REMARKS ABOUT THE POLISH ACT ON LOBBYING

The Act on Legislative and Regulatory Lobbying was passed by the Parliament in July 2005 and came into force on 7 March 2006. The Act describes the principles of conducting lobbying activities. “Lobbying activities” consist of actions conducted by legally admissible methods that seek to influence public authorities in the law-making process. Lobbying activities aim to ensure that the arguments and interests of social and professional groups are taken into account in the decisions of public officials. Lobbying may also be practiced by organisations and associations with the objective of protecting and promoting the interests of their members.

The Act also introduces the notion of “professional lobbying activity,” that is, lobbying on behalf of other persons in exchange for money. As construed in the law, professional lobbying activities consist of gainful lobbying activities conducted on behalf of third parties for pursuing their interests in the law-making process. Professional lobbying activity may be exercised on the basis of a civil law contract by an entrepreneur or by a physical person who is not an entrepreneur.

Entities conducting such activities must communicate details about themselves to the relevant publicly-accessible Register. The Ministry of Administration and Digitization (MAC) is required to keep such a Register of legal entities professionally conducting lobbying activities. An entity which performs professional lobbying activities without entering them in the Register is subject to a fine ranging from Euro 1 000 to Euro 17 000. Such a sanction is to be imposed by way of an administrative decision by the Minister of Administration and Digitization. Determining factors for the level of the monetary penalty are the degree of influence of the lobbyist on the decision of a public authority, as well as the scope and nature of professional lobbying activities undertaken by the entity. It is possible to impose the monetary fine repeatedly, if the professional lobbying activities were  continued without due entry in the Register.

At least once every six months, the Government prepares and publishes on the web site of the Public Information Bulletin (BIP - Biuletyn Informacji Publicznej) the programme of legislative work concerning draft laws. This legislative work programme also indicates any end to the work on a given draft law, along with the reason for such a halt. Similar programmes of legislative work are prepared and published on draft ordinances. These plans are drawn up by the Council of Ministers, the Chairman of the Council of Ministers, and by the individual ministers. Draft laws and ordinances are disclosed in the BIP once they have been transmitted for co-ordinating consultations with the members of the Council of Ministers.

Public Hearing

After publication, anyone is able to submit “notification of interest” (on an official form) in the work on the draft laws or ordinance to the body responsible for the preparation of such a draft. Such notification is also published in the BIP. Subsequently, the notifying party is able to present an opinion concerning the specific draft during the “public hearing”.

The body responsible for preparing a draft ordinance is able to conduct a public hearing on the draft. Information concerning the timing of the public hearing on a draft ordinance is made available in the BIP at least seven days prior to the date of that public hearing. Any party which has submitted its interest in the work on the draft ordinance at least three days before the date of the public hearing is entitled to participate in the public hearing.

A public hearing on a bill already introduced to the Polish Parliament is to be conducted in accordance with the principles specified in the procedural rules of Parliament. In such a case, a party that had submitted its notification of interest in the work on the bill is able to participate in the public hearing on the draft.

Information on Personnel Supporting Law-making

Important provisions of the new Act include requirements to furnish information on assistants and voluntary assistants of parliamentarians and ministers, employees of political cabinets of ministers and staff of the parliamentary caucuses. Leaders of the parliamentary caucuses, deputies and senators, as well as ministers, are required to publicly disclose information.

Remarks about the Act on Lobbying

The Act on Lobbying in the law-making process adopted by the Polish Parliament provoked doubts and criticism amongst the Polish public. But reactions were often contradictory. The principal and most serious criticism related to the limited scope of the Act. Namely, it established a subjective list of legislative institutions, which are obliged to be open to lobbyists; but for unknown reasons the list did not include the Office of the President of the Republic of Poland. Another criticism with regards to the Act concerns the insufficient control measures applicable to lobbying activities. Control is handled by officials of the same institutions where lobbying activities take place. According to the critics, such a solution can lead to “excessive discretion”, lacks uniformity of control criteria, and represents a serious risk of exposure to conflict of interest.

The Association of Professional Lobbyists in Poland criticised the Act, saying it was drafted too rapidly, and that some of its provisions reflect outright wishful thinking (e.g. the enigmatic provision stating that the heads of public offices are obliged to assure appropriate conditions for the conduct of lobbying activities).

Provisions concerning the public hearings organised by the ministries also seem rather “unfortunate”. Article 9 Paragraph 4 states that if “... due to constraints of the available rooms, in particular owing to the number of persons wishing to participate in a public hearing, it is not feasible to organise a public hearing concerning a draft regulation, the entity entitled to its organisation may: (...) cancel the public hearing, disclosing the reasons behind such cancellation in the Public Information Bulletin (BIP)”. This provision might provide opportunities for irregularities, owing to the fact that it enables the ministries to avoid a public hearing.

The Polish Confederation of Private Employers “Lewiatan” (Leviathan), which groups a number of major business enterprises in the country, stated that the regulation adopted by the Polish Parliament does not resolve the problem of corrupt lobbying, as it does not grant active lobbyists such rights as to motivate them to leave the “shadow economy”. According to the authors of the statement, only balanced duties and rights on the part of entities performing professional lobbying activities, extending beyond the scope of the rights to which each and every citizen is entitled to by virtue of the law, can contribute to the elimination of the “grey zone” in the environment of lobbyists.

Indeed, the newly introduced regulation ought to eliminate the phenomenon of pathological lobbying, connected with corruption, and the use of informal connections at the interface between politics and business. The newly created regulation should motivate representatives advocating particular interests to conduct their activities in an open manner in compliance with the law, by means of vesting them with rights and privileges obtained in connection with the undertaking of lobbying activities in a way compliant with the new regulations.

Entities conducting lobbying activities, as defined in the various provisions of the law, should by virtue of the law have guaranteed access to information of interest to them, contact with public officials, the right to participate in consultative conferences, sub-committees and committees of the Polish Parliament and Senate, as well as the right to attend plenary sessions of Parliament. Such privileges ought to balance, if not outweigh, the duties imposed upon the entities conducting lobbying activities and should extend beyond the rights granted to any other entity by virtue of the law.

Need for Lobbyists’ Self-regulation

The Constitution of Poland and the rights stemming from the provisions of the Act on Access to Public Information already provide every Polish citizen with broadly defined rights concerning freedom of information. Only by granting entities performing lobbying activities with relatively wide ranging and distinct privileges will the “grey zone” of activities be weakened, and the “economic viability” of conducting lobbying activities in an open and official manner improved. Provisions going in this direction ought to be reinforced by self-regulation of professional practitioners of lobbying activities. Lobbyists, out of their own self-interest and motivated by the need to gain esteem for their activities and the confidence of the wider public, should be interested in purging existing pathologies and negative connotations associated with “lobbying”. The Act adopted by the Polish Parliament does not meet the assumptions noted above. The only clearly specified right granted to entities conducting professional lobbying activities consists of the entitlement to participate in public hearings, which may not necessarily be organised by the body responsible for the specific draft law.

Social Partners

The Act completely disregards the issue of social partners, whose legitimate entitlement to take part in the law-making process is undisputable and deeply rooted in the Polish system of developing laws. Those bodies, by virtue of the law, participate in the process of consultation on provisions of the law, expressing their opinions and taking actions intended to achieve specific results. Thus, they conduct lobbying activities, but the rights associated with this stem from other regulations. These social partners have demonstrated over the years strong and positive contributions to the process of consulting on laws now enacted. It is not without justified reason that they are regarded as an important and inalienable element of social reality, vital for the proper functioning of the democratic state. Social partners, due to their own mode of conduct of activities should be recognised as entities conducting lobbying without remuneration, and therefore the same Act should reinforce their rights (although in the sphere of duties their social position and motivation should not be considered the same as those entities professionally practicing lobbying).

NGOs

Representatives of non-governmental organisations (NGOs) point out a number of problems connected with the threats to which their activities are exposed by the Act on Lobbying. According to some experts, the distinction between professional and non-professional lobbying activity only theoretically resolved the problem of NGOs, which would not wish to be treated in the same way as commercial lobbyists. NGOs which would like to occasionally lobby in favour of specific legal provisions have not been made subject to any additional registration, control or other requirements stemming from the Act, nor are they covered by the provisions requiring the heads of public offices to facilitate lobbying activities. Theoretically, therefore, NGOs not acting in the capacity of professional lobbyists do not enjoy the right to conduct lobbying activities on the premises of public offices and cannot count on their assistance.

In addition to the fact that the definition of lobbying is considered imperfect ( it very generally defines lobbying as any kind of “activities leading to exertion of influence upon the bodies of public authority in the course of the law-making process”), it might suddenly turn out that the “”soft advocacy of interests,” for example, on the occasion of the work on the Act on Activities for the Public Benefit and Voluntary Activities, might now be included in the scope of professional lobbying activities and might require the hiring of professional lobbyists by non-governmental organisations. There were signs that representatives of non-government organisations were unwelcome at some of the Parliamentary committee meetings and by certain deputies. There were reasons for concern that the Act on Lobbying in the law-making process might provide a pretext for the limitation of the already rather insignificant role of NGOs in the law-making process. Therefore, according to some independent experts, it is hard to determine with any certainty, whether the Act on Lobbying in the law-making process will in the future obstruct or assist these organisations in their dialogue with public institutions.

Role of Social and Business Organisations Needs Clarification

The role of social and business organisations in the context of lobbying activities needs to be defined clearly. The public administration, as well as circles of entrepreneurs, and non-governmental organisations need to each play a part in this clarification. The role of the media in public communications cannot be overestimated in this regard. There is no doubt that lobbying should be absolutely open and transparent, and it should also be subject to social control.

Identification Badges for Increased Transparency

Some experts pointed out that in spite of the existence of a public Register of lobbying firms that in instances of lobbying there may be no clear indication if someone is indeed a lobbyist. It might be necessary to apply the same rules as those already existing in other countries or the European Parliament, for example, the requirement to wear appropriate identification badges.

Ensuring more open and transparent lobbying activities

In spite of a number of critical remarks against the Act on Lobbying in the law-making process, there is no question as to its substantial value and significance for combating corruption and enhancing transparency of activities of public administration. At the present stage, the primary aim is to ensure the efficient functioning of the public administration on the basis of the adopted Act. Ensuring implementation and assessment of its functioning is much more important than any further amendment of existing legal regulations.

Finally, a very positive aspect of the Act merits being underlined: it supports a professional approach to lobbying activities – without creating a closed group and at the same time definitely strengthening the professional community of lobbyists. Thanks to this Act, all the activities based on personal connections and “peculiar” arrangements between the worlds of politics and business ought to be eliminated.

Register of Entities conducting professional lobbying activity

A critical element of the implementation of the new Act was the development of the Register by the Ministry of Administration and Digitization . The Register is regulated by the Act on Lobbying and the Regulation on the Register of entities conducting professional lobbying activity, hereinafter referred to as the “Regulation”. The objective of the Register is to promote transparency of professional lobbying activities and the entities carrying them out.

The Register is public, and the information contained – with the exception of addresses of physical persons -- is available on the Internet site of the Public Information Bulletin of the Ministry of Administration and Digitization . Those entities conducting professional lobbying activities are required to register through an official form. The application can also be submitted in paper form using a computer printout or an official registration form.