We finally got to see the first reading of the draft of the Economic Activity Act. This bill was mentioned by PM Kopacz in her exposé as one of the legislative priorities. It was also supposed to be the flagship of the new philosophy of economic freedom, according to which law should be created with the 99 percent law-abiding citizens – rather than the 1 percent of schemers – in mind.
Therefore, it was not a surprise to see the state administration subordinate to the PM start an all-out assault on the act, which almost ended with the draft getting killed off at the government stage of the legislative process. How could the officials swallow the bitter pill of lessened burdens on entrepreneurs and civilized control procedures? We are glad that the Sejm has found time to deal with the act and hope that it will be passed before the end of this term.
The draft addresses the balance between entrepreneurs and officials, clearly pointing to the obligation of the latter to help the former. Entrepreneurs will regain some of the economic freedom that was not secured in the act from 2004. The new law will be an economic constitution of sorts – theoretically with a position above all the other bills on economic activity. There are no foundations for it in terms of the political system and the act will not be a code, but the intention of the legislators is clear: the Economic Activity Act is to serve as a reference point for all legal regulations pertaining to entrepreneurship. This explains why a preamble was used – this has not been the case thus far, and only the Constitution has one now.
It is worth pointing out that specific regulations were subject to hard battles between the legislators – the Ministry of Economy supported by employers’ organizations, and other ministries and dozens of other government institutions. There was serious concern that the act will not come to fruition at all – as the objections of many officials boiled down to opinions that no changes can be introduced without serious problems in everyday functioning. No one wanted to be subject to regulations restricting the controls of entrepreneurs – using many arguments, from effectiveness and efficiency to EU law. If the legislators were to yield to the pressure, the act would benefit officials rather than entrepreneurs and be little more than a catalogue of exemptions. Fortunately, this is not the case and the new act can restrict the officials’ omnipotence.
Entrepreneurs are glad that the act includes a catalog of basic principles of economic activity and the functioning of the administration, a.o. the principle stating that “what is not prohibited by law, is legal”, the principles of resolving ambiguities in the interpretation of the content of a legal norm and irremovable factual doubts in favour of entrepreneurs. We know most of these principles from other acts, but it is appropriate to reiterate them. It serves an educational purpose and is a clear message for officials. Frankly, the point is to make them apply regulation in an appropriate manner and keep fundamental principles in mind. They are more likely to do so if they find all these principles in one place.
Given that there is little time left until the end of the term, we expect members of the parliament to work on the draft with engagement and intensity. The act, so important for entrepreneurs, should not be subject to the discontinuation rule – as that would mean binning it only because of the Sejm’s and Senat’s tardiness. Representatives and experts of employers’ organizations are ready and willing to provide members of the parliament with any support necessary to conclude the works on the act before the end of the term.
Arkadiusz Pączka, Director of the Legislation Monitoring Centre of Employers of Poland