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Principles are of key importance for systematic regulations in every area of law. By providing normative interpretation guidance, they help resolve doubts arising in the process of applying the law. Quite often, they also indicate the limits of rights, freedoms, and sometimes also obligations of enterprises, consumers and other participants of economic activity. The principles of commercial law include, most frequently, the freedom of economic activity, equality, legality, transparency and respect for fair competition. The majority of these principles are based on the Polish Constitution; they are widely developed and justified in the case-law and in the doctrine. The principle of the freedom of economic activity means the freedom to make decisions on undertaking economic activity. This means that nobody can be forced to undertake and conduct business activity and, in general, nobody can be prohibited from conducting it (as long as they do not act illegally). This also means that an enterprise enjoys the freedom to select the object of its business, its form and scope. While the selection of the object is generally unlimited-an enterprise may conduct any business activity (in any area) -the selection of the legal form, on the other hand, may be limited. For security reasons, the legislator introduced a range of limitations regarding the form, depending on the selected object of business (e.g. banking, insurance activity, joint investment institutions). The scopes of business activity are estimated by the duration of an entity, its location, quality and object of business. While undertaking business activity, an enterprise may individually select the duration of its operations, though this does not happen often. This means that an enterprise may operate for indefinite time. The territorial scope of activity means the area where the business is conducted. Enterprises usually do not limit this either, which means that they may operate within the whole country, and in the European Union. In some cases, the scope of business operations may also dictate the quality of performed services. This may apply, for instance, to some tourism services (hotel services standards). On the other hand, the subjective scope is estimated by an enterprise’s selection of types of business activities.
The principle of equality means that enterprises that are in the same actual and legal situation should be treated in the same way. Any forms of discrimination due to age, sex, religion, sexual orientation, origin, political beliefs, ethical, moral beliefs etc. are prohibited.
The principle of legalism imposes on enterprises the obligation to observe the applicable laws, including the principles of social co-existence and accepted customs. This rule refers also to the functioning of public administration bodies, which may act only on the basis and within the limits of law.
According to the principle of transparency, business activity is transparent for everyone. This principle is exercised through the transparency of commercial registers, as well as by the obligation to place relevant marking on the services performed and the goods manufactured, or the enterprise giving, in correspondence, its register number, tax identification number (NIP) or other identifying marks.
When conducting business activity, an enterprise is obliged to respect also the principles of fair competition. This means not only observing the competition law, but also the protection of competition as a social and economic phenomenon, and the protection of competitors and consumers.
Among the principles of business activities, some authors also list the principle of public assistance, protection of property, respect for public interest, justified interest of third parties, mutual recognition of certificates, licences or documents confirming that the conditions for undertaking and performing business activity in the EU are performed, and the freedom to enter into agreements.
Among the rights of enterprises provided for in the commercial law, in addition to the principles listed above, it is worth mentioning also the right to suspend business activity and the right to address authorities in charge for issuing a binding interpretation of a regulation. A contact point also facilitates business.
Suspending business activities and resuming the performance of business activities takes place at the request of an enterprise. An enterprise who does not employ any staff may suspend the performance of business activities for a period from 30 days to 24 months. Exemptions from this principle are provided for. An enterprise that does not employ any staff, and which has been conducting business activity for at least six months, may suspend the business for up to three years in order to take care of a child in person, though not longer than until the end of the calendar year in which the child becomes six years old, and in the case of a child who, due to a health condition (confirmed by a certificate of disability or certification of disability level), requires personal care by an individual who conducts business activities, then for up to six years,but not exceeding the date of the child becoming eighteen years old. The extension of the suspension period is possible once in full, or in up to four parts. In the case of performing business activity as a partnership, the business can be effectively suspended provided that all its partners suspend the business. An enterprise that performs business activity as a partner in more than one partnership may suspend the business in one or in more such partnerships, but an enterprise that performs business activity in various legal forms, may suspend the business in one of these forms. During the business activity suspension period, an enterprise cannot perform business activity or obtain any ongoing profits from any non-agricultural economic activity. However, the enterprise has the right or obligation to:
1) perform all activities necessary to keep or securing the source of income;
2) receive due amounts or the obligation to pay liabilities, arising before the date of suspending the performance of the economic activity;
3) sell its own fixed assets and equipment;
4) participate in court proceedings, tax and administration proceedings related to the business activities performed before suspending the economic activities;
5) perform all obligations imposed by applicable laws;
6) obtain financial revenues also from activities conducted before suspending the business activity;
7) it may be subject to inspection in line with the rules provided for enterprises performing economic activities.
With regard to public law obligations, suspending the business activities is legally effective from the date on which the suspension of business activity starts, until the date preceding the date of resuming the business activities.
Taking into account the certainty of interpretation of legal provisions by public administration bodies, the legislator provided enterprises with the right to obtain a binding explanation of legal provisions. An enterprise may submit an application to a public administration body in charge for a written interpretation regarding the scope and method of applying the provisions of law, or on imposing the obligation to pay a public duty or premiums for social or health insurance, in its individual case. A request for an interpretation may apply to the existing actual status or to future events. In the application for an interpretation, the actual status or future event must be presented together with the applicant’s own standpoint in the case. The interpretation is issued following a decision that can be appealed against. The interpretation contains an indication of the correct opinion in the case, together with its legal justification and instructions about the right to lodge an appeal. It is issued without undue delay, but no later than within 30 days from the public administration body receiving a complete and paid for application (detailed regulations provide also for longer time limits for issuing interpretations in some cases, e.g. in tax issues). In the event of an administration authority failing to issue an interpretation within the time limit it is assumed that the standpoint of the enterprise indicated in its application for issuing the interpretation by the body is correct. More importantly, the interpretation is not binding on the enterprise, though it cannot be charged with any public duties, administrative, financial sanctions or penalties within the scope in which it adhered to the obtained interpretation. On the other hand, the interpretation is binding on the public administration authorities in charge for the enterprise. The interpretation is also binding on an enterprise acting in line with the well-established practice of interpretation exercised by the applicable public administration authority. Well-established interpretation practice is understood as the explanation of the scope and method of applying regulations, imposing the obligation to pay a public duty or premiums for social or health insurance, by an enterprise, dominating in decisions issued with regard to the same factual situations or future events and in the same legal status. Interpretations of public administration bodies are generally available on their websites and on the Public Information Bulletin’s website.
A contact point is an electronic form of servicing enterprises conducted by the minister in charge of the economy (currently in Poland it is the Minister of Development). Using an electronic platform of public administration services, the minister enables certain issues related to undertaking, performing and winding-up business activities in the RP to be dealt with by exchanging information on-line. The contact point allows for applications to be submitted to the relevant authorities on-line, including applications to make entries in the Central Register and Information on Businesses, benefits or notifications necessary for undertaking, conducting or winding-up business activity and approving professional qualifications. It also serves for obtaining certain information regarding procedures and formalities required while undertaking, performing or winding-up business activity in the Republic of Poland, general principles of providing services in the European (Economic Area) states, contact information for certain bodies, indicating the scope of their competences, methods and conditions for access to public registers and public databases containing information on business activity and enterprises, the legal measures available in the event of a dispute between an authority in charge and an enterprise or a consumer, or between an enterprise and a consumer, or between enterprises, as well as other disputes.
Among special obligations of an enterprise that are imposed by the Act on the Freedom of Economic Activity, it is worth pointing out the obligation to ensure the performance of certain activity by individuals holding certain licences, the obligation to make payments between enterprises based on a cashless settlement system, or obligations related to implementing the principle of transparency in business. If detailed regulations impose the obligation to holding relevant professional qualifications while performing a certain type of business activity, the enterprise is obliged to ensure that the activities within the business activity are performed directly by an individual holding these professional qualifications.
On the other hand, the obligation to make payments in cashless turnover involves the performance or acceptance of payment related with the performed business activity with the use of a payment account of the enterprise, in each case when:
1) another enterprise is a party to the transaction that is paid for, and
2) the one-off value of the transaction, notwithstanding the number of payments resulting from it, exceeds the equivalent of PLN 15,000, where transactions in foreign currencies are calculated into PLN according to the average exchange rate for foreign currencies announced by the National Bank of Poland, on the last business day before the date of the transaction.
Due to the transparency principle, enterprises are obliged to mark goods marketed in the Republic of Poland. In general, an enterprise is obliged to place an instruction on goods, their packaging, labels, or to deliver the following written information in Polish in any other manner usual for these goods:
1) the producer’s name and address, the state in which the producer is registered, if it is located outside the European Union member states and outside the member states of the European Free Trade Association (EFTA) – the parties to the European Economic Area Treaty;
2) allowing the goods to be identified, unless the designation of goods is obvious [11] .
Detailed regulations may impose on enterprises the obligation to publish more detailed information.
In addition, if an enterprise offers goods or services for direct selling or for remote selling with the use of mass media, teleinformation networks or non-addressed printed forms, it is obliged to submit in an offer at least the following information:
1) the enterprise’s business name;
2) tax identification number (NIP);
3) the enterprise’s registered address.