As we wrote in our previous Law-Now Alert, medium-sized and large enterprises (with over 50 employees or turnover of more than EUR 10 million) can expect new requirements regarding their internal anti-corruption policies.

If the draft act on transparency in public life enters into force, all business entities in the above group will be obliged to apply internal anti-corruption procedures aimed at preventing such offences as bribery in the public and private sectors or collusion in tenders. The act contains an open catalogue of actions that may be taken within the framework of anti-corruption procedures, in particular:

  • acquainting employees with the principles of criminal liability for corruption offences (anti-corruption training);
  • preventing the creation of bribery funds using company assets;
  • inserting clauses into contracts prohibiting contractual remuneration for giving financial benefits;
  • developing a code of ethics;
  • developing policies regarding receiving gifts and benefits by employees;
  • developing a procedure for informing the competent authorities within the company about corrupt proposals.

Failure to meet these obligations will be punishable by severe penalties if a person acting on behalf of or for a company is accused of corruption. This is a significant change compared to the current regulations on the liability of collective entities. The liability of an enterprise for a crime committed by its representative or employee requires that the person responsible be sentenced by a court under a binding judgment. Due to the long duration of criminal proceedings, such sanctions have rarely been imposed.

Upon receiving information from the public prosecutor about presenting charges to an individual, the Head of the Central Anticorruption Bureau (CBA) will be authorised to investigate the company’s use of anti-corruption procedures without giving prior notice. If no procedures are in place or they are sham or ineffective procedures, the CBA will request the company to voluntarily pay a penalty. If the company does not comply with this request, the CBA may apply to the President of the Office of Competition and Consumer Protection (UOKiK) to impose a fine of between PLN 10,000 and PLN 10,000,000. An enterprise will be able to avoid the penalty if it notifies the law enforcement authorities of a reasonable suspicion that a crime has been committed by a person acting on its behalf. The President of UOKiK’s decision may be appealed against to the civil court. If a binding penalty is imposed the enterprise is also disqualified from applying for a public contract for five years.

The planned changes may suggest a change in the attitude of the law enforcement authorities. Until recently in practice the authorities focused on the liability of individual perpetrators and not the business entities on whose behalf these individuals acted.