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The foundations of Polish entrepreneurship, including the freedom of business activity, equality and protection of property rights are guaranteed by the Constitution of the Republic of Poland. [1] Article 20 of the Constitution introduces the principle of a social market economy in Poland and stipulates that the economy is based on the principle of the freedom of business activity, private ownership and solidarity, dialogue and cooperation between social partners, and it constitutes the basis of the economic system in the Republic of Poland. A more detailed, basic and comprehensive legal act that regulates undertaking and conducting business activity in Poland is the Act on the Freedom of Economic Activity. [2] This act is of a general type, which means that, if not stipulated otherwise by any other act applicable to economic activity in Poland, this act is the one that applies (as expressed by the Latin concept: lex specialis derogat legi generali).
Business activity as a process involves connecting and using various elements (e.g. equipment, labour, technology, information networks, products) in order to achieve certain objectives, namely to develop certain goods or perform certain services. The starting point always includes certain input elements used by the entity conducting the business; their processing results in finished products-the anticipated result of the business activity. On the other hand, the legal definition of business/economic activity is set out in the Act on the Freedom of Economic Activity, sometimes referred to as the"constitution of public commercial law". According to Article 2 of the AFEA, economic activity is activity in exchange for remuneration, such as creating, constructing, trading and performing services, exploring, recognising and mining mineral ores, as well as professional activity performed in an organised and continuous manner. [3] This definition of economic activity comprises several structural elements. They include: exchange for remuneration, a certain type of economic activity (sector of the economy), as well as continuity and an organised manner.
In order to be considered economic activity, certain activity must be performed with the intention to make profit. This means that the activity of each enterprise must be in exchange for remuneration and profit-oriented, even if the activity does not bring any. Failing to achieve profits may result from incompetent management or the intentional activity of the enterprise, which may incur higher operating costs (advertising, promotion, purchase of materials and equipment, and developing infrastructure), particularly when starting the business, than the profits it generates. Objective factors decide whether certain activity may be profitable. If a certain activity performed by a rational person may bring profits, it is considered gainful activity. If a certain activity, objectively speaking, cannot bring a profit (e.g. non-profit business, altruistic activity, satisfying one’s own needs), it cannot be considered gainful activity, and as a consequence, it cannot be treated as economic activity either.
Types of activities indicated in the definition-creating, constructing, trading and performing services, exploring, recognising and mining mineral ores as well as professional activity serve as examples here. A full catalogue of such activities may be wider, though the one indicated in the act is so extensive that it is difficult to find any other type not defined there. The Act on Freedom of Economic Activity does not define certain types of business activities. Other legal acts are useful in this regard, first among them the Regulation of the Council of Ministers on the Polish Classification of Business Activity (PKD) of 24 December 2007, [4] the Regulation of the Council of Ministers on the Polish Classification of Goods and Services (PKWiU) of 4 September 2015, [5] and the Construction Law. [6]
It is often difficult to set out the limits of production activity (manufacturing) as a term. According to the PKD Regulation, production activity is understood as physical or chemical processing of raw materials, materials or semi-products into new products (industrial processing). Raw materials or semi-products that are processed result from agricultural, forestry activities, fishery, mining or other production activity. Material changes, processing, renovation and reconstruction, the assembly of products from own or purchased materials are also connected with manufacturing. However, producing a new final product, when waste is used at the input of the manufacturing process (e.g. producing confetti out of paper waste) is considered production activity (as opposed to the recovery of recyclables). On the other hand, secondary raw materials resulting from processing waste should be considered intermediate products and not new finished products.
An attempt could be made at defining construction activity on the basis of the Construction Law, according to which, construction works are understood as constructing,works involving reconstructing, assembling, repairing or demolishing a building facility.
The Regulation on PKD describes commercial activity as activity involving the purchase and resale of certain goods.
The term "services" is widely understood. Although currently a normative definition of this term does not exist, it can be assumed that service is any performance that does not result in producing new goods (products). It is also worth pointing out that services and economic activities are considered as separate terms under European law. Consequently, the Polish Law on Providing Services in the Republic of Poland, [7] defines a service as the performance by the service provider made on its own account, usually in exchange for remuneration, in particular construction, commercial services and services performed within certain professions. On the other hand, the service provider is:
1) an individual, legal entity or organisational unit without legal personality, from other member state, not conducting business activity, that temporarily offers or performs a service in the Republic of Poland;
2) an enterprise from other member state that conducts business activities in line with the regulations applicable in that state and temporarily offers or performs a service in the Republic of Poland;
3) an individual, legal entity or organisational unit without legal personality, with their registered address or address of residence in the Republic of Poland, not conducting business activity, that temporarily offers or performs a service.
A customer is understood as an individual, legal entity or organisational unit without legal personality, from a member state, using or intending to use the services performed by the service provider.
Exploring, recognising and excavating mineral deposits from ores is a qualified type of business activity. Undertaking and conducting business activities in this sector generally requires obtaining a licence, namely a special administrative document based on which the enterprise can conduct certain type of activity. The geological and mining law defines exploration as performing geological works in order to establish and produce initial documentation for mineral ores, underground water or underground residues of carbon dioxide, while recognising is defined as the performance of geological works within the area of the initially documented mineral ore, underground waters or an underground residue of carbon dioxide.
Professional activity is understood both as performing certain profession, particularly freelance professions (e.g. an attorney-at-law, doctor, nurse or architect) as well as the performance of activities in a professional way, i.e. professionally. Performing certain professions may be considered as performing business activities only in the event that the activity is performed by professionals in their own name and on their own account. Therefore, performing certain profession under an employment relationship is not performing business activities.
In addition, in order to be considered economic activity, certain activities must be performed in an organised way and continuously.
The organised way means undertaking a set of activities aimed at both preparing and performing business activity. Undertaking business activity requires performing a range of formalities, mainly concerning registration, as well as logistics, organisational, and often also factual formalities. The requirement of being organised includes also operations while conducting business activity. Each enterprise should be organised enough to be able to properly perform business activities (e.g. a car mechanic does not have to have all the parts of a car, but at least those spare parts that are most often replaced or repaired, and in addition, he should ensure permanent supplies from an entity that will immediately deliver the necessary tools and materials to the enterprise). It is usually assumed that every entity is organised, only the level of organisation varies. Taking into account the professional nature of conducting business activity, an enterprise should be organised to the greatest possible extent. The enterprise’s liability for the services performed is also judged in line with this criterion.
At the same time, continuity means that the enterprise is oriented towards permanently conducting business activity at least for a certain period. Performing services incidentally cannot be considered business activity, even if all the other premises of the definition are met. Continuation is observed both when an enterprise conducts business non-stop, permanently (e.g. for five days a week), and in the event of conducting temporary business (e.g. seasonal – rents ski equipment only in winter, sells ice cream in summer only), or if he/she participates in a one-off business undertaking, namely with the intent of conducting business activity (e.g. constructing one house, or a set of single-family houses).
In some cases, certain activities will not be considered business even if they meet all requirements and grounds of a business activity. This may occur in the following circumstances:
1) production in agriculture, including agricultural crops and livestock and animal husbandry, gardening, horticulture, forestry and inland fishery;
2) lease of apartments, sale of homemade meals and performing other services to tourists residing in farms;
3) production of wine by farmers manufacturing less than 100 hectolitres of wine during one economic year;
4) activities of farmers including the sale of their own agricultural products.