POLAND Law and Practice Contributed by: Tomasz Konopka, Katarzyna Randzio-Sajkowska, Katarzyna Stradomska-Balcerzyk and Michał Zieliński, Sołtysiński Kawecki & Szlęzak
3.4 Insider Dealing, Market Abuse and Criminal Banking Law Pursuant to Article 181 of the Act on Trading in Finan - cial Instruments, anyone who uses inside information contrary to the prohibition referred to in Article 14 (a) of Regulation (EU) No 596/2014 of the European Par - liament and of the Council of 16 April 2014 on market abuse (MAR) shall be liable to a fine of up to PLN5 million or imprisonment for a period of three months to five years, or both these penalties jointly. Article 14 (a) of the MAR provides that it is forbidden to: • engage or attempt to engage in insider dealing; • recommend that another person engages in insider dealing or induce another person to engage in insider dealing; or • unlawfully disclose inside information. 3.5 Tax Fraud As mentioned in 1.1 Criminal Offences , tax offences are described under a separate legal act, the FCC. Under Polish law there is an obligation to prevent tax evasion. Failure to prevent tax evasion is a criminal offence. A tax offence occurs when a taxpayer expos - es a tax to depletion by submitting a tax return to a tax authority that is untrue or conceals the truth. The most popular tax offence, VAT fraud, usu - ally involves the use of fake or otherwise unreliable invoices. These crimes are provided under Articles 270a and 277a of the CC. Forgery of or tampering with an invoice in relation to circumstances influenc - ing the amount of a tax (or other public obligation) or its refund, in order to use such an invoice as an authentic one, or using the fake invoice, constitutes a separate offence. The perpetrator is liable to impris - onment for a period of six months to eight years. If the perpetrator forged or used invoices documenting transactions whose value exceeded PLN5 million, or forging or using fake invoices constituted a source of their permanent income, the offence is considered as a felony and is punishable by at least three years of imprisonment. Moreover, if the value exceeded PLN10 million, the perpetrator is liable to imprisonment for a period of five to 25 years.
As a member of the European Union, Poland has also implemented a range of EU legal acts on combating corruption. National Legislation The main national legislation in the area of anti-bribery and anti-corruption is the Polish Criminal Code, which provides for most offences relating to corruption. In particular, the CC’s provisions regulate issues related to liability for official, international and business cor - ruption. However, some offences related to bribery and corruption are laid down in separate regulations. For instance, liability for corruption in sport is provided for under the Act on Sport. Corrupt conduct may be prevented by restrictions imposed on persons holding public functions linked to participation in a business activity. Pursuant to the provisions of the Act on Limiting the Conduct of Business Activity by Persons Holding Public Functions, persons holding public functions may not be members of governing bodies in commer - cial law companies, or work or undertake actions on behalf of business entities if the objectivity of their role is called into question. Persons holding public func - tions also cannot hold more than 10% of the shares in commercial companies or conduct their own business activity. In addition, they are obliged to submit asset declarations, including those that are part of marital joint ownership. At present, legal provisions do not impose the obligation on business entities to imple - ment compliance programmes. However, many firms operate such programmes. An amendment to the CC came into effect on 1 October 2023. This amendment introduced many fundamental changes to the CC, in particular by increasing the penalties for certain offences, including bribery and corruption offences. For example, the act increases the penalty for corruption offences where the finan - cial benefit exceeds PLN200,000 from up to 12 years’ imprisonment to up to 15 years’ imprisonment; and where the financial benefit exceeds PLN1 million, from up to 15 years to up to 20 years of imprisonment. (see 3.1 Criminal Company Law and Corporate Fraud) .
237 CHAMBERS.COM
Powered by FlippingBook