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УДК 346.2(438) DOI 10.12737/6712
Получено 11.08.2014 Одобрено 17.10.2014 Опубликовано 15.12.2014
Лик Ян
д-р юрид. наук, доцент, Краковский университет экономики, Польша, Краков
e-mail: jl@libertus.pl
Как вести экономическую деятельность в Польше
Аннотация
Концепция «бизнеса» как предпринимательской деятельности и термин «предприниматель» играют ключевую роль для разъяснения того положения, какое занимают в Польше организации, занимающиеся предпринимательством. Дефиниция указанных понятий определена в Законе о свободе предпринимательской деятельности. В соответствии с этими дефинициями предпринимателем считается лицо, которое ведет предпринимательскую деятельность ради получения прибыли (в том числе, и лица свободных профессий), от своего имени на свой страх и риск последовательным и организованным образом. В категории предпринимателей преобладают юридические лица. Организационные единицы, не имеющие статуса юридического лица, так же могут выступать предпринимателями; они носят название квазикорпораций. К таковым относятся товарищества с неограниченной ответственностью и товарищества прочих типов. Самую многочисленную когорту предпринимателей составляют физические лица, осуществляющие предпринимательскую деятельность либо индивидуально от своего лица, либо в составе общества предпринимателей на основании гражданского договора (civil partnership) (В настоящее время термин "civil partnership" приобрел иное значение, обозначая также однополые пары, официально зарегистрировавшие гражданское партнерство см. http://en.wikipedia.org/wiki/Civil_partnership_in_the_United_Kingdom — Прим. автора). Помимо польских граждан предпринимательскую деятельность в Польше могут осуществлять иностранные граждане. Гражданам Европейского Союза и стран, связанных с ним соответствующими договорами, предоставляется такая же полная свобода ведения предпринимательской деятельности, как и гражданам Польши, тогда как для граждан других стран существуют некоторые ограничения.
Предприниматель, являющийся физическим лицом, по закону обязан зарегистрироваться в органе Центрального учета и информации о предпринимательской деятельности (ЦУИПД). Такие предприниматели могут начать осуществлять предпринимательскую деятельность с самого дня подачи заявления, еще до внесения записи в, чем их организация будет зарегистрирована в ЦУИПД. Другие предприниматели — юридические лица и квазикорпорации — должны регистрироваться в Национальном судебном реестре, который ведут регистрационные суды. Юридическим лицам и квазикорпорациям разрешено приступить к осуществлению предпринимательской деятельности только после того, как будут зарегистрированы в Национальном судебном реестре. И в ЦУИПД, и в Национальном судебном реестре организовано обслуживание по схеме «одного окна», что обеспечивает возможность одновременно получить регистрацию во всех государственных органах других предусмотренных по закону.
Ключевые слова:
предпринимательская деятельность, предприниматель, организационная единица, иностранец, регистр предпринимателей, учет хозяйственных операций, юридическое лицо, правоспособность.
Lic Jan
Doctor of Juridical Sciences, Assistant Professor, Cracow University of Economics, Poland, Cracow
e-mail: jl@libertus.pl
Undertaking Business Activity in Poland
Abstract
The concept of business and the term entrepreneur are the key notions explaining the status of entities undertaking business in Poland. They have been defined in the Act on Freedom of Business Activity. According to these definitions, an entrepreneur is a person who conducts business for profit (including liberal professions), performed on their behalf in a continuous and organized way. The category of entrepreneurs is dominated by legal persons. Organizational units, which do not have legal personality, can also be entrepreneurs; these are called quasi-corporations. These include general partnerships and other partnerships. The greatest group of entrepreneurs includes natural persons conducting business activity either on their own or in a civil law partnership
In addition to Polish nationals, foreign persons may also undertake business activity in Poland. Foreign persons from the European Union and associated countries may conduct business to the fullest extent, while persons from other countries may only do that to a limited extent.
Entrepreneurs/natural persons are subject to register in the Central Register and Information on Economic Activity (CRIEA) held by the Minister of Economy. These entrepreneurs can take action immediately after application, even before their entry into the CRIEA. Other entrepreneurs — legal persons and quasi-corporations — are entered in the National Court Register (NCR) held by registry courts. They may only undertake business activity after entry into the National Court Register. Both institutions apply the "one stop shop" scheme, allowing an entry to also include record and registration activities in other government offices.
Keywords:
business activity, entrepreneur, organizational unit, foreign person, register of entrepreneurs, business records, legal personality, legal capacity.
I. The idea of business concept
and the concept of the entrepreneur
The basic concepts of Polish commercial law are defined in the Act on Freedom of Business Activity, commonly referred to as the Polish economic constitution [1]. The concept of the entrepreneur in Poland is defined based on the concept of business activity. In accordance with Art . 2 of the Act on Freedom of Business Activity, business activity is for-profit activity in manufacturing, construction, trade, and services as well as prospecting, exploration and extraction of minerals from deposits; and the professional activity carried out in an organized and continuous way. Under Art . 4 of the Act on Freedom of Business Activity, an entrepreneur is therefore a natural person, legal person or organizational entity without legal personality, whose legal capacity is recognized by a separate law, and who performs business activity on his/her own behalf. In light of these definitions, entrepreneurs are persons who conduct for-profit business activity (including liberal professions), performed on their own behalf in a continuous and organized way. The requirement of conducting business on one's own behalf eliminates holder of the commercial power of attorney, proxy or partner of a partnership from among entrepreneurs, since they always act on behalf of others [2]. However, literature often mentions the view that this is just another term for acting independently and on one's own account [3][4] .
The dominant categories of entrepreneurs are legal persons These include limited companies (limited liability companies, joint stock companies and European companies), state enterprises, cooperatives and cooperative societies, research institutes and mutual insurance companies Entrepreneurs can also be organizational units that do not have legal personality These are referred to as quasi-corporations . Despite their lack of legal personality, these units have the legal capacity conferred by law These include commercial partnerships, i e general partnerships, professional partnerships, limited partnerships and limited joint-stock partnerships . The same status is granted to the European Economic Interest Grouping and main branches of foreign insurance companies . The legal capacity and status of an entrepreneur is also given to companies in organizations, i e those that have already been established, but were not registered and therefore have not yet acquired legal personality [5].
The greatest number of entrepreneurs includes natural persons conducting business activity either alone or together with other natural, legal persons or quasi-corporations under a civil law partnership . Civil law partnerships have no legal capacity, and therefore cannot be an entrepreneur The persons within such partnerships are entrepreneurs . Nevertheless, the civil law partnership
is a business entity and as such receives a unique identification REGON number. A civil law partnership is also subject to tax law and receives its own tax identification number (NIP) [6].
II. The principles of undertaking and
conducting economic activities
Based on the general provisions of the Act on Freedom of Business Activity, one can formulate several basic principles, on which the exercise of business activity is based:
1) The principle of economic freedom .
This principle is expressed in the Polish Constitution and has been repeated and developed in art .6 of Act on Freedom of Business Activity. This provision states that the undertaking, conducting and termination of business activity are free to everyone on equal rights with the conditions laid down by law
2) The principle of promoting the development of entrepreneurship
Public administration bodies support the development of entrepreneurship by creating favorable conditions for undertaking and conducting business activity, in particular, by promoting micro-entrepreneurs, small and medium-sized businesses . The provisions of the Act on Freedom of Business Activity classify these categories of businesses based on the number of employees, turnover and the value of net assets
3) The principle of respect for the legitimate interests of the entrepreneur
In performing their tasks, public authorities act solely on the basis and within the law, while respecting the legitimate interests of the entrepreneur
4) The principle for speed of conduct
Public administration bodies are obliged to address any entrepreneurs' issues without undue delay. In particular, forms and incomplete applications from the entrepreneur cannot be refused
5) The principle of cooperation with non-state organizations
In carrying out their tasks, public authorities interact with the organizations of employers, workers, entrepreneurs and professional associations
III. Undertaking business activity by foreign
persons
A foreign person is:
a) a person without Polish citizenship,
b) a legal person based abroad,
c) an organizational unit that is not a legal entity but has legal capacity (without corporate status), having its base of operations abroad
Such persons may undertake business activity in Poland on the same terms as Polish citizens, provided they are located or reside in the European Union or associated countries (Norway, Iceland, Liechtenstein and Switzerland). The same conditions that apply to Polish citizens also apply to citizens of other countries; provided they have regulated status of staying in Poland or the European Union . Article 13 paragraphs 2 and 2a of the Act on Freedom of Business Activity precisely define the various categories of foreign citizens covered by this status . Other foreign persons have the right to undertake and conduct business activity only in the form of: limited partnerships; joint-stock partnerships; limited liability companies; or joint stock companies; and to join such companies by acquiring or purchasing their shares, unless international agreements provide otherwise
IV. Records and registration of entrepreneurs
Common rules
In Poland, a two-tier system of business registration has been adopted Natural persons, including partners in a civil law partnership conducting business activity, are entered in the Central Register and Information on Economic Activity (CRIEA) . All other entrepreneurs who are not natural persons, including partners of a civil law partnership who are not such persons, shall be entered into the register of entrepreneurs of the National Court Register (NCR) . Records in the CRIEA shall be kept in administrative mode, and its legal regulation is covered by the Act on Freedom of Business Activity. The registration procedure is a judicial proceeding and its legal regulation was included in the Act on the National Court Register (Act of 20. 8 .1997. on the National Court Register (Journal of Laws of 2007, No . 168, item . 1186, as amended)
Art . 14 of the Act on Freedom of Business Activity is crucial to the entrepreneur's duties of record and registration According to this provision, the entrepreneur may undertake business on the date of application for entry into the CRIEA records (before registration) or following their entry into the business register of the National Court Register (after registration) A limited company in organization may undertake business activity prior to entry into the business register It is assumed that the entry in the register or the records is mandatory, although not constitutive After all, an entry does not determine the fact that one becomes an entrepreneur One already becomes an entrepreneur once one has met the conditions of definition required by law and actually starts an economic activity [7].
Central Register and Information on Economic Activity
The records shall be kept in the Information and Communication Technologies system by an administrative body; namely the Minister of Economy. The task of CRIEA is to record the entrepreneurs who are natural persons and provide information about entrepreneurs, as well as provide free access to the data contained in the records CRIEA does not issue any certificates for public authorities, as these bodies can obtain relevant information directly from the CRIEA website via the electronic Platform of Public Administration Services (e-PUAP) .
Applications for entry in the CRIEA may be submitted using the electronic forms downloaded from the e-PUAP website The electronic form must bear a secure electronic signature verified by a valid qualified certificate or a trusted profile, which is a kind of simplified electronic signature intended for contact exclusively with the public administration Another way to submit an application for registration is to fill it out in person at the municipality office In this case, the office converts it into electronic form and sends it to the CRIEA. An application may also be submitted by registered mail, but then the signature requires a notarial certificate
Entry in the CRIEA also requires the entrepreneur's identification data: their address, nationality, type of activity performed and the place of its execution, proxy appointment; and after the first entry, much more data on the important events related to its activities, such as suspension of business or bankruptcy The information included in the application is sent by CRIEA to the necessary extent to:
1) The head of the competent tax office to identify or update and give the entrepreneur a Tax Identification Number (NIP) and to choose the form of taxation for the entrepreneur;
2) The Central Statistical Office (GUS) in order to make or change an entry in the National Official Register of Business Entities (REGON);
3) The Social Insurance Institution (ZUS) or Agricultural Social Insurance Fund (KRUS) in order to report the payer or to change their contribution scheme
This way, the "one stop shop" principle is exercised, aimed to facilitate undertaking business by entrepreneurship adepts . It is also much easier since the entry in the CRIEA is free of charge [9].
Entry in the CRIEA involves entering data into the computer system no later than the next business day after submitting the application Two principles apply to entries:
1) The principle of formal openness — this means that the data entered into the CRIEA are open to the
public, except for the entrepreneur's social security number, date of birth and residential address, if different from their place of business activity. The CRIEA provides data through its website
2) The presumption of veracity — the data contained in the registry is considered true — this means that third parties can trust the content of an entry and establish business relationships with the entrepreneur, e g enter into agreements with them through their proxy as long as they are listed as a proxy in the CRIEA.
National Court Register
The register of entrepreneurs in the computer system is held by district courts (commercial courts) competent to the area of a province or portion thereof, referred to as «registry courts» . The registration procedure is a judicial proceeding, governed by the provisions of the Code of Civil Procedure (Act of 17.11.1964. - Code of Civil Procedure (Journal of Laws No . 43, item. 296, as amended)) on non-litigious proceedings . IT support for the register is provided by the Central Information of the National Court Register
An application for entry in the NCR should be made on an official form Applications submitted electronically should bear a secure electronic signature verified by a valid qualified certificate The applicant may also submit their application in person It is not possible, however, to send an application by registered mail The application for entry shall be complete with certified signatures of the persons authorized to represent the entrepreneur or their proxy
The register of entrepreneurs includes much more data than CRIEA These are recorded in six sections, wherein the data are divided into data common to all entrepreneurs and separate data, depending on the legal status of the entrepreneur. In addition to the data identifying the entrepreneur and defining its scope of activities, data is also recorded regarding the persons authorized to represent them, along with the manner of representation, data on tax arrears, customs and social security charges and data about debts documented by judicial rulings as well as information about the liquidation, dissolution of the company, its transformations and bankruptcy
The data included in the application are not automatically transferred to other offices, although while applying for entry, the applicant shall also submit:
1) a request for entry or change of entry in the National Official Register of the Nationalized Industries Units (REGON);
2) a request to the ZUS in order to report the payer or to change their contribution scheme within the meaning of the provisions on the social insurance system;
3) an identifying or updating request to the competent tax office in order to acquire a NIP number
The registry court sends these requests to the appropriate offices, providing the «one stop shop» principle in NCR as well This rule, however, does not apply to applications submitted via the electronic form In this case, the applicant itself shall send requests to various government offices
The registry court shall address the application for entry into NCR no later than 7 days from the date of its submission Unlike in the case of CRIEA entries, the registry court shall examine the veracity of the applicant's identity data, and if it has reasonable doubts, also whether other reported data are consistent with the actual state of affairs [8]. Also, unlike in CRIEA, an entrepreneur may not start a business activity immediately after application, but only after acquiring an entry in the NCR
Like in the case of CRIEA, an entry in the NCR involves entering the data covered by the registry court order immediately after its release into the system The entry is made upon submitting the data covered by the registry court order immediately after its release into the NCR Entries in the NCR must be published in the Court and Economic Monitor (MSiG), while entries in the CRIEA do not need to be published in any publication . In contrast to the entry in the CRIEA, both the entry and its ad in the MSiG are payable
Three important principles apply to entries in the register:
1) The principle of formal openness — this means that everyone has the right of access to the data included in the NCR through the Central Information; everyone may also pay to receive (including electronically) certified copies, extracts, certificates and information from the NCR Also, everyone has the right to view the records of registered entities entered into the Register. The registry files also include a set of facsimile signatures of the persons authorized to represent the entity entered into the Register Everyone has the right to view these signatures
2) The presumption of veracity — this means that, like in CRIEA, the data contained in the registry is considered true, and therefore the entity entered into the register cannot hide behind the plea against persons acting in good faith that these data are not true, if their immediate rectification, addition or deletion has been neglected Also, this entity cannot rely on third parties acting in good faith on the data that have not been entered in the Register or that have been deleted
3) The principle of substantive disclosure — due to the fact that the entries are announced, this principle also applies, stating that no one can plead ignorance of announced entries data since the publishing in MSiG
The following entities are entered in the register:
1) partnerships (general partnerships, professional partnerships, limited partnerships, limited join-stock partnerships, European Economic Interest Groupings);
2) limited companies (limited liability companies, joint stock companies, European companies);
3) cooperatives and cooperative societies;
4) state-owned enterprises;
5) research institutes;
6) foreign small-scale manufacture enterprises;
7) branches of foreign companies;
8) main branches of foreign insurance companies;
9) main branches of foreign reinsurance companies;
10) mutual insurance and reinsurance companies;
11) budget institutions;
12) other legal persons conducting economic activity (e g , foundations, associations)
Although not all limited companies have to run a business, they are always entered in the register
The legal status of these businesses is different . Legal persons include:
1) limited companies,
2) cooperatives,
3) state-owned enterprises,
4) research institutes,
5) mutual insurance and reinsurance companies,
6) budget institutions,
7) other legal persons conducting economic activity (e g , foundations, associations)
Legal entities without corporate status (quasi-corporations) include:
1) partnerships,
2) head branches of foreign insurance companies
3) head branches of foreign reinsurance companies .
Branches of foreign companies do not have legal
capacity of their own and therefore, are neither legal persons nor quasi-corporations; as a result, they are not considered entrepreneurs within the meaning of the Act on Freedom of Business Activity, although they are entered in the NCR [10]. Rights and obligations are acquired by their mother companies
Foreign small-scale manufacture companies are run by foreign natural and legal persons pursuant to the provisions of 1982. Their importance is minor, since on the basis of these provisions no new such enterprises could have been established since the 1990s
References
1. Gnela B., [w:] Prawo handlowe dla ekonomistow, red. B. Gnela, Warszawa 2012, s. 17.
2. Szydlo M, Swoboda dziaialnosci gospodarczej, Warszawa 2005, s. 89—90.
3. Kosikowski C, Ustawa o swobodzie dziaialnosci gospodarczej. Komentarz, Warszawa 2009, s. 4.
4. Strzyczkowski K, prawo gospodarcze publiczne, Warszawa 2009, s. 223—224.
5. Kidyba A., Prawo handlowe, Warszawa 2005, s. 222.
6. Lic J., Spoika cywilna. Problematyka podmiotowosci prawnej, Warszawa 2013, s. 599.
7. Etel M. PojQcie przedsiQbiorcy w prawie polskim i prawie Unii Europejskiej oraz w orzecznictwie s^dowym, Warszawa 2012, s. 258-259.
8. Gnela B., [w:] Prawo handlowe dla ekonomistow, red. B. Gnela, Warszawa 2012, s. 26-27.
9. M. Modrzejewska, [w:] Prawo handlowe, red. J. Okolski, Warszawa 2008, s. 86.
10. Prominska U., [w:] Prawo cywilne i handlowe w zarysie, red. W. J. Katner, Warszawa 2009, s. 53-54.
