Criminal liability of the employing entity for violation of the PPK Act
Liability for violation of the PPK Act has the nature of criminal liability, which is imposed on entities – the employing entity or a person acting on its behalf – not on the company.
It is not the employer’s responsibility as such – e.g. a company, association or foundation. It is based on the principle of guilt, which means that a person who exhausts the description of an offense or crime should be proved that he was aware of his obligations and at least could have predicted that he was committing a criminal act (inadvertence), or even that he had knowingly committed it (intent). Also, the penalty that can be imposed for an offense or crime is a personal penalty. If it is a financial penalty (fine), it can be borne only by the punished or the person closest to him – but not the company anymore. Paying a fine for someone or giving them money for that purpose is in itself an offense.
The most severe sanctions are related to the breach of the obligation to conclude a PPK management agreement within the statutory deadline:
* For employing entities that will have to conclude PPK management contracts as early as 2019, the 2018 remuneration fund will be the reference point.
The obligation to conclude contracts in a timely manner rests with the employing entity or the person obliged to act on its behalf. In the case of employers who are natural persons, there is no doubt that this obligation lies with the entrepreneur. On the other hand, in the case of organizational units, the obligation to conclude contracts for the management and operation of PPK lies with the management body (i.e. the board) or partners handling the company’s affairs. However, the Act does not preclude further clarification of this obligation. So he can be entrusted to a specific person (e.g. director of the personnel department as a board member) or even transferred to a person who, in principle, does not represent the employing entity. In the latter case, the entrustment of obligations requires appropriate written authorization (e.g. power of attorney).
The same penalty, i.e. a fine of up to 1.5 % of the remuneration fund at a given employing entity, also the one who persuades an employed person or PPK participant to give up saving in this system. It should be remembered that participation in PPK is voluntary for employees (Article 23(1) of the PPK Act). The condition for resigning from participation in PPK is making an informed decision and submitting a written statement by the system participant / employed person who is under 55 (before becoming a participant). Of course, such a decision can be preceded by an objective presentation of the legal situation to the employed person / PPK participant. The employing entity or other persons acting on its instructions may inform employees about the voluntary nature of saving in PPK and about the possibility of resigning from participation in this program. This information cannot, however, take the form of an urging to give up:
The Act also provides for a fine of PLN 1,000 to 1,000,000 against a person (the employing entity or a person acting on its behalf) in the case of:
The performance of these obligations, as well as those imposed by the PPK Act, as a rule rests on the representatives of the employing entity. However, it is possible to delegate them to another person (e.g. head of the personnel department) on the basis of explicit authorization to take actions and perform duties related to managing PPK.
In the coming weeks, more articles on PPK will appear – we encourage you to follow the Law Firm’s news on a regular basis. If you have any questions or concerns regarding the implementation of PPK, please contact our Law Firm.