and EU law. For the regulation of lobbying and government relations, there are also internally binding laws, such as the statute of the Sejm, which is the lower house of the parliament, even though it is disputed whether such internally binding laws should be applied.

The Constitution contains a broad catalogue of freedoms and civil rights. Everyone is guaranteed freedom of speech and freedom to organise and participate in peaceful assembly. Moreover, the right to submit petitions, proposals and complaints to organs of public authority, as well as to organisations and social institutions in connection with the performance of their prescribed duties within the field of public administration, is guaranteed.

Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by a statute, and only when necessary in a democratic state for the protection of its security or public policy, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations cannot violate the essence of freedoms and rights.

Legislative system: Poland is a parliamentary republic. The President has limited executive authority.

The Constitution entrusts principal legislative powers in the bicameral parliament consisting of the lower house (Sejm) and the upper house (Senate). The legislative competence of both chambers is not symmetrical as the Sejm has a dominant role. The basic function of the parliament is the adoption, through a legislative procedure, of statutes. In addition, the Sejm authorises the President, by way of an act, to ratify and terminate certain international agreements. The President has a right to veto a statute enacted by the parliament; however, the veto can be overruled by a three-fifths majority vote in the presence of at least half of the statutory number of members of the Sejm.

The Sejm is a participant in government formation, by granting the vote to a Council of Ministers appointed by the President or by appointing directly the Prime Minister and the cabinet members proposed by the Prime Minister. The Sejm also exercises control over the activities of the Council of Ministers, which is an executive body. Members of the government and the Council of Ministers bear full political responsibility to the Sejm. In order to establish the actual state of affairs in matters concerning the Council of Ministers and the subordinated administration, the Sejm may demand information on a given issue from a government member in written or oral form at a sitting of the Sejm or a committee.

According to the Constitution, there are 460 members of the Sejm elected in universal, equal, direct and proportional elections, conducted by secret ballot, and 100 senators elected in universal and direct elections by secret ballot. Members of the Sejm are elected for a four-year term of office. The mandate of the Senate begins and expires together with the mandate of the Sejm. The Constitution provides that parliamentary members are representatives of the nation and are not bound by the instructions of their electorate.

The right of legislative initiative belongs to a committee of the Sejm, 15 members of the Sejm, the Senate as a whole or 15 members of the Senate, the President, the Council of Ministers and 100,000 citizens. In practice, most legislative initiatives come from the Council of Ministers.

The secondary legislation (regulations) is issued by organs specified in the Constitution: the President; the Council of Ministers; the President of the Council of Ministers; ministers; and the National Broadcasting Council. A legal basis to issue a regulation is a specific authorisation contained in, and that has the purpose for implementing, statutes.

National subdivisions: The Constitution forms a basis for the law-making activity of communes, districts and provinces. Acts of local law issued by local government authorities are the sources of generally applicable law within the territory where the issuing organ exercises its powers. However, law-making activity of local government authorities is limited by an authorisation contained in the statutes.

The basic areas of legislative activity of the local government authorities include, inter alia, resolving the rules of managing property matters of local government, making decisions regarding the cooperation of territorial self-government units with other entities, or regarding local taxes and fees, which regulate matters relating to property taxes, taxes on means of transport, stamp duty, local fees, etc.

Consultation process: At national level, there are two types of consultation process. There is a public consultation within the government legislative process and a public hearing, which can be part of both the legislative process in the Sejm and the Senate, and part of the government legislative process. In contrast to the public hearing, the public consultation is a mandatory procedure.

Public consultations are carried out for draft bills, regulations and guidelines for statutes. As a part of the public consultation a draft act is presented to different social organisations or other interested entities or institutions. The consultation process is carried out at every stage of the legislative process, commencing early on. The consultation process should be conducted in an open and universal way to provide citizens with access to consulted documents.

A government bill may be subject to a consultation process after it is entered in the list of legislative work of the Council of Ministers. The referral of a bill for a consultation process is mandatory, but the referral of a bill to interested parties is decided on by the Council of Ministers. Opinions reported by the participants of the consultations are not binding on the government.

A public hearing can be conducted during the legislative process in the Sejm on the basis of a resolution of a committee. The date of the public hearing should be communicated at least 14 days (three days in some cases) before the hearing. All interested parties that confirmed their participation at least 10 days before the hearing, and entities that communicated their interest according to rules on lobbying activity, have the right to participate in the hearing. Public hearings can also be conducted by organs with the right to enact regulations, which should also announce the hearing at least seven days beforehand and allow the participation of all parties that communicated their interest at least three days before the hearing.

Public consultation at the local level relies on the consultation with residents of communes, districts and provinces. The results of consultation are not binding for local authorities. In some cases, at the level of communes and districts, there is an obligation to conduct consultations with residents, relating to, for example: zoning, merging, dividing and establishing the boundaries of communes, or abolishing them; giving the communes or towns the status of a city and establishing its borders; determining and changing the names of communes and the seat of their authority; and environmental impact assessments.

Judiciary: The Constitution sets forth the rule of the tripartite division of powers, which gives the judiciary a position independent of the legislature and the executive.

Judges, within the exercise of their office, are subject only to the Constitution and statutes. Judges are also irremovable. The dismissal of a judge from office, suspension from office, transfer to another office or to another position against his or her will may only take place by virtue of a court decision and only in circumstances specified in the law. Judges hold immunity, which means that they cannot be held criminally liable or deprived of liberty without the prior consent of a court. The Constitution requires judges to be apolitical; they cannot belong to political parties, trade unions or run a business that is incompatible with the principles of judicial independence.

Court judges in Poland are appointed for an unspecified period of time by the President on the motion of the National Council of the Judiciary. The Council is a constitutional organ safeguarding independence of courts and judges. The competence of the Council includes, inter alia, review and assessment of candidates for the post of judge of the Supreme Court, and judges of common courts, administrative courts and military courts.

Judiciary powers are also exercised by tribunals - the Constitutional Tribunal and the State Tribunal - whose members are appointed by the Sejm for a specified period of time.

General: Lobbying in Poland is regulated by statute. The Act on Lobbying Activities in the Legislative Process (the Lobbying Act) sets out the rules of transparency for lobbying activities in the legislative process, rules for the performance of professional lobbying activities and forms of control of lobbying activities. The Lobbying Act has also introduced rules for keeping a register of entities engaged in professional lobbying.

The Ministry of Interior has the power to impose a financial penalty, on the basis of an administrative decision, for performing activities falling within the scope of professional lobbying activities without having entered the register. The penalty may be imposed in the amount of 3,000 zlotys to 50,000 zlotys.

There is no guidance on lobbying. Apart from administrative liability, only activities prescribed in the Criminal Code (mainly bribery and influence peddling) are sanctioned.

Definition of Lobbying: The Lobbying Act defines lobbying activity as any activity carried out by legally permitted methods aimed at influencing public authorities in the legislative process. This definition does not include activities affecting the application of law (issuing decisions, granting licences, permits, etc).

The Lobbying Act also defines professional lobbying activities as gainful lobbying activities carried out for third parties in order to include the interests of those persons in the legislative process. According to this definition, a professional lobbyist is a person performing activities qualified as lobbying, if he or she acts on behalf of and for third parties, and receives remuneration for the provided lobbying services. A professional lobbyist may be both a natural person and a legal person acting under a civil law contract.

Registration and other disclosure: Professional lobbying activities can be performed after obtaining an obligatory entry in the register. An entity that performs activities that fall within the scope of professional lobbying activities that has not entered into the register is liable to a monetary penalty. Entry into the register is made on the basis of an application; it is not possible for the entity to register ex officio. The entry is made for an indefinite period. The registration of lobbyists is a form of control over lobbying activities, but it also provides for transparency. As of 6 November 2018, there are only 23 lobbyists acting in Sejm disclosed in the register. It is now a standard that lobbing activity is carried out not by professional lobbyists disclosed by register, but by, inter alia, chambers of commerce, trade associations and trade unions.

Activities subject to disclosure or registration: The Lobbying Act introduces an obligation for public authorities to immediately disclose in the Public Information Bulletin information on actions taken against them by entities engaged in professional lobbying, along with an indication of the manner of settlement expected by these entities. Lobbyists and their clients are not subject to the disclosure obligation.

The Lobbying Act requires public authorities to regularly report on the activities of entities that carry out professional lobbying activities. The Lobbying Act does not specify any rules on reporting contact with professional lobbyists, documentation of the contact or rules of behaviour of officials towards professional lobbyists. The obligation to prepare such regulations is delegated. Heads of offices serving public authorities, each within the scope of their activity, determine the detailed manner of conduct of the office’s employees towards entities engaged in professional lobbying activities, and entities that are not considered to be engaged in professional lobbying, including documenting this contact. All ministries have adopted lobbying procedures, whereas such procedures at the local government level are rare.

The obligation to document contact refers only to meetings with professional lobbyists; it does not arise in case of a meeting, telephone conversation or other form of contact with occasional lobbyists.

Entities and persons subject to lobbying rules: The disclosure rules, which oblige public authorities to report on lobbying activities, are applicable only to entities that carry out professional lobbying activities. Representation of third parties by legal advisers in the legislative process or their activities in the preparation of legislative proposals falls within the definition of professional lobbying activities.

Entities that do not conduct lobbying activities for third parties or do not receive remuneration for lobbying are not considered professional lobbyists. These entities are trade unions, employers’ organisations, churches and religious associations, associations and organisations of economic self-government and other non-governmental organisations. These organisations are not subject to disclosure rules in the register, however, their participation in public hearings or public consultations is disclosed.

Lobbyist details: An entity wishing to conduct professional lobbying activities should submit a notification of entry to the register with information required by the law. This information includes the name and registered address of the company or the individual lobbyist, whether they are registered as an entrepreneur or not. In the case of companies and entrepreneurs, the information must include a company registration number or a number from the register of entrepreneurs.

An entity engaged in professional lobbying is obliged to deliver to the public authority or an employee of the office serving a public authority a statement indicating the entities, for which it performs the activity.

Content of reports: Public authorities should regularly report on the activities of entities that carry out professional lobbying activities. Additionally, once a year, heads of offices servicing public authorities prepare information on actions taken against these bodies in the previous year by entities engaged in professional lobbying. This information should: identify cases in which professional lobbying was undertaken; identify entities that performed professional lobbying activities; determine the forms of professional lobbying activity undertaken, including whether it relied on supporting specific projects or opposing projects; and determine the impact of professional lobbying on the legislative process.

Financing of the registration regime: The registration system is funded by registration fees. Entry in the register is made on the basis of an application and is subject to a registration fee of 100 zlotys.

Public access to lobbying registers and reports: The register of entities engaged in professional lobbying is kept by the Minister of the Interior. The register is fully public and the information contained in it is subject to disclosure in the Public Information Bulletin, which is a system of websites created for the purpose of making information publicly available.

Code of conduct: Currently, there is no code of conduct applicable to lobbyists or their practice. The Association of Professional Lobbyists in Poland, which issued the Code of Conduct, is no longer active.

Media: Influence can be achieved through social campaigns classified as advertising (commercial communication).

Under the Press Law, a journalist must not conduct hidden advertising in order to achieve material or personal gains from a person or organisational unit interested in advertising.

With regard to television and radio, pursuant to the Broadcasting Act, the broadcaster enjoys full independence in determining the content of its programmes, and is liable for what is broadcast. Commercial communications should be easily recognisable, in particular, advertising should be readily distinguishable from editorial content. Thematic placement is prohibited.

General: Funding of political parties in Poland is subject to strict legal regulation, primarily by the Act on Political Parties. The Constitution states that political parties’ sources of financing are made public. The Act on Political Parties identifies the main sources of financing: the income earned by the political party using its own assets; income from natural persons in the form of membership fees, donations, inheritances and bequests; and financing from the state budget in the form of subsidies or subventions. The political party also has the right to take out bank loans for its statutory activity. A political party cannot conduct a business activity or raise funds from public collections.

Registration of interests: The Sejm and Senate members are required to disclose the benefits obtained by them or their spouses. To this end, the Act on the Exercise of the Mandate of Deputy and Senator created the Register of Benefits, to which the following information should be reported:

1. all positions occupied and general activities performed in both public administration and private institutions for which remuneration is collected, as well as professional work performed on a person’s own account;
2. any financial or material support for public activity carried out by the Sejm or Senate member;
3. donations received from domestic or foreign entities, whose value exceeds 50 per cent of the statutory minimum remuneration of employees for work (which is calculated monthly);
4. domestic or foreign trips not related to the performed public function, if their cost has not been covered by the Sejm or Senate member or his or her spouse, or their employing institutions or political parties, associations or foundations of which they are members; and
5. other benefits obtained, whose value is greater than that indicated in point (iii), not related to occupying positions, or carrying out general activities or professional work.

All political parties have a reporting obligation, which takes the form of an annual report on the sources of their funds, including bank loans and the terms and conditions of obtaining them, and expenses incurred from the electoral fund in the previous calendar year.

Contributions to political parties and officials: Polish law provides for the amount and limitations on transferring assets to a political party.

Membership fees may be paid to a political party only by its members, who must additionally have permanent residence in the territory of Poland. Donations may be paid to a political party by a natural person, who must also have permanent residence in the territory of Poland. Currently, donations are not accepted from legal entities. Donations may be made to the current account of the party and to the account of an electoral fund established to finance the party’s participation in elections.

The contributions paid to the parties are limited. Contributions from one person to the current account of the party may not exceed 15 times the statutory minimum remuneration for work during the year. Additionally, a party member may pay membership fees not exceeding the minimum remuneration for work (from one member) in a year. In addition, natural persons, regardless of whether they are party members, have the right to make donations to a party’s electoral fund of an amount not exceeding 15 times the minimum remuneration.

If the one-off payment is higher than the minimum wage, it must be made by cheque, bank transfer or credit card. If it does not exceed the amount of the statutory minimum remuneration for work, it may be made in cash. The above rules also apply to non-cash contributions. However, contributions to a party’s electoral fund may be paid only by cheque, bank transfer or credit card.

A political party can only accumulate funds in bank accounts, with the exception of membership fees that do not exceed the minimum wage of one member in one year, which are accumulated by organisational units of the party for the purpose of covering expenses related to day-to-day operations.

Sources of funding for political campaigns: Whether a source of political campaign funding is acceptable depends on the political party, coalition of parties or voters that create the election committee. In the case of party committees, money can only come from the electoral fund of the party. In the case of committees of organisations and voters, the funding can be sourced from contributions from Polish citizens residing permanently in Poland and from bank loans taken for electoral purposes.

Contributions to the electoral fund, which a party creates in order to finance elections, can only be made by the party itself, or by a natural person in the form of a donation, inheritance or bequest. The total amount of an individual’s contribution to the electoral fund of a given political party in one year may not exceed 15 times the statutory minimum remuneration for work. If, however, in a given calendar year more than one election takes place, the sum is increased to 25 times the minimum remuneration.

A political party has the right to receive subsidies from the state budget for its statutory activities during the term of office of the Sejm if an electoral committee of the party participated in Sejm elections and received at least 3 per cent of valid votes on its district lists of candidates for deputies, or, in elections to the Sejm, the party became part of an electoral coalition, whose district lists of candidates for deputies were awarded with at least 6 per cent of the valid votes cast.

Lobbyist participation in fundraising and electioneering: Registration as a lobbyist does not trigger any special restrictions or disclosure requirements with respect to the candidate fundraising.

Independent expenditure and coordination: Under the Election Code, an election campaign can only be conducted on the basis of permission given by the election proxy of the committee. Consequently, under the law, it cannot be claimed that the campaign is being conducted independently. However, the Election Code does not sufficiently regulate campaigns run online, which is considered to be a loophole that can be exploited contrary to the general principles of the Election Code.

Gifts, travel and hospitality: There is no catalogue of items that can be accepted. Polish law provides for the obligation to disclose the benefits received in the Register of Benefits. All gifts with a value exceeding 50 per cent of the statutory minimum remuneration for work are subject to entry into the register. The obligation to disclose received benefits applies to persons performing public functions as indicated by law.

Anti-bribery laws: The Polish Criminal Code provides for criminal liability both for the person accepting a bribe and for the person offering it in all types of corruption crimes provided for by law. In all cases of corruption, a bribe is a material or personal benefit. The minimum value of a material benefit, which is considered to be the profit gained by the person who accepts the bribe, is not defined by the law. Money and gifts of considerable material value will always be classified as material benefits. However, it is not only the giving and accepting of a material or personal benefit that is considered a crime. The mere promise of giving such a benefit or demanding it constitutes a crime. Polish law also provides for criminal liability in the case of corrupt conduct in business relations, which means corruption of a person in a managerial position in a business entity, or in an employment relationship, in return for abusing the authority granted to him or her, or for failing an obligation.

The Criminal Code also penalises influence peddling. Anyone who, claiming to have influence in any state or local government institution, international organisation or domestic or foreign organisation with public funds at its disposal, or convincing another person or confirming a conviction concerning the existence of such influence, undertakes to intercede in settling a matter in exchange for a material or personal benefit, or a promise thereof, is liable to imprisonment for between six months and eight years. If the act is of less significance, the offender is liable to a fine, the restriction of liberty or imprisonment for up to two years.

Revolving door: Polish law restricts the freedom of employment or other activities for persons who have ceased to perform public functions or have left their position. These persons may not, within one year of leaving their position or performing a function, be employed or engage in other activities with a business, if they participated in issuing a decision in individual cases concerning that business. In justified cases, consent to employment before the end of the year can be granted by a commission appointed by the President of the Council of Ministers.

Prohibitions on lobbying: It is possible to be barred from engaging in lobbying activities. Under the Criminal Code, a court may order that a person be prohibited from taking a position or pursuing a profession, including lobbying, if he or she abused that position or profession in the commission of an offence or proved that further occupation of that position or profession would endanger essential rights protected by law. In the event of a final ruling prohibiting the performance of professional lobbying activities, the registry-keeping authority deletes from the register the legal person or natural person involved in the decision.

Recent cases: A recent case of the Supreme Administrative Court (Case I OSK 1333/15) concerned a lobbyist who filed a complaint against the Prosecutor General for alleged violation of a provision of the Lobbying Act. The complainant pointed to the inaction of the Prosecutor General, which consisted in failing to provide him with access to its office in order to conduct professional lobbying activities. The Supreme Administrative Court denied the appeal against the first instance court decision and concluded that such complaints are out of the scope of administrative court control. Granting access to the Prosecutor General’s office, according to the Court, is not an act of public authority. Moreover, the Prosecutor General is not engaged in the legislative process and, therefore, is not obliged to provide access to its office (even though in Poland the office of the Prosecutor General is combined with the office of the Minister of Justice).

In Case III SW 7/16, the Supreme Court passed a judicial order in a case in which an electoral committee of one of the parties appealed against the resolution of the National Electoral Commission on the rejection of the financial statements. The Supreme Court pointed out that, according to the Electoral Code, the funds of a political party’s electoral committee can come from the electoral fund of that party. The financial statements of the political party’s electoral committee are not valid and subject to rejection if they contain false statements that the committee’s revenue came from the party’s electoral fund, although the committee received a large sum from the party’s current account. Electoral fund resources may come from the party’s own payments, but the separation of the electoral fund and the current account is important.

Remedies and sanctions: The National Electoral Commission rejected a financial report of the Democratic Left Alliance party (SLD) from supplementary elections to the Oleśnica City Council, which took place on 29 May 2016. Based on the auditor’s report, the National Electoral Commission considered that the SLD committee had accepted a donation of 120 zlotys from an individual after the election day, which was supposed to be used for election purposes. According to the provisions of the Electoral Code, such conduct is a basis for rejection of the report, since expenditure for purposes related to elections can only be made through the electoral fund. This case confirms that the rules of political finance do not recognise the de minimis rule.

Updates and trends: Currently, there is a pending legislative process on the bill for transparency of public life. The legislative process is pending, however, and there have been no new developments since January 2018. According to the statement of reasons accompanying the draft, its aim is to strengthen anti-corruption mechanisms in Poland.

The draft bill introduces an obligation to apply internal anti-corruption procedures by medium-sized and larger entrepreneurs. Additionally, the person controlling a public sector entity will be obliged to adopt internal anti-corruption procedures in subordinate units. Another novelty is the introduction of a general provision that a person performing a public function, while performing this function and in cases specified in the bill, is obliged to avoid a conflict of interest that would involve activities that could lead to suspicion of bias or acting in the interests of an entity in which it does not have a public function.

The draft provides for a new definition of lobbying activity, which is an action of entities that are not public authorities or representatives authorised by these organs, using legally permitted methods not regulated under statutory procedures before public authorities, aimed at influencing a decision taken by a public authority in a specific direction. The draft bill introduces broader disclosure provisions not limited only to professional lobbying. It is proposed to broaden disclosure obligations that will apply not only to professional lobbyists. The draft also proposes a new definition of professional lobbying, which is lobbying of a commercial nature for persons or entities to take into account the interests of these persons or entities. Another proposed change is increasing the maximum fee for registering a professional lobbyist from 100 zlotys to 1,000 zlotys.

Recent legislative changes in the judiciary were considered by the international community as contrary to the rule of law. In particular, shortening the term of office of the judges of Supreme Court, as well as changes in rules for appointment of member of the of the National Council of the Judiciary were criticised. In reaction to those developments, on 20 December 2017, the European Commission initiated the procedure under article 7 of the Treaty on European Union and issued a proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law.

The Commission brought an action against Poland for failure to fulfil obligations under EU Treaties before the Court of Justice (Case C-619/18) on 2 October 2018. The Vice President of the Court of Justice provisionally granted all the Commission’s requests on 19 October 2018 and ordered Poland to adopt, inter alia, the following interim measures: (i) suspension of the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges; and (ii) to take all necessary measures to ensure that the Supreme Court judges concerned by the provisions at issue may continue to perform their duties in the same post, while continuing to enjoy the same status and the same rights and working conditions as they did before the Law on the Supreme Court entered into force.