Anti-Corruption in Poland

Radoslaw Nozykowski* and Wiktor Krzymowski* (Baker McKenzie Poland)

1. Domestic bribery (private to public)

1.1       Legal framework

Bribery of public officials is regulated under the Polish Penal Code (PC), Articles 228-230a.

1.2       Definition of bribery

The PC distinguishes offering a bribe from accepting it in relation to public officials.

Bribery (Article 229 of the PC) consists of giving or promising to give financial or personal benefits to a person holding a public post (public post holder) in connection with this post.

Venality (Article 228 of the PC) refers to accepting or promising to accept financial or personal benefits by a person holding a public post in connection with holding this post.

Financial benefit is understood as the receipt of assets or the avoidance of losses or encumbrances on assets, and therefore, refers both to an increase in assets and a reduction in liabilities. Financial benefits are money, securities, items of value, performances and property rights (e.g., a donation, an entry in a will, the forgiveness of a debt and the waiver of enforcement of tax due).

Personal benefit should be understood as satisfying needs of a nature other than financial or those in which the intangible benefit is of a dominant nature (e.g., recommending someone for a position, promotion, the award of a distinction, or the withdrawal of a negative appraisal contained in the personal files).

1.3       Definition of public official

Article 115 Section 19 of the PC defines “public official” as any public post holder, like a member of a body of a local government; a person employed in an organizational unit holding public funds, unless it only performs activities on contract; as well as any other person whose rights and duties in public activities are specified or recognized by the PC or an international agreement that is binding on the Republic of Poland, or is a listed public official.

The following are public officials under the PC (see Article 115 Section 13 of the PC):

  • The president of the Republic of Poland
  • A deputy, senator or counsellor
  • A member of the European Parliament
  • A judge, juror, prosecutor, official of a financial investigative authority or authority supervising the financial investigative authority, a notary, a bailiff, a court curator, a receiver, a court supervisor and administrator, a person adjudicating in disciplinary bodies operating in accordance with the PC

1.4       Consequences of bribery

(a)        For the individuals involved

The PC establishes the same penalties for public officials as for individuals that corrupt public officials.

  • Typical imprisonment from six months to eight years (In gross cases that are higher – e.g., a bigger bribe may result in up to 12 years of imprisonment; smaller bribe cases will net a fine of up to PLN 1.08 million, up to one year of restricted liberty, or imprisonment of up to two years)

(b)        For the company / legal entity (a specific procedure may be initiated following the prosecution of the original perpetrator)

  • A fine of between PLN 1,000 and PLN 5 million; however, not more than 3% of revenues for the financial year in which the offense was committed
  • Forfeiture of the financial benefits or duty to return obtained benefits
  • Prohibition for up to five years from the following activities:
    • Advertising the company, company’s services and manufactured or sold goods
    • Using grants, subventions or any other form of state aid
    • Using aid of international organizations that the Republic of Poland is part of
    • Entering into contracts with the public sector
  • Publication of the court judgment in media

1.5       Political contributions

  • Contributions to political parties are regulated under the Act on Political Parties of 27 June 1997.
  • Political parties may receive financial contributions only from Polish citizens with a permanent place of residence in Poland. The limit of a contribution received from one person cannot exceed annually the ratio of the minimum monthly salary (for 2017, it is estimated to be PLN 2,00092) multiplied by 15.
  • Political parties may not receive financial contributions from legal entities.
  • Politicians may not receive financial contributions at all.

1.6       Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others

Polish law does not establish quantitative or qualitative limitations on hospitality expenses. The line between a permissible gift and an impermissible bribe is neither precise nor easy to determine, and it should be assessed on a case-by-case basis.

However, to some extent, case law has established some guidance. A judgment of the Polish Supreme Court states that, “[o]ffering items that only symbolically express gratefulness of the benefactor and have money value not exceeding such symbolic level is not a financial benefit.”

Furthermore, the Act on the Restrictions on Public Officials Conducting Business Activities provides additional guidance on that matter. According to that act, high-ranking government officials must disclose information on all gifts, the value of which exceeds 50% of the minimum monthly salary (for 2017, it is estimated to be PLN 2,000) and hospitality received in the Register of Benefits.

To some extent, in order to determine the scope of admissible hospitality, the Code of Ethics of Civil Servants may be used as a guide. The said act defines civil servants as a special class of lower ranking Polish public officials with administrative, non-political functions, and establishes the following principles for the provision of hospitality: (i) civil servants are prohibited from accepting any financial or personal benefit from a person or entity engaged in official proceedings before the civil servant; and (ii) civil servants are prohibited from acting in a manner that may raise doubts as to whether they are acting in their own interests or those of the government of Poland.

2. Domestic bribery (private to private)

2.1        Legal framework

Private bribery (managerial bribery) is regulated under the PC, Article 296a.

2.2        Definition of private bribery

“Bribery” is defined as demanding, accepting or offering financial or personal benefits or a promise thereof, in exchange for abusing the rights granted to a manager or a person employed in any form by a company/entity, or for failing to fulfill an obligation for which he or she is responsible, and which leads to possible damage to this entity, an act of unfair competition, or inadmissible preferential act for a purchaser or customer of goods or services.

2.3        Consequences of private bribery

(a)         For the individuals involved

Typically, imprisonment from three months to five years (in smaller cases, a fine up to PLN 1.08 million or restriction of liberty up to one year or imprisonment up to two years; if high damages are incurred, imprisonment from six months to eight years)

(b)       For the company/legal entity

  • A fine of between PLN 1,000 and PLN 5 million; however, not more than 3% of revenues for the financial year in which the offense was committed
  • Forfeiture of the financial benefits or duty to return obtained benefit/li>
  • Prohibition for up to five years from engaging in the following activities:
    • Advertising the company, company’s services and manufactured or sold goods
    • Using grants, subventions or any other form of state aid
    • Using aid of international organizations that the Republic of Poland is part of
    • Entering into contracts with the public sector
  • Publication of the court judgment in media.

2.4       Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)

Similar rules apply to hospitality acts of private persons and public officials. Any gifts should be reasonably proportionate to the occasion; otherwise, it may be deemed as corruption.

3. Corruption of foreign public officials

3.1       Legal framework

Polish law does not specifically regulate the corruption of foreign officials. Articles regarding the corruption of public post holders in general will apply.

3.2       Definition of corruption of public post holder

Polish law does not provide a definition of corruption of foreign public officials. The same rules apply as to bribery of public officials under the PC.

3.3         Definition of foreign public official

Polish law does not, expressis verbis, define “foreign public post holder.” However, the definition of “public post holder” may give some guidance in this regard.

3.4       Consequences of corruption of foreign public officials

(a)        For the individuals involved

  • Bribery: The same rules as to domestic bribery apply.
  • Venality: Considering the fact that some of the foreign public officials may have immunity while representing their states in the Republic of Poland (e.g., diplomatic immunity), the PC does not apply to illegal actions performed by them, unless their country of origin waives immunity in particular situations.

(b)        For the legal entity

  • The same rules as to domestic bribery apply.

3.5       Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)

The same rules apply to foreign public officials as to domestic regulations.

4. Facilitation payments

Polish law does not recognize any facilitation payments.

5. Compliance programs

5.1       Value of a compliance program in mitigating/eliminating the criminal liability of legal entities

The PC does not recognize a compliance program as an instrument to mitigate or eliminate the liability of legal entities before the crime of corruption has been committed. However, based on Article 5

Paragraph 2 of the Act on the Liability of Collective Entities for Acts Prohibited under the Fine (LCE), it may be a defence in case of the entities’ liability – the liability of the particular company may be established if the illegal act has been committed following the lack of due diligence in the internal organization of the company, which if done could have prevented the occurrence of the illegal act. The existence of a compliance program in the company does not automatically waive the liability of the collective entity, but under the provisions of LCE, this may be a factor that a court will take into consideration in deciding on the company’s liability (i.e., a properly planned and executed compliance program may reduce the risk of liability).

5.2       Absence of a compliance program as a crime

The PC does not view the absence of a compliance program as a crime.

5.3       Elements of a compliance program

(a)           Legal framework

The PC does not recognize nor regulate the elements of a compliance program. However, Article 5, Paragraph 2 of the LCE may be of some guidance (proper internal organization of the company).

(b)           Recommended practice

In the absence of PC regulations, non-governmental organizations, as well as market practice, recommend that legal entities adopt internal compliance programs (or structure an internal organization of the company in a similar way) as a strategy to mitigate and eliminate corruption, and to establish a line of defence in the case of court proceedings regarding the corruption made on behalf of the collective entity.

6. Regulator with jurisdiction to prosecute corruption

In addition to the police and the Public Prosecutor’s Office or other law enforcement agencies dealing with specific areas (e.g., secret services), the Polish legal system has a specific regulator responsible for investigating corruption – The Central Anti-corruption Bureau (Centralne Biuro Antykorupcyjne or CBA). The CBA is equipped with tools to detect corruption among public officials and legal entities and to gather evidence for criminal cases. It does not, however, possess the power to prosecute defendants accused of corruption before courts, which is a role that is reserved for public prosecutors.
 


92 – However, this provision has very unclear wording. Due to the State Election Commission, which controls the finance of political parties, this provision relates to the allowance of members of district election commissions (PLN 380). – Back

 


Baker McKenzie Krzyzowski i Wspólnicy Spólka Komandytowa
Rondo ONZ 1
00-124 Warsaw Poland

Radoslaw Nozykowski

Radoslaw Nozykowski assists in compliance matters, mostly for technological and pharmaceutical companies. He also handles various IP issues, including copyright law and IT law, unfair competition and privacy-related concerns.

radoslaw.nozykowski@bakermckenzie.com

Tel: +48 22 445 32 10

Baker McKenzie Krzyzowski i Wspólnicy Spólka Komandytowa
Rondo ONZ 1
00-124 Warsaw Poland

Wiktor Krzymowski

Wiktor Krzymowski is a member of Pharmaceuticals & Healthcare practice. He assists in compliance matters for pharmaceutical and medical companies, including the preparation of compliance procedures.

wiktor.krzymowski@bakermckenzie.com/a>

Tel: +48 22 445 32 03