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The Act on the Freedom of Economic Activity also regulates supervision over an enterprise. Once again, it is worth stressing that it is a regulation that applies unless stipulated otherwise in detailed regulations (lex specialis derogat legi generali). In practice, numerous regulations set out provisions slightly differently changing the supervision over an enterprise.
As a rule, each supervising body is obliged to give an enterprise advance notice of an inspection. For this purpose, the supervising body sends a relevant notification to the enterprise containing information on when the inspection is planned and what it concerns. The inspection must be instigated between seven and thirty days from the date of submitting the relevant notification. If the inspection does not start within thirty days from the date of serving the notification, another notification must be sent.
Inspections can be performed by one person or by an inspection team, who must present their authorisations to perform the inspection (showing professional ID as an employee of the control authority and delivering the authorisation to perform the inspection). The inspecting parties must act in an objective and impartial manner. If partiality is proven in the acts of a party belonging to the inspection team, the inspected enterprise can apply for this party to be excluded from the inspection proceedings.Before commencing the first inspection activity, an inspector is obliged to notify the inspected enterprise or the party subject to control activities about their rights and obligations during the inspection. Inspection proceedings are performed in the presence of the inspected body, or a properly authorised individual. The enterprise is entitled to participate in every inspection activity. The inspection is performed at the registered office of the inspected party, at the place of performing business activity or-with the inspected party’s consent or application-in any other location where documents are stored, during business hours or while the inspected party performs business activity. At the inspected party’s consent, the inspection or certain inspection activities, may be performed also in the registered office of the supervising authority, if this can facilitate the performance of the inspection. The inspection cannot obstruct the work of the enterprise. This is the reasons why, as a rule, the enterprise must be notified about the intention to carry out an inspection so that it can prepare for it (prepare documents, premises etc.) However, the inspection activities should be performed in an efficient manner, without disturbing the operations of the inspected enterprise. If the enterprise indicates, in writing, that the performed activities significantly disturb the business operations of the enterprise, the inspecting authority must justify the need to undertake these activities in an inspection report.
An enterprise is obliged to maintain the inspections log, as well as inspection authorisations and reports, and to keep all such documentation in its registered office. The inspection log may be in the form of a set of documents, but it may also be maintained in an electronic form. It is used by the enterprise to document the number and duration of inspections performed on its business. It should be presented to the inspecting team at the beginning of an inspection.
As a rule, it is not allowed to undertake and perform more than one inspection on an enterprise’s business at once. The Act on the Freedom of Economic Activity also introduced limits regarding the duration of an inspection. During one calendar year,the total duration of all inspections by the inspecting authority regarding an enterprise cannot exceed:
1) 12 business days for microenterprises;
2) 18 business days for small enterprises;
3) 24 business days for medium enterprises;
4) 48 business days for other enterprises.
Extending the duration of an inspection is possible only for reasons not attributable to the inspecting authority, and it requires a written justification. The justification is delivered to the enterprise and entered in the inspection log before commencing further inspection activities. If it is found that tax liabilities are not settled correctly, the inspecting authority may extend the time of the inspection up to twice the limits indicated above. If inspection results indicate a gross infringement of the law by the enterprise, a repeat inspection may be performed with regard to the same subject matter in a certain calendar year, and the duration of this inspection cannot exceed seven days. The duration of a repeat inspection is not added to the limits presented above.
An enterprise may file a written protest against the supervising authorities commencing and performing certain supervision activities (for example, breaching the principles of instigating the inspection without notifying the enterprise and failing to observe the time limits for instigating the inspection without an authorisation or under an authorisation with incorrect wording, the inspector failing to present his service card before commencing the inspection activities, infringing the regulations on excluding an employee, failing to notify the controlled party about its rights and obligations during the inspection, performing inspection activities against the requirement of the controlled party or an authorised individual being present during the inspection, breaching the prohibition on undertaking and performing several inspections simultaneously, or breaching the time limit for the duration of an inspection). Only the enterprise whose rights as an inspected entity were breached by the improper behaviour of the inspecting authority is entitled to submit a protest. The protest is submitted to the authority that undertakes and performs the inspection within three days from the date of the authority instigating the inspection, and in the event of exceeding the time limit for the inspection-within three business days from the date of exceeding the limit. The enterprise must justify the protest, by referring to the activities or situations that are against the law, and indicating which norms were breached. In the event of submitting a protest, the inspection activities are suspended, along with the duration of the inspection itself.While the protest is being reviewed, the inspecting authority may secure the evidence gathered so far related to the subject matter and the scope of inspection. Documents, information, samples of goods and other carriers of information are secured if they constitute or may constitute evidence during the inspection. Within three business days from the date of obtaining the protest, the inspection authority reviews the protest and issues a decision on ceasing the inspection activities, which constitutes an acceptance of the protest as justified, or issues a decision on continuing the inspection activities, thereby considering the protest unjustified. The decision on continuing inspection activities can be appealed against by the enterprise within three days from receiving the decision. The appeal is filed with an authority superior to the inspecting authority (the appeal authority). The appeal is resolved by issuing a decision within seven days from the date of its submission. The appeal authority issues a decision at the end of the appeal proceedings in which it may sustain the decision being appealed against, or may issue an order to cease the inspection activities.
Rafał Blicharz
[1] Constitution of 2 April 1997, Journal of Laws 1997.78.483 as amended.
[2] The act of 2 July 2014, Journal of Laws 2015.584 as amended, hereinafter: the AFEA.
[3] The tax law assumes a slightly different definition.
[4] Journal of Laws 2007.251.1885 as amended.
[5] Journal of Laws 2015.1676.
[6] The act of 7 July 1994, Journal of Laws 2016.290 as amended.
[7] The act of 4 March 2010, Journal of Laws 2016.893.
[8] the act of 23 April 1964, Journal of Laws No 116, 2016.380 as amended, hereinafter: the CC.
[9] See comments in Section II of this paper regarding partnership.
[10] Article 2 of the Unfair Competition Act, Journal of Laws 2003.153.1503 as amended.
[11] This does not apply to food products and medical products.
[12] The act of 20 August 1997, Journal of Laws No 2016.687 as amended.