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Restrictions on conducting business activity constitute an important exception to the principle or economic freedom. Article 22 of the Polish Constitution stipulates that limiting the freedom of business activity is permitted only due to an important public interest and it may take place only in the form of a statute. Based on this, any forms of restricting business activity in Poland must have a statutory basis and must be justified with an important public interest.
The four basic forms of restrictions in Poland are: a concession, permit, regulated business activity and a licence. Other forms of restrictions-referred to as soft ones, are consent, protest, approval and notification.
A concession is a form of restricting business activity reserved for the state. In the majority of states there are areas of business activity reserved only to the state. These most often include the sectors of economy that are of key importance for the state’s security-energy, defence, natural resources management and media. These areas set out the limits of the state monopoly, referred to as a legal monopoly. A concession involves waiving the monopoly in favour of enterprises selected by the authorities in charge of certain types of business (most frequently by ministers and local government bodies). Taking into account the above, it is natural that a concession is granted only to entities who can guarantee that this type of business will be performed properly. Concession proceedings leading to issuing a concession aim to verify the credibility of the enterprises trying to obtain it. Concession proceedings are administrative proceedings that are often performed through tender proceedings (depending on detailed regulations). This is usually the case when the number of enterprises who meet the requirements for granting a concession and giving a guarantee of proper performance of activity covered by the concession is higher than the number of concessions on offer.
The full catalogue of types of business activities subject to receiving a concession is included in Article 46 of the AFEA. These include:
1) prospecting and exploring hydrocarbon reserves and mineral deposits covered with mining property rights, prospecting or exploring an underground complex, storing carbon dioxide, excavating minerals from deposits, storing substances underground outside containers, and storing waste and carbon dioxide underground;
2) manufacturing and marketing explosives, weapons, ammunition and products and army or police technologies;
3) producing, processing, storing or reloading, transmitting, distributing and marketing fuels and energy;
4) transmitting carbon dioxide for the purpose of storing it underground;
5) protecting people and assets;
6) broadcasting radio and television programmes, excluding programmes broadcast exclusively through communication and information systems not broadcast by celestial, satellite or cable networks;
7) air transport services;
8) operating a casino.
As issuing a concession is a discretionary administrative decision (namely the concession granting body may refuse to grant a concession, even if the enterprise applying for it meets all the required conditions), an enterprise may apply for promise of a concession, namely a promise that a certain concession will be issued in the future. The promise stipulates that a concession will be granted subject to the applicant meeting the conditions of performing business activity that requires obtaining a concession. The promise is granted for a fixed term of at least six months. Obtaining the promise allows for some level of certainty that the concession will be issued within the time limit set out in the promise. This way, an enterprise is given time to prepare for the activity subject to the concession, to make certain investments, to enter into cooperation with contractors. When this is done, the enterprise again addresses the authority with a request to be granted the concession based on the obtained promise. The concession authority may only refuse to grant a concession within the term of the promise when:
1) the information included in the application for a promise has changed;
2) the applicant has failed to meet all conditions required for obtaining the concession;
3) due to the risk to the security and defence of the state or citizens.
A permit constitutes a revocation of a general prohibition to perform an activity. Unlike with a concession, which concerns activity reserved to the state, business activities that require a permit cannot be performed by any entity without such a permit,including public authorities, state (local government) entities or any other state (local government) organisational units. In other words, anyone intending to undertake this type of business activity must obtain a permit. A permit is an administrative decision, issued following administrative proceedings. It is a constrained decision, meaning that the administrative authority must issue the permit to an applicant that meets the conditions provided for by the law. As a rule, a permit entitles the holder to perform business activity throughout Poland and for an indefinite time. Exceptions to this rule may be introduced by detailed regulations. The Act on the Freedom of Economic Activity (AFEA) sets out a list of statutes containing regulations that require obtaining a permit (Article 75 of the AFEA). The obligation to obtain a permit to conduct business activity was also provided for under banking law, capital markets law, pharmaceutical law and aviation law.
Regulated activity is the business activity that requires meeting detailed conditions set out in applicable laws. The restrictions in regulated activity generally lie in the obligation to register in a special register. The AFEA does not set out a catalogue of types of restricted business activities, though they include, for instance, business activity in the field of producing tobacco products, postal activities, detective services, conducting a nursery or a children’s club, the business of conducting veterinary services, organising tourist events and intermediating at customers’ request in entering into tourist services agreements. The register is available to everyone. It is maintained by a separate public administration body for each type of activity, and in some cases, by a professional association. A party interested in undertaking regulated activity receives a registration certificate upon filing a registration application, if it is reviewed with a positive result. The authority maintaining the register should issue the certificate within seven days and, if it fails to do so within this time limit, and if the application was completed correctly, the enterprise may commence the activity after fourteen days from filing the registration application.
The requirement to obtaining a licence in Poland applies only to certain types of activities regulated by the Road and Railway Transport Law.
Soft forms of restricting business refer to the possibility of making single or cyclical legal activities or conducting activities with regard to a certain subject matter.
As a rule, holding a concession, permit, consent, licence or being entered in the register of regulated business activities entitles the holder to perform business activity throughout Poland for an indefinite time.
