Restrictions on business operations and personal freedoms relevant for business | In Principle

In connection with the coronavirus epidemic, restrictions have been introduced on economic activity and personal freedoms which are unprecedented in the history of adoption and application of law in Poland since 1989. Even now it is evident that the coronavirus epidemic will touch on all sectors of the economy. The restrictions introduced so far have resulted in practically halting all activity in gastronomy, tourism, entertainment, and retail and services at shopping malls and large-format stores.

[Update of 3 April 2020]

The scope of the restrictions has gradually tightened. First the Anti-Crisis Act was adopted on 2 March 2020 (Act on Specific Solutions for Preventing, Counteracting and Combating COVID-19). On 13 March the Minister of Health declared a state of epidemiological threat in Poland, then on 20 March a state of epidemic. A regulation of the Council of Ministers establishing certain restrictions, requirements and prohibitions in connection with the state of epidemic entered into force on 1 April 2020.

Under the regulation, certain forms of commercial activity and certain personal freedoms of citizens relevant for the possibility of conducting business have been restricted until further notice. The main ones are discussed below.

Ban on activity increasing the risk of coronavirus infection

Under the regulation, a total ban was adopted on certain forms of activity (gainful or not), including among other things:

• Preparation and serving of food and beverages to third parties for on-site consumption (Polish Classification of Activities code PKD 56.10.A), as well as consumption and serving of beverages (PKD 56.30), but excluding preparation and serving of food for takeaway or delivery, and excluding restaurant and bar activity in means of transport
• Organising, conducting and staffing events such as fairs, exhibitions, conferences and meetings (PKD 82.30.Z), artistic activity connected with collective forms of culture and entertainment (PKD 90.0), and projection of films or videos at cinemas or in open space (PKD 59.14.Z)
• Activity involving sport, entertainment and recreation, in particular operating meeting places, clubs, including nightclubs and fitness clubs, swimming pools and gyms (PKD 93.0), and operating casinos
• Hotel services and tour guide services, as well as operation of tourist lodging facilities and other locations for short-term lodging (PKD 55.20)
• Operation of libraries, archives and museums (PKD 91.0)
• Operation of health resorts, as well as haircare services and other cosmetic procedures (PKD 96.02.Z).

Ban on conducting certain forms of economic activity at shopping centres and large-format stores

On 13 March 2020, a ban was introduced on operations by tenants of retail and service space in commercial structures with a sales area above 2,000 m².

This ban originally covered certain arbitrarily selected types of activity and applied exclusively to tenants of spaces in shopping centres and large-format stores. This situation changed significantly on 21 March and again on 1 April, when, with a few exceptions, the ban was extended to all retail and service activity, and not only tenants but also owners of space at shopping centres and large-format stores. In effect, the ban covers:

• Retail trade by owners and tenants of retail space, except for those whose primary business involves the sale of food, cosmetics, toiletries, cleaning products, medicinal products (including products sold at pharmacies and pharmaceutical locations), medical devices, newspapers, construction and renovation supplies, pet supplies, and fuels
• Service activity by owners and tenants of service space, except for those whose primary business involves performance of medical, banking, insurance, postal, laundry or gastronomic (limited to food preparation and delivery) services.

In effect, practically all activity at shopping centres and large-format stores has come to a halt, resulting in a radical loss of revenue on the part of owners and tenants of space in those structures.

Major restrictions on the manner of operations and opening hours were introduced with respect to other commercial structures.

Restrictions on trade and export of medicinal products, medical devices, and certain foods

The regulation introduces an absolute ban on export or sale beyond the borders of Poland of ventilators and cardiac monitors, and also requires undertakings to notify the competent province governor prior to export or sale beyond the borders of Poland of personal protective equipment such as goggles, surgical masks, shoe covers and the like.

The crisis act of 2 March 2020 introduces the possibility of setting maximum prices for medicinal products, medical devices, and foods for special medical purposes for the purpose of combating the coronavirus epidemic. Moreover, for the same purpose, the crisis act authorises imposition on healthcare providers of a duty to perform healthcare services, financed out of public funds but without following the regime of the Act on Healthcare Services Financed out of Public Funds.

Ban on gatherings

The regulation has introduced a ban on holding public gatherings, i.e. gatherings of persons in open space accessible to unnamed persons at a certain place for the purpose of expressing a shared position on public matters. Originally the ban applied only to public gatherings of more than 50 people. From 24 March the ban was expanded to cover all public gatherings, regardless of number, as well as other gatherings of any type, except for meetings and gatherings connected with performance of professional activities or official tasks, as well as a few other types of meetings.

Restrictions on land transportation

The regulation greatly restricts land transportation. The restrictions include:

• A ban on movement by all persons in Poland in matters other than satisfying current needs of life, except for movement for performance of professional activities or official tasks, non-agricultural economic activity, agricultural activity, or work on a farm
• A ban on rail travel by passengers crossing the Polish border
• Mandatory quarantine for persons crossing the Polish border to reach their place of domicile or residence in Poland, except for crossing the border to perform professional activities in a neighbouring state or in Poland, including by the crew of aircraft or seacraft and drivers in road transport and international transport.

The crisis act provides that operators of airports or railway stations, and air, rail or road carriers, shall not be liable for loss suffered due to justified actions by the public authorities aimed at combating COVID-19, in particular for the inability to conduct carriage.

Order to provide access to property, premises or land for combating epidemic

The regulation imposes on possessors of property, premises or land the duty to provide access to them for the purposes of combating the epidemic, if provided for in the plans for combating the epidemic prepared by province governors based on the Act on Preventing and Combatting Infections and Infectious Diseases in Humans.

Violation of the orders or restrictions imposed by the regulation constitutes a petty offence, punishable by a fine.

Other state administrative authorities have introduced additional restrictions connected with the coronavirus epidemic. The most important of these are discussed below.

Restrictions on air travel

On 15 and 16 March, based on a regulation of the Council of Ministers of 13 March 2020, the Civil Aviation Authority issued a ban on landing by civil aircraft at airports and airstrips in Poland operating domestic or international passenger flights, except for cargo flights, flights without cargo or passengers, state flights, and flights performed for the purpose of protecting or saving human life or health or protecting public order.

Border controls

On 13 March 2020 the Minister of the Interior and Administration issued a regulation temporarily restoring border controls of persons crossing the state border.

Conclusion

The state of law established pursuant to entry into force of the crisis act and the regulation, and the amendments to the regulation of 24 March 2020, employs practically all available legal means under the current legal system.

If it proves that combating the coronavirus epidemic requires the use of even further-reaching measures, it will most likely require declaration of a state of emergency in Poland.

Krzysztof Libiszewski, attorney-at-law, M&A and Corporate practice, Wardyński & Partners