Criminal law for corporations in Poland
Unlike Germany, Poland has a criminal law for corporations existing already for over 13 years, basing on which in the event of the appropriate prerequisites provides the possibility to impose a penalty on the company as an organizational unit.
The concept of an undertaking in the Polish criminal law for companies
The term undertaking includes legal persons (limited liability company and joint-stock company), as well as companies that although they are not legal persons, but due to special legal regulations have the capacity in their own name to have certain rights and obligations (individual trading companies such as general partnership, professional partnership, limited partnership). This also applies to capital companies in creation and in accordance with the wording of the law also foreign organizational units (e.g. branches of foreign companies in Poland).
The prerequisites for the liability of the company
First requirement: final conviction of a natural person
The prerequisite for the criminal responsibility of the company is the criminal responsibility of a natural person (ancillary nature of corporate liability). This means that first of all, a person who is entitled to represent the company, to make decisions on behalf of the company or to implement internal audits has been finally convicted of committing a criminal offense, which is listed in the discussed Act.
This applies in addition to the managing directors of a limited liability company according to Polish law and members of the board of directors of a joint-stock company according to Polish law, but also members of other organs such as the members of the Supervisory Board or the Audit Commission. However, considered are also people, who with the consent or knowledge of the members of various company bodies are working for the company (authorized representatives).
Crimes that can result in criminal liability of the company are in particular the following criminal offences committed by one of the above-mentioned persons:
- Infidelity (art. 296 StGB of the Polish Penal Code),
- Credit fraud (art. 297 StGB of the Polish Penal Code),
- Insurance fraud (art. 298 StGB of the Polish Penal Code),
- Money-laundering (art. 299 StGB of the Polish Penal Code),
- Bribery and corruption in business transactions (art. 296 StGB of the Polish Penal Code),
- Bribery of judicial officers (art. 229 StGB of the Polish Penal Code),
- Use of trade secrets (art. 23 of the Polish law on the prevention of unfair competition),
- Tax-criminal acts.
Second prerequisite: provision of a pecuniary benefit
It is important in this context that the offence committed by the persons either actually gave a tangible or intangible advantage to the company or it was at least possible to introduce such an advantage to the company. The term “material advantage” (pecuniary advantage) includes any aid for the company that leads to increases on the assets side or to a reduction on the liabilities side of the balance sheet. The pecuniary advantage has generally an economic value that is expressed in money. This is the difference to personal benefit, which serves the satisfaction of individual needs.
Third prerequisite: Criminal responsibility of the company
Another important condition for the criminal responsibility of a company is the accountability of the fault of one of the persons who are working for the company and in this respect have committed a criminal offense for which they have been sentenced. The law says hereto that the commission of the offense is a consequence of the absence of necessary care in selection (culpa in eligendo), or supervision of a person (culpa in custodiendo) who became active for the company with the consent or with the knowledge of members of company bodies.
On the other hand, according to the wording of the law the company is subject to criminal responsibility if the offense was the result of a faulty internal organization has not prevented the commission of a criminal offense by members of the company bodies (in particular by executives and board members) hence under the circumstances of necessary due diligence by members of other company bodies this offense could have been prevented.
In the presence of the above-mentioned conditions, the Court can impose a fine in the amount of 1,000.00 PLN up to 5,000,000.00 PLN, whereby this imposed fine cannot exceed the amount of 3% of the revenue of the financial year in which the offense leading to condemnation of the company was committed. In addition, the Court can declare the expiry of the pecuniary benefits that has been obtained at least indirectly from the committed crime. There is also the possibility to impose a ban on the company for a period of one year up to 5 years covering the participation in public tenders or also the advertisement of own products or services.
Practical importance of the Polish criminal law for companies
Despite significant progress in the fight against corruption, Poland is in recent years very committed to preventing this type of crime. This is done on the one hand by means of information campaigns of different nature, but on the other hand, above all, by determined actions of public authorities responsible for the fight against corruption, such as the Central Office for the Fight against Corruption (CBA). It is, therefore, to be expected that in the future not only legally prosecuted people will be punished, but increasingly also the companies for which the “perpetrators in suits“ have been acting.
Interesting in this context is the second option of fault allocation as a prerequisite for criminal responsibility of the company. This can be not prosecuted in case of commission of crimes by managing directors and board members, if there is an internal organization within the company preventing the commission of offences, in particular corruption cases. Here is one of the starting points of the Polish law for the need of introduction of the so-called compliance systems.
The concept of compliance means nothing other than compliance with certain specified internal company policies – in particular, rules about how the employees of the company shall behave so that no crimes will be committed. A compliance system existing only on paper is not enough. Should the compliance management existing within the company be used in a criminal proceeding against the company as an argument in favor of the company, a functioning compliance system lived by the employees is also necessary.
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