Work is underway on the Law on Openness of Public Life (draft dated 8.01.2018 was referred to the Permanent Committee of the Council of Ministers). According to the current version of the draft, at least medium-sized entrepreneurs within the meaning of the Law on Freedom of Economic Activity will be required to develop and implement appropriate anti-corruption procedures, whichólack or appearance of which may result in the imposition of a financial penalty in the amount of PLN 10,000 to as much as PLN 10,000,000. What's more, and what might be specialólnie severe, if a penalty is imposed, the entrepreneur is to be bound by the A five-year ban on applying to obtain a contractópublic knowledge.
A medium-sized entrepreneur, according to the SDG Law, is an entrepreneur who in at least one of the last two fiscal years:
- employed an average of 50 to 249 employees per year, and
- achieved an annual net turnover from sales of goods, products and services and financial operations not exceeding the PLN equivalent of EUR 50 million (at least EUR 10 million) or the total assets of its balance sheet drawn up at the end of one of these 2 years not exceeding the PLN equivalent of EUR 43 million (at least EUR 10 million).
The provisions of the proposed law impose on entrepreneursóin the obligation to adopt and apply internal anti-corruption procedures. The application of internal anti-corruption procedures is understood to mean the taking of organizational, personnel and technical measures aimed at preventing the creation of an environment conducive to the commission of crimes referred to in Article 67 (1) of the proposed law by persons who act for and on behalf of the entrepreneur.
In a situation where the prosecutor makes a corruption charge against a person acting for or on behalf of an entrepreneur, the CBA will have the right to inspect the implemented anti-corruption procedures at that entrepreneur. If it is determined that the anti-corruption procedures are sham or ineffective, or that the entrepreneur has not implemented them at all, the Head of the CBA will be able to send a request to the President of the OCCP to impose a fine on the entrepreneur in question. Thus, it is possible to punish a company for failing to apply anti-corruption procedures, even when an employee has been acquitted of the charges.
The implementation of internal anti-corruption procedures should be considered most appropriate, regardless of whether the law in question is passed or not, and not only for medium-sized and larger businesses. It is worth considering the introduction of the above procedures now, for the following reasons:
- The use of such regulations is often a requirement for cooperation with the largest players in the market, who use such practices on a global scale (especially multinationals);
- The adoption of the anti-corruption code even before the law comes into force gives an obvious signal that such regulations will not be a sham - as they were adopted regardless of legal obligation;
- Implementation of these standards can raise employee awareness in the area of anti-corruption;
- Earlier introduction of internal anti-corruption procedures will allow them to be adapted to the requirements of the proposed law and protect the entrepreneur from having these procedures deemed bogus or ineffective in the course of a possible inspection.
The procedure for bringing an entrepreneur into compliance with the proposed regulation will consist, in particular, of:
- Changing the content of the model of employment contracts to be concluded and making changes to the current contracts;
- Amending the Labor Regulations;
- Amending the template of concluded commercial contracts by introducing anti-corruption clauses and including in contracts as an appendix an extract from the Anti-Corruption Code;
- Training of employees against corrupt practices;
- Develop and adopt an Anti-Corruption Code containing:
(i) anti-corruption procedures; (ii) procedures and guidelines for the receipt of gifts and other benefits by employees; (iii) procedures for informing the competent authorities of the entrepreneur of corrupt proposals; (iv) procedures for dealing with whistleblowing;
The above guidelines and procedures should be 'tailor-made' for each enterprise. Due to such a challenge for companies - we offer a comprehensive adaptation of companies to anti-corruption requirements and carry out all the activities listed above. In order to receive an individualized free quote for legal services in the above-mentioned scope - please send an email to b.nadra[at]jaskowiak-nadra.pl