Poland: Crime Of Active Corruption And Commercial Bribery As Grounds For Exclusion From Public Contracts Award Procedures

A conviction for the crimes of active corruption and commercial bribery, which are defined in art. 229 and 296a of the Polish Criminal Code (CC), not only brings about consequences on the grounds of criminal law, but also implies negative consequences in other spheres of law. One of these involves administrative law, more precisely public procurement law, which provides that company officers convicted for the above-mentioned crimes are to be excluded from public contract award procedures.

Active corruption

The main function of penalizing the crime defined in the art. 229 CC, namely active corruption, lies in protecting the regular functioning of public institutions and trust in their employees. In the above context, this function also extends to ensuring the economically prudent management of public funds. Active corruption is a so-called "common crime", meaning that it can be committed by everybody, regardless of whether the perpetrator acts as a natural person, as an organ of a legal person, or serves as a representative of an organizational unit without legal personality.

Active corruption involves giving or simply promising to give material or personal benefit to a person performing public functions in connection with his/her public duties.

Art. 229 § 3 CC defines a qualified type of active corruption that might take two forms. In both of them, the perpetrator acts in the same way: he/she gives (or promises to give) material or personal benefit to a person performing public functions in order to induce him/her to act in violation of the law. Another qualified type of the analyzed crime involves giving or promising to give material benefit of considerable value (currently: PLN 200.000, which is roughly EUR 47,000).

Commercial bribery

The crime of commercial bribery (formerly called management bribery"), which is defined in art. 296a CC, was introduced to Polish legislation as an implementation of binding acts of international law and obligations connected with Poland's accession to the EU.1 The function of the provision is - consistent with the principles of fair competition - to protect the regular functioning of business entities and, to some extent, also to protect the interests of the purchasers of goods and services.2

In contrast to the active corruption defined in art. 229 CC, commercial bribery is an individual crime that can only be committed by specific categories of perpetrators: persons who perform management functions or in the context of an employment contract, a commission contract, or a contract to perform a specified task.

In the current version of art. 296a CC, the scope of potential perpetrators of commercial bribery was defined so broadly that it de facto lost its original character as a "management crime" and simply became an ordinary business crime.

The conduct of commercial bribery perpetrators involves: (i) requesting or accepting material or personal benefits or the promise thereof (passive bribery), or (ii) giving benefits or promising to give benefits in return for:

  • abusing powers granted to him/her or disregarding his/her official duties in manner that may cause financial damage to an entity (it is sufficient for the financial damage has to be probable; it does not actually have to take place); or
  • acts of unfair competition (within the meaning of the Act of 16 April 1993 on combating unfair competition)3 ; or
  • forbidden preferential treatment of a purchaser or recipient of goods or services (this should be understood as an act that gives priority to a certain purchaser or recipient not only in contradiction to the provisions of legal acts, but also in violation of rules and customs accepted in given relationships)4.

The CC also specifies privileged and qualified types of passive bribery. The former involves cases of lesser significance" while the latter is applicable when the perpetrator by his/her act or omission causes considerable financial damage to a given business entity.

With respect to the perpetrator of passive or active bribery of "lesser significance", the CC provides exemption from penalty in the event that the material or personal benefits (or the promise thereof) were accepted and the perpetrator notified the organ competent to prosecute such crimes about this fact and revealed all relevant circumstances of the crime before the organ learned about it independently.

Consequences on the ground of public procurement law

According to art. 24 section 1 points 4-8 of the Act of 29 January 2004 on  Public Procurement Law (PPL), natural persons who have been validly sentenced for any of the following are to excluded from public contracts award procedures: an offence committed in connection with a contract award procedure; an offence against the rights of people performing paid work; bribery; an offence against economic turnover; any other offence committed with the aim of gaining financial profits; a treasury offence;  or, an offence of participation in an organized crime group or in a union aimed at committing an offence or treasury offence. In addition, legal persons and other organizational units whose decision-making bodies were convicted for the abovementioned offences are also excluded from public contracts award procedures.

According to §3 section 1 point 5 of the Regulation of the Prime Minister of 19 February 2013 on the types of documents that an awarding entity may require from the economic operator and the forms in which such documents may be provided, the awarding entity is obliged to or is entitled to require the economic operator to present current information from the National Register of Criminal Records (NRCR) to the extent specified in art. 24 section 1 points 4-8 PPL. The awarding entity is obliged to require information from the NRCR when the procurement value is equal to or exceeds the value thresholds of procurements and design contests that require the dispatch of a notice to the Office for Official Publications of the European Communities. Below these thresholds, the awarding entity may request from the economic operator to present information from the NRCR, but that the awarding entity is not obliged to do so.

When the potential operator falls under one of the categories defined in art. 24 section 1 points 4-8 PPL, the awarding entity is obliged to exclude the potential operator from the public contract award procedure. The awarding entity cannot disregard this fact or hold that it is not relevant. 

Footnotes

1 J. Giezek (red.) Kodeks karny. Część szczególna. Komentarz, LEX 2014, [hereinafter:] J. Giezek, Komentarz do art. 296a Kodeksu karnego.

2 J. Giezek (red.) Kodeks karny. Część szczególna. Komentarz, LEX 2014, [hereinafter:] J. Giezek, Komentarz do art. 296a Kodeksu karnego.

3 Dz.U. 2003 Nr 153 poz. 1503

4 O. Górniok (red.), Kodeks karny. Komentarz, Warszawa 2006, [hereinafter:] M. Bojarski, Komentarz do art. 296a Kodeksu karnego, s. 865.

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