The sky's the limit
Those who have worked for state firms can be summoned, no matter what role or level of seniority they held. This includes former managers from these companies from before 2015 when Tusk was president, as well as members of supervisory boards. But it doesn't end there. The new Commission searches for Russian influence beyond that of public officials, or of companies that are controlled by the state treasury.
These influences have specifically been written to have a broad reach, which may come to effect:
- mass media
- spreading false information (intended or not)
- activities of associations or foundations
- activities of trade unions, unions, or employers’ organizations
- the functioning of critical infrastructure
- the functioning of political parties
- organizations in the healthcare system, in particular with relation to the fight against infectious disease
- border controls
“This means that ‘the sky's the limit’ when it comes to these investigations, because the Commission will effectively be able to summon anyone who, regardless of their professional activity, critically assessed the government's policy,” professor Romanowski said.
Find me a person, and I can find you a paragraph against him within this new measure
This includes those criticisms which were made during the COVID-19 pandemic — by managers and members of private supervisory boards, but also by trade union activists, representatives of private employers’ organizations, opposition party politicians, and representatives of organizations helping refugees on the Polish border with Belarus
“Find me a person, and I can find you a paragraph against him within this new measure,” Romanowski said.
What information will the new commission have access to?
It is one thing that members of this new Commission are given the right to investigate and question. What is absolutely unprecedented is the access to information that they'll be granted.
Article 31 of the new law gives Commissioners an exemption from the otherwise binding obligation to keep “secrets protected by law”. This means that company secrets, including those about their business model, contractors, or terms of cooperation, may be disclosed to the public.
“One of the most consequential parts of this is its potential to impact the ability of Polish firms that compete on the international scale — especially in domains such as IT or the chemical market”, explained Dr. Antony Kolek, an expert from Employers of Poland, who analyzed the capacity of the new “lex Tusk” to impact business interests.
This is all being done without the oversight of the Courts. “Judicial control is only expected to be applied to protect the confidentiality of attorneys, legal advisors, medical professionals, and journalists,” Romanowski said. But “this protection will be meaningless, because Article 32 of the Act provides a loophole, in which information that is deemed important to the internal security of the Republic of Poland can be accessed by the Commission.”
The entire Polish state apparatus— including the heads of the Internal Security Agency, the Foreign Security Agency, the Military Counterintelligence Service, the Military Intelligence Service, the Central Anti-Corruption Bureau, the prosecutor general, prosecutors, the president of the Supreme Audit Office, the first president of the Supreme Court, the president of the Supreme Administrative Court, as well as the state-owned companies —is to provide Commissioners with an insight into everything they wish.
Commissioners will also have the right to demand such information from private individuals- including lawyers, accountants, notaries, and financial advisors.
“This is the end of the defense of freedom, of human rights, and of the rights of Polish citizens," Romanowski concludes. "It is also a threat to the country’s business interests. I have been warning for a long time that the creeping presence of authoritarianism and its tools will lead to a gradual removal of freedom, until it disappears altogether.”
Bad for business
The new regulations have been purposefully constructed to be unclear. That way, they can become a catch-all for whatever the Commission decides to undertake.
“The law does not define what constitutes acting on Russia’s behalf, or being influenced by Russian interests”, Hinc said. “Is buying raw materials from Russia a crime, or is it operating a plant in Russia? Or a branch of the company? Does this apply only to Polish entrepreneurs acting on their own behalf, or to those working under a larger company’s eye? Will the sanctions address the heads of companies who only engaged with Russia at the request of their parent companies?”
In this climate, no business can feel safe.
“The Commission may revoke or annul any administrative decision, or it if it considers that it was issued under Russian influence to the detriment of the interests of the Republic of Poland. Thus, the committee may conclude that decisions concerning tenders, concessions, permits, entries in regulated activity registers may be repealed or declared invalid,” said Dr. Antony Kolek, “this can be very painful for entrepreneurs, because it means that they lose the right to conduct a specific activity or lose their contracts entirely”.
Any complaint to the administrative court does not suspend the execution of the Commission’s decision, so whatever the Commission decides will be enforceable even before the appeal, and before the complaint is examined by the administrative court.
“The administrative court will only be able to rule on whether the Commission's decision was made in accordance with the law, whether the procedure was followed, etc," Hinc explained. "But not on whether the person actually made decisions under Russian influence or whether he knowingly acted to the detriment of Poland's interests.”
Romanowski believes that President Duda is well aware that he has broken with the nation's Constitution, and has thus that betrayed the oath of office he made to the Polish people. “Duda says that the ‘innocent have nothing to fear,’” he added, “But this is an old argument made by autocrats who want everyone — including the innocent— to be afraid. That is ultimately how authoritarian leaders seek to gain power and stability.”
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