Chapter 1. General Provisions

ACT

Of 2 July 2004

ON FREEDOM OF ECONOMIC ACTIVITY

(consolidated text)

(Excerpts)

Chapter 1. General Provisions

Article 1.This Act governs the undertaking, pursuit and termination of economic activity on the territory of the Republic of Poland and the tasks of authorities in this respect.

Article 2. Economic activity shall mean profit-gaining activity in the fields of production, construction, commerce, services and in the prospecting, exploration and extraction of minerals from deposits, as well as a professional activity carried on in an organized and uninterrupted manner.

Article 2a. In respect of the following types of economic activity: construction activity, commercial activity and activity in the field of services, as well as professional activity consisting in rendering services, the provisions of Article 5, provisions of Chapters 2 and 3 of the Act of 4 March 2010 on the Provision of services in the territory of the Republic of Poland (Dziennik Ustaw 2010, No. 47, item 278) shall apply accordingly.

Article 3.The provisions of this Act shall not apply to manufacturing activity in agriculture in the realm of crop farming and animal husbandry, horticulture, market gardening, forestry and inland-water fisheries, or to the renting by farmers of rooms, the sale of home meals and the provision in agricultural farms of other services in connection with the stay of tourists and the manufacture of wine by producers being farmers making less than 100 hectolitres of wine per farming year, as referred to in Article 17, paragraph 3, of the Act of 12 May 2011 on the Manufacture and Bottling of Wine Products, Trading in these Products, and Wine Market Organization (Dziennik Ustaw 2011, No. 120, item 690).

Article 4. 1. Within the meaning of this Act the entrepreneur shall be a natural person, legal person, and an organisational unit which is not a legal person and is endowed with legal capacity by force of a separate Act – carrying on economic activity in their own name.

2. Partners in a civil partnership shall also be entrepreneurs to the extent of an economic activity conducted by them.

Article 5.The terms used in this Act shall mean:

1) a concession-granting authority – a public administration authority empowered under this Act to grant, refuse to grant, modify or withdraw concessions;

2) a foreign person:

a) a natural person having no Polish citizenship;

b) a legal person having its seat abroad;

c) an organisational entity which is not a legal person and is endowed with legal capacity, having its seat abroad;

3) foreign entrepreneur – a foreign person pursuing economic activity abroad and a Polish citizen pursuing economic activity abroad;

4) branch – an isolated and organisationally independent part of economic activity carried on by an entrepreneur outside his seat or principal place of pursuit of the activity;

5) regulated activity – an economic activity the pursuit of which requires the satisfaction of special conditions laid down in provisions of law;

6) competent authority – a public administration authority, professional self-government authority or other public authority competent in matters concerning the undertaking, pursuit or termination of economic activity;

7) overriding reasons relating to the public interest – overriding reasons relating to the public interest within the meaning of Article 2, paragraph 1, subparagraph 7 of the Act of 4 March 2010 on the provision of services in the territory of the Republic of Poland.

Article 6.1. The undertaking, pursuit and termination of economic activity shall be free to all on an equal-rights basis, subject to conditions determined in the provisions of law.

2. The competent authority shall neither demand nor make its decision in the matter of the undertaking, pursuit, or termination of economic activity by an interested party conditional upon satisfaction by this party of additional conditions, including without limitation on the submission of documents or disclosure of information other than that set out in provisions of law.

3. The competent authority, excluding a common court, shall neither demand nor make its settlements in the matter of the undertaking, pursuit or termination of economic activity conditional upon presentation of original documents, certified copies or a certified translation, except where such a requirement is set forth in special Acts due to overriding reasons relating to the public interest or results from directly applicable provisions of commonly binding Community law or ratified international agreements.

Article 7. The State shall provide entrepreneurs with public aid on terms and in forms determined in separate provisions, subject to principles of equality and competition.

Article 8.1. Public administration authorities shall encourage the development of entrepreneurship by creating advantageous conditions for the assumption and conduct of economic activity and they shall support in particular micro-entrepreneurs and small and medium-sized entrepreneurs.

2. The public administration authorities implementing aid programmes within the meaning of the provisions on proceedings in matters concerning public aid shall, by electronic means, submit the information on the terms and forms of the aid provided to entrepreneurs to the Polish Agency for Enterprise Development, which shall collect this information and make the same available on its website.

3. The information referred to in paragraph 2 above shall be submitted within 30 days from the date on which an aid programme was established, no later than 14 days before the elapse of a time limit set for the filing of applications for aid.

Article 9.While discharging its tasks, in particular in the field of supervision and inspection, the competent authority shall act exclusively pursuant to and within the limits of the law, with respect for reasonable interests of the entrepreneur.

Article 9a.When assessing the fulfillment of the requirements necessary to undertake and pursue economic activity on the territory of the Republic of Poland, the competent authority shall recognize the requirements that the entrepreneur having its seat on the territory of one of the countries referred to in Article 13, paragraph 1, has met to undertake or pursue its economic activity on the territory of that country, and in particular it shall recognize certificates, attestations or other documents issued by the competent authority of the country referred to in Article 13, paragraph 1, which confirm the fulfillment of the requirements for undertaking and pursuit of economic activity.

Article 9b.The competent authority shall recognize professional liability insurance and guarantees issued in the countries referred to in Article 13, paragraph 1, to the extent they meet the requirements laid down in the provisions of separate Acts.

Article 10.1. The entrepreneur may file an application with a competent authority of public administration or a state organizational unit demanding that a written interpretation be issued as to the extent and manner of administration, in his particular case, of provisions which give rise to the entrepreneur’s duty to provide a public tribute and social or health insurance premiums.

2. An application for issuing the interpretation may concern the factual state of affairs or future events.

3. In the application for issuing the interpretation, the entrepreneur shall be obliged to present the factual state of affairs or future events and his/her own standpoint in the matter.

4. An application for issuing the interpretation shall also contain:

1) the business name of the entrepreneur;

2) the designation of the seat and address or place of residence and address of the entrepreneur;

3) the tax identification number (NIP);

4) the number in the register of entrepreneurs in Krajowy Rejestr Sądowy (the National Court Register) or the number in the Economic Activity Records;

5) the address for correspondence if different from the address of the seat or residence address of the entrepreneur.

5. The interpretation shall be issued by a decision that may be appealed against. An interpretation shall include an indication of the correct standpoint in the matter accompanied by providing legal grounds therefor and an instruction of the right to employ means of appeal.

6. An application for issuing the interpretation shall be subject to a fee of 40 zloties, which shall be paid within 7 days of the day when the application was filed. If the fee is not paid in time, the application shall be left unexamined.

7. If a single application for issuing the interpretation contains separate factual states of affairs or future events, a fee shall be collected on each factual state of affairs or future event presented in the application.

8. The fee referred to in paragraphs 6 and 7 shall be the income of, respectively, the state budget, the National Health Fund or a territorial self-government unit.

9. The fee on the application referred to in paragraph 1 shall be paid to the account of the public administration authority or state organizational unit competent for issuing interpretations or, if possible, in cash to the cash department of this authority or unit.

Article 10a. 1. An interpretation shall be issued without undue delay, but no later than within 30 days of the day when the public administration authority or state organizational unit receives a complete and paid-up application. If no interpretation is issued within that time limit, it shall be considered that on the day following the day when the time limit for issuing interpretation elapsed, an interpretation confirming the correctness of the entrepreneur’s standpoint presented in the application for issuing the interpretation was issued.

2. The interpretation shall not be binding on the entrepreneur, however, the entrepreneur shall not be liable for any public tribute, administrative sanctions or penalties insofar as he has complied with the interpretation received.

3. The interpretation shall be binding on the public administration authorities or state organizational units competent for the entrepreneur and may be modified only by means of resumption of the proceedings. No interpretation shall be modified if irrevocable legal effects have occurred as its consequence.

4. The principles of and procedure for issuing interpretations of tax law provisions shall be regulated by the Act of 29 August 1997 – Tax Ordinance (Dziennik Ustaw 2005, No. 8, item 60, as amended).

Article 11.1. The competent authority shall handle entrepreneurs’ matters without undue delay.

2. The competent authority may not refuse to receive incomplete letters and applications or demand any documents whose submission or filing is not required under a provision of law.

3. While receiving the application, the competent authority shall immediately confirm its receipt.

4. The confirmation shall state:

1) the receipt date and the time limit for considering the application;

2) the instruction on the means of appeal available for an entrepreneur;

3) the information on the rights resulting from paragraph 9.

5. Where it is ascertained that the application needs to be supplemented, the time limit for considering the application shall run from the date of receipt of a completed application.

6. The time limits and procedure for supplementing letters and applications referred to in paragraph 2 and the time limits for handling matters resulting from such letters and applications shall be determined by separate provisions.

7. The time limit for considering the application may be additionally extended only once. The extension of the time limit for considering the application may not exceed two months.

8. The competent authority shall inform of the extension before the expiry of the time limit for considering the application fixed in the confirmation of the receipt of the application.

9. If the authority fails to consider the application within the set time limit, it shall be deemed that it issued a decision in line with the entrepreneur’s application, unless separate provisions provide otherwise due to overriding reasons relating to the public interest.

Article 12. While discharging their tasks public administration authorities shall co-operate with organisations of employers, organisations of employees, organisations of entrepreneurs, as well as professional and economic self-governments.

Article 13. 1. Foreign persons from the European Union Member States, Member States of the European Free Trade Association (EFTA) – parties to the Agreement on the European Economic Area, and foreign persons from the States not being parties to the Agreement on the European Economic Area who may enjoy freedom of establishment under agreements concluded by those States with the European Union and its Member States, may undertake and carry on economic activity on the same terms as Polish citizens.

1a. Repealed.

2. Citizens of states other than those referred to in paragraph 1 and who:

1) [the provisions of this subparagraph are valid until 30 April 2014] in the Republic of Poland:

a) hold a permit to settle;

b) hold a long-term resident of the European Communities’ stay permit;

c) hold a permit to reside for a specified period of time granted in connection with the circumstance referred to in Article 53, paragraph 1, subparagraphs 7, 13, 14 or 16 of the Act of 13 June 2003 on Foreigners (Dziennik Ustaw 2006, No. 234, item 1694, as amended);

d) hold a permit to reside for a specified period of time granted to a family member of the persons referred to in letters a, b, e and f, said family member arriving in the territory of the Republic of Poland or staying in the said territory in order to reunite with the family, within the meaning of Article 53, paragraphs 2 and 3 of the Act of 13 June 2003 on Foreigners;

e) hold a refugee status;

f) enjoy supplementary protection;

g) hold consent for stay on humanitarian grounds or consent for tolerated stay;

h) hold a permit to reside for a specified period and have been married to a Polish citizen residing in the territory of the Republic of Poland;

i) repealed;

1) in the Republic of Poland:

a) hold a permanent stay permit;

b) hold a long-term resident of the European Union’s stay permit;

c) hold a temporary stay permit granted on account of the circumstance referred to in Article 144 or Article 159, paragraph 1, to the exclusions of the circumstances referred to in paragraph 1, subparagraph 1, letters a to d and Article 186, paragraph 1, subparagraphs 3 and 4 of the Act of 12 December 2013 on Foreigners (Dziennik Ustaw 2013, item 1650);

d) hold a temporary stay permit granted to a family member of the persons referred to in letters a, b, e and f, said family member arriving in the territory of the Republic of Poland or staying in the said territory in order to reunite with the family, within the meaning of Article 159, paragraphs 3 and 4 of the Act of 12 December 2013 on Foreigners;

e) hold a refugee status;

f) enjoy supplementary protection;

g) hold consent for stay due to humanitarian grounds or consent for tolerated stay;

h) hold a temporary stay permit and have been married to a Polish citizen residing in the territory of the Republic of Poland;

i) hold a temporary stay permit in order to carry on economic activity, said permit having been granted due to continuation of economic activity already being pursued on the basis of an entry into CEiDG;

2) enjoy temporary protection on the territory of the Republic of Poland;

3) hold a valid Pole’s Card;

4) are family members within the meaning of Article 2, subparagraph 4 of the Act of 14 July 2006 on entry into, stay in, and exit from the territory of the Republic of Poland of citizens of the European Union Member States and their family members (Dziennik Ustaw 2006, No. 144, item 1043; 2007, No. 120, item 818), joining the citizens of the states referred to in paragraph 1 or staying with them

– may undertake and pursue economic activity on the territory of the Republic of Poland on the same terms as Polish citizens.

2a. Citizens of states other than those listed in paragraph 1 who stay in the territory of the Republic of Poland under Article 108, paragraph 1, subparagraph 2 or Article 206, paragraph 1, subparagraph 2 of the Act of 12 December 2013 on Foreigners, or on the basis of a stamp imprinted in a travel document, said stamp confirming the filing of an application for being granted a long-term resident of the European Union's stay permit if they were authorized to undertake and carry on economic activity under paragraph 2, subparagraph 1, letters c, d, and h immediately before filing an application for being granted a temporary stay permit or a permanent stay permit or a long-term resident of the European Union's stay permit, may undertake and carry on economic activity in the territory of the Republic of Poland on the same rules as Polish citizens.

3. Foreign persons other than those referred to in paragraphs 1 to 2a may undertake and carry on economic activity in no other form than that of a limited partnership, limited joint-stock partnership, limited liability company, and joint-stock company and they may join said partnerships or companies and take up or acquire shares in them, unless otherwise provided in international agreements.

4. A family member, within the meaning of Article 159, paragraph 3 of the Act of 12 December 2013 on Foreigners, of foreign persons to whom the international agreements referred to in paragraph 3 refer, holding a temporary stay permit, may undertake and carry on economic activity on the same rules as these foreign persons.

5. A family member, within the meaning of Article 159, paragraph 3 of the Act of 12 December 2013 on Foreigners, holding a temporary stay permit granted in connection with arrival into the territory of the Republic of Poland or staying in the said territory in order to reunite with the family, may undertake and carry on economic activity within the same scope as foreigners holding temporary stay permits and carrying on economic activity on the basis of an entry in the records of economic activity made on the basis of reciprocity.

Article 13a. An entrepreneur who is a natural person carrying on economic activity in his or her own name may be transformed into a company on the terms specified in the provisions of the Act of 15 September 2000 – Commercial Partnerships and Companies Code (Dziennik ustaw 2000, No. 94, item 1037, as amended).

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Chapter 6. Branches and Agencies of Foreign Entrepreneurs

Article 85.1. Foreign entrepreneurs may, for purposes of pursuing economic activity on the territory of the Republic of Poland, create branches with the seat on the territory of the Republic of Poland, hereinafter called “branches”, subject to reciprocity, unless international agreements ratified by Poland otherwise provide.

2. The provision of Article 13, paragraph 1 shall apply accordingly to the establishment of branches by foreign entrepreneurs from the European Union Member States, the European Economic Area States not belonging to the European Union, and the States not being parties to the Agreement on the European Economic Area that may enjoy freedom of establishment under agreements concluded by those States with the European Community and its Member States.

Article 86.The foreign entrepreneur who creates a branch may carry on economic activity solely to the extent of the object of the foreign entrepreneur’s activity.

Article 87.The foreign entrepreneur who creates a branch shall appoint a person authorised, in the branch, to represent the foreign entrepreneur.

Article 88.The foreign entrepreneur may assume economic activity within the framework of a branch, upon having the branch entered in the register of entrepreneurs. The terms of entry in the register of entrepreneurs are laid down in the provisions of a separate Act.

Article 89.Notwithstanding the duties set forth in the provisions on the National Court Register, the foreign entrepreneur shall:

1) state the forename and surname and an address in the Republic of Poland of the person authorised in the branch to represent the foreign entrepreneur;

2) append a notarially certified specimen signature of the person referred to in subparagraph 1;

3) if it carries on activity on the basis of a founding act, partnership or company deed, or company articles – deposit the copies thereof in the branch registration files together with a certified translation into Polish; where the foreign entrepreneur has established more than one branch on the territory of the Republic of Poland, these documents may be deposited in the files of one branch provided that the branch in which the said documents have been deposited shall be indicated in the registration files of the other branches together with the designation of the court with which the files are kept and the number assigned to the branch in the register;

4) if it exists or carries on activity on the basis of a register entry – deposit a copy of the relevant excerpt from the register in the branch registration files together with a certified translation into Polish; where the foreign entrepreneur has established more than one branch on the territory of the Republic of Poland, these documents may be deposited in the files of one of the branches provided that the branch in which the said documents have been deposited shall be indicated in the registration files of the other branches together with the designation of the court with which the files are kept and the number assigned to the branch in the register.

Article 90.The foreign entrepreneur who established a branch shall:

1) use, for purposes of designating the branch, the original name of the foreign entrepreneur together with the name of its legal form translated into Polish, with words oddział w Polsce (“branch in Poland”) added;

2) manage for the branch separate accounting in the Polish language, in accordance with the accounting provisions;

3) notify the minister competent for the economy of any and all changes in the state of fact and state of law, to the extent of changes in the circumstances referred to Article 91, paragraph 1, subparagraph 2, within 14 days of their occurrence.

Article 91. 1. The minister competent for the economy shall issue a decision on prohibiting the foreign entrepreneur from conducting economic activity within the framework of the branch in the event that:

1) the branch should flagrantly violate the Polish law or fail to discharge the duty referred to in Article 90, subparagraph 3;

2) liquidation should be opened in respect of the foreign entrepreneur which created the branch, or the said entrepreneur should forfeit the right to carry on economic activity;

3) activity of the foreign entrepreneur poses a threat to the defence or security of the State, security of non-public information marked with the phrase “secret” or of a higher degree of secrecy, or another important public interest.

2. Where the decision referred to in paragraph 1 has been issued, the minister competent for the economy shall notify the person referred to in Article 89, subparagraph 1 of the duty to institute liquidation proceedings in respect of the branch within a designated time limit which shall be no shorter than 30 days. The minister shall send a copy of the decision referred to in paragraph 1 to the competent registration court.

Article 92. In respect of the branch liquidation as a result of:

1) a decision on the prohibition to pursue economic activity by a foreign entrepreneur through a branch, said decision being issued by the minister competent for the economy;

2) a decision of a foreign entrepreneur on the liquidation of a branch

– the provisions of the Code of Commercial Partnerships and Companies relating to the liquidation of a limited liability company shall apply accordingly.

Article 93. Foreign entrepreneurs may create agencies with the seat on the territory of the Republic of Poland, hereinafter called “agencies”.

Article 94.The scope of activity of the agency shall cover no other pursuits than promoting and advertising the foreign entrepreneur.

Article 95. 1. Agencies may also be created by foreign persons established by a deed of a competent authority in the country in which they have their seat for the purposes of promoting the economy of that country, provided that the scope of activity of such agency shall cover no other pursuits than promoting and advertising the economy of its country.

2. Provisions of this Chapter shall apply respectively to the agency referred to in paragraph 1.

Article 96.1. The establishment of an agency shall require having it entered in the register of agencies of foreign entrepreneurs, hereinafter called “register of agencies”, maintained by the minister competent for the economy.

1a. The establishment of an agency by a foreign bank or a credit institution within the meaning of the Act of 29 August 1997 – Banking Law (Dziennik Ustaw 2002, No. 72, item 665, as amended) shall not require having it entered in the register of agencies.

2. The entry in the register of agencies shall be made on the basis of a filed application and in accordance with its contents.

Article 97. 1. The application referred to in Article 96, paragraph 2, executed in Polish, shall state:

1) the name, seat and legal form of the foreign entrepreneur;

2) the object of the foreign entrepreneur’s activity;

3) the forename and surname as well as the address of stay in the Republic of Poland of the person authorised in the agency to represent the foreign entrepreneur;

4) the address of the main seat of the agency on the territory of the Republic of Poland where the original documents related to the agency’s activity are strored.

2. The application shall be appended with:

1) an official copy of a document confirming the registration of a foreign entrepreneur, on the basis of which the entrepreneur pursues its economic activity;

2) officially authenticated copy of a document specifying the address of the seat of a foreign entrepreneur, the principles of representation of a foreign entrepreneur and details of persons authorised to represent the entrepreneur if the document referred to in subparagraph 1 does not contain the necessary information in this regard;

3) authenticated copy of a document authorizing a foreign entrepreneur to use the premises or immovable property for the purposes of the main seat of the agency.

2a. If the application has formal defects, the minister competent for the economy shall demand that the application be supplemented by the applicant within the time limit not exceeding 7 days. The deadline for supplementing the application may be extended upon a substantiated application of the applicant filed before the expiry of that time limit. Failure to remedy formal defects within the prescribed time limit shall result in the application not being examined.

3. The documents referred to in paragraph 2, if drawn up in a foreign language, shall be submitted together with a translation into the Polish language, prepared and certified by a sworn translator or verified and certified by a sworn translator practising a profession of a sworn translator on the terms specified in the Act of 25 November 2004 on the Profession of a Sworn Translator (Dziennik Ustaw 2004, No. 273, item 2702; 2006, No. 107, item 722; 2010, No. 182, item 1228; 2011, No. 106, item 622), or by a sworn translator having its seat on the territory of one of the countries referred to in Article 13, paragraph 1.

4. The document referred to in paragraph 2, subparagraph 1 which is attached to the application for entry into the register of agencies shall be certified by apostille if a foreign entrepreneur operates on the territory of the country which is a party to the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, done at the Hague on 5 October 1961 (Dziennik Ustaw 2005, No. 112, item 938), or by legalisation if a foreign entrepreneur operates on the territory of the country which is not a party to the Convention.

5. Certification by apostille or by legalization shall not be required if an international agreement which is binding on the Republic of Poland has abolished or simplified the legalisation or has exempted from legalisation documents on matters that fall within the scope of these agreements.

Article 98.1. A certificate shall be issued ex officio to attest to the agency having been entered in the register of agencies. The certificate shall contain the data referred to in Article 97, paragraph 1, and the number and date of entry in the register of agencies.

2. The register shall be public.

Article 99. 1. The minister competent for the economy shall by decision refuse the entry in the register of agencies if:

1) establishment of an agency would pose a threat to the defence or security of the State or security of non-public information marked with the phrase “secret” or of a higher degree of secrecy, or another important public interest;

2) the application referred to in Article 96, paragraph 2 concerns an activity which extends beyond the scope determined in Article 94 and Article 95, paragraph 1.

2. The refusal of entry for the reasons referred to in paragraph 1, subparagraph 1 shall not require substantiation by facts.

Article 100. The foreign entrepreneur who established an agency shall:

1) use, for purposes of designating the agency, the original name of the foreign entrepreneur together with the name of its legal form translated into Polish, with words przedstawicielstwo w Polsce (“agency in Poland”) added;

2) manage for the agency separate accounting in the Polish language, in accordance with the accounting provisions;

3) notify the minister competent for the economy of any and all changes in the state of fact and state of law to the extent of data referred to Article 97, of the commencement and completion of liquidation of the foreign entrepreneur, and of forfeiture by the foreign entrepreneur of the right to carry on economic activity or to have his property at disposal, within 14 days of the occurrence of such events; the provisions of Article 97 shall apply respectively to the notification of changes.

Article 101.1. The minister competent for the economy shall issue a decision on prohibiting the entrepreneur from conducting economic activity within the framework of the agency in the event that:

1) the agency flagrantly violates the Polish law or fails to discharge the duty referred to in Article 100, subparagraph 3;

2) liquidation has been opened in respect of the foreign entrepreneur which created the agency, or the said entrepreneur has forfeited the right to carry on economic activity;

3) activity of the foreign entrepreneur poses a threat to the defence or security of the State, security of non-public information marked with the phrase “secret” or of a higher degree of secrecy, or another important public interest.

2. The provision of Article 91, paragraph 2 and provisions of the Code of Commercial Partnerships and Companies on the liquidation of a limited liability company shall apply respectively to the liquidation of agency.

Article 102.1. The foreign entrepreneur shall notify the minister competent for the economy of the completion of liquidation of the agency within 14 days from the completion of the liquidation of agency.

2. On the completion of liquidation of the agency the minister competent for the economy shall by decision have the agency removed from the register of agencies.

Article 102a. In respect of agencies established by a foreign bank or a credit institution within the meaning of the Act of 29 August 1997 – Banking Law, the provisions of Article 100, subparagraph 3, Article 101, paragraph 1 and Article 102 shall not apply.

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Date: 2016-03-03; view: 832