Recently enacted and planned changes in corporate criminal liability in Poland
On 2 September 2022, the Polish Ministry of Justice published a draft of far-reaching changes to the liability of collective entities, which would eliminate the requirement to obtain a predicate ruling for all criminal and fiscal offences for which collective entities could be held criminally liable. We discuss these changes in an updated version of our guide to corporate criminal liability in Poland.
In April 2021, when we published our guide to corporate criminal liability in Poland, we pointed out that one of the key conditions for this model of liability is the requirement of a predicate ruling: to initiate criminal proceedings against a collective entity, it is first necessary to obtain a ruling establishing commission of a prohibited act by a natural person associated with the collective entity (primarily a conviction). This requirement is unusual within the European context and clearly makes it difficult to hold corporate entities liable for criminal and fiscal offences in Poland. We also wrote about planned amendments to these rules. Now, a year and a half later, we can see change beginning.
On 1 September 2022, an amendment entered into force modifying this picture in the case of environmental offences. In environmental cases, the requirement to obtain a predicate ruling against an individual has been abolished.
Then, on 2 September 2022, the Polish Ministry of Justice published a proposal of changes to the liability of collective entities across the board, which is expected to eliminate the requirement for a predicate ruling for all criminal and fiscal offences for which collective entities can be held liable. These changes are not as far-reaching as those planned earlier in 2018 and 2019 (discussed in the original version of the guide), but if they enter into force, they will still have momentous consequences for the operation and legal standing of companies in Poland.
The planned changes would:
- Repeal the requirement to obtain a predicate ruling
- Narrow the scope of corporate entities subject to liability for criminal and fiscal offences, to focus on large entities
- Significantly expand the range of criminal and fiscal offences for which collective entities can be liable
- Significantly expand the grounds for liability
- Provide for the liability of:
- Participants in a merger, division or reorganisation of a collective entity for acts committed prior to the transaction
- Acquirers of the enterprise of a collective entity for fines and other sanctions imposed against the entity
- Increase several times over the level of potential fines against collective entities
- Affect the procedural guarantees of collective entities and their ability to defend themselves against criminal liability.
We describe these changes, as well as those that have already entered into force, in more depth in our updated guide, which we invite you to read.
Jakub Znamierowski, adwokat, Łukasz Lasek, adwokat, Business Crime practice, Wardyński & Partners