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Entrepreneurs: Does combating the COVID-19 epidemic allow public authorities to interfere in the operation of private companies?

Entrepreneurs: Does combating the COVID-19 epidemic allow public authorities to interfere in the operation of private companies?

In the face of the expanding COVID-19 epidemic and efforts to combat it, they are appearing among entrepreneurs, especially those who operate in the key segments of the economy today (e. g. health care, pharmaceutical and food industry, textile industry, energy, transport), concerns about possible interference of public authorities in their functioning.

It is particularly important to determine whether and under what conditions public authorities may take over the assets of private companies, or impose obligations, orders or prohibitions on companies, for the purposes of combating the COVID-19 epidemic or in other crisis situations.

The following are the most important legal provisions empowering public authorities to intervene in the activities of operators to combat COVID-19 or other epidemics and emergencies.

  1. Law of March 2, 2020 on special arrangements for the prevention, prevention and combating of COVID-19, other infectious diseases and the crisis situations caused by them.

First of all, the provisions of the so called „European Parliament" adopted on March 2, 2020 should be the subject of research. the COVID-19 epidemic expert group.

Well, according to the provision of Article 11 (2) the abovementioned special act. The Prime Minister, at the request of the voivode, after informing the minister in charge of economy, may, in connection with the counteraction of COVID-19, issue instructions to legal persons and organizational units without legal personality and entrepreneurs. Instructions shall be given by administrative decision, shall be immediately enforceable upon their receipt or publication and shall not require any justification.

The performance of the recommended tasks takes place on the basis of an agreement concluded with the entrepreneur by the relevant voivode and is financed from the state budget from the budget part which is at the disposal of the voivode.

However, the work connected with conducting preparations for the implementation of the above mentioned tasks, which are of planning character, is financed from the entrepreneur's own resources.

If the trader refuses to conclude the contract, the tasks are carried out on the basis of an administrative decision which is immediately enforceable.

Instructions may also be given orally, by telephone, by electronic or other means of communication. The content and essential motives of such a case should be recorded in a file in the form of a protocol or an annotation signed by a party.

The artwork is in the article. 11 (6 and 8) the provisions of paragraphs 6 and 8 include the following restrictions on the scope or feasibility of the instructions:

  1. orders may not concern decisions on the merits of a case settled by way of an administrative decision, and may not concern operational, exploratory, investigative and prosecution activities,
  2. the competent minister may suspend the execution of orders and request the Prime Minister to settle the dispute, at the same time stating his position on the matter.
  1. Act on Preventing and Combating Infections and Infectious Diseases in People of December 5, 2008.

In the event of an epidemic emergency or a state of epidemics in the area of more than one province, the Minister of Health is entitled under Article 46 § 2-4 of the Act to issue an ordinance announcing this state and establishing various restrictions, orders and prohibitions, among others in respect of the movement, circulation and use of certain objects or foodstuffs, the functioning of certain institutions and establishments, or the provision of real estate and means of transport for counter-epidemic activities.

On March 20, 2020, the Minister of Health issued a regulation on declaring the state of the epidemic in the Republic of Poland in connection with SARS-CoV-2 infection. This Regulation contains a number of restrictions, prohibitions and injunctions as mentioned above. Some of them directly concern entrepreneurs operating in the industry, among others health care, catering, advertising, entertainment, cultural, sports or commercial.

In accordance with Article 46a of the Act, in the event of an outbreak of a state of epidemics or a state of epidemic danger of a nature and size exceeding the capacity of the competent government administration bodies and bodies of local government units, the Council of Ministers may define, by way of an ordinance, the area at risk, together with an indication of the type of zone where the outbreak or state of epidemic danger occurred, as well as the type of solutions applied.

To the most severe solutions for entrepreneurs, as defined in Article 46b of the Act belongs, among others

  1. temporary restriction of certain business activities of undertakings,
  2. temporary regulation of the supply of certain items,
  3. temporary restriction of the use of premises or land and obligation to secure them,
  4. an order to evacuate within a specified period of time from specified places, lands and facilities,
  5. an order or prohibition to stay in specified places and facilities and in specified areas.

However, the furthest-reaching power conferred on public authorities is reflected in Article 46d § 5 of the Act, pursuant to which if it is not possible to supplement strategic reserves by the Material Reserves Agency within the time limit allowing for effective prevention of an epidemic, the competent minister or the minister in charge of health, by way of an administrative decision, orders the takeover of medicinal products, medical devices, foodstuffs for special nutritional purposes or personal protective equipment necessary for patients or equipment or apparatus for the benefit of the Treasury. The decision shall be immediately enforceable from the date of its notification.

  1. Act of August 23, 2001 on the organization of tasks for the benefit of state defense performed by entrepreneurs.

Last but not least, it is worth noting the special type of legal solutions adopted under the Act of August 23, 2001 on the organization of tasks for the benefit of state defense performed by entrepreneurs.

This act regulates the scope and procedure of establishing obligations imposed on entrepreneurs in connection with, inter alia, the mobilisation of the economy and external threats to national security, as well as in situations of threat to human health or life.

The provisions of the Act shall apply to entrepreneurs of particular economic and defence importance, i. e. entrepreneurs performing the tasks listed in Article 3, so, among other things. in the field of energy, pharmacy, health care, postal services, telecommunications, distribution, radio and television broadcasting, or production and distribution of foodstuffs for special nutritional purposes.

Entrepreneurs of special economic and defence importance are listed in the Regulation of the Council of Ministers on the list of entrepreneurs of special economic and defence importance of November 3, 2015.



Michał Puk

Lawyer

Michał Puk

Barrister, Counsel

Michał Puk

Contact:

Rondo ONZ 1
00-124 Warsaw