Liability of collective entities – revolutionary changes are in the pipeline

On 28 May 2018, on the website of the Government Legislation Centre (website address: http://legislacja.rcl.gov.pl/projekt/12312062/katalog/12511889#12511889), a bill on liability of collective entities for acts prohibited under penalty and amendments to certain other acts was announced. According to the bill of the Ministry of Justice, the new act is to replace the existing solutions provided for in the Act of 28 October 2002 on the Liability of Collective Entities for Acts Prohibited Under Penalty (Journal of Laws No. 197, item 1661).

As you can read in justification for the bill, the new act on liability of collective entities is to increase the effectiveness of tools intended for imposing sanctions on collective entities, especially in the case of combating serious economic and fiscal crime. Pursuant to the bill presented by the Ministry, the proposed legal solutions are characterized by several important novelties compared with hitherto existing regulations.

Originators of the new act want to abandon the requirement of obtaining the so-called prejudication, i.e. a prior final decision on criminal liability of a natural person. Simultaneously with the planned changes, the Ministry of Justice also wants to abandon the currently applicable detailed list of prohibited acts that, when committed by a natural person, may lead to liability of a collective entity, and adopt a broad definition of a probated act as a crime or fiscal offense. What is more, the bill assumes that in order to hold a collective entity liable, it will not be necessary to determine a specific perpetrator of a prohibited act, but it will be enough to prove that the prohibited act has been committed within the framework of the collective entity’s operations. The fact or possibility of obtaining benefits by a collective entity will not be a necessary condition of the liability either.

The planned changes also provide for making sanctions imposed on a collective entity more severe and extensive.

The new act is to give the prosecutor an opportunity to decide on conducting preparatory proceedings jointly against a natural person – the perpetrator of an act and a collective entity. Finally, transitional provisions of the bill assume that the act will also apply to offenses committed before its entry into force.

The changes in the law on liability of collective entities, which have been announced for some time, are approaching fast. As the originators of the new law assume, law enforcement authorities will receive a much more effective tool to hold collective entities liable – entrepreneurs who have got rich as a result of crimes and tax offences.

Attorney at law Michał Korszla