Warsaw, 22nd January 2020
Commentary by the Union of Entrepreneurs and Employers regarding the notification
obligation concerning the draft act on the amendment of certain acts in connection with
promotion of healthy consumer choices
The draft act on the amendment of certain acts in connection with the promotion of healthy consumer choices appeared on the website of the Government Legislation Centre at the end of December 2019 and sparked an understandable stir in entrepreneurial circles. First of all, the draft assumes the introduction of a new tax (erroneously therein referred to as “the fee”) on the sale of drinks sweetened with sugar or other sweeteners – beginning in April 2020 – not from 2022 onwards as previously announced in the National Oncological Strategy. Haste in the manner how the draft act is being proceeded, apart from the fact that it is unacceptable from the point of view of the basic rules of honest public consultations, may have very serious consequences of a different nature. The Polish legislator completely fails to recognise the fact that the proposed legal provisions may constitute technical regulations subject to the obligation to notify the European Commission.
In accordance with Art. 1 section f subsection III of the Directive 2015/1535 of the European Parliament and of the Council of 9th September 2015 establishing the procedure for the provision of information in the field of technical regulations and rules on information society services, the technical regulations de facto encompass technical specifications or other requirements or rules on services that are associated with fiscal or financial measures affecting the consumption of products or services by enforcing compliance with such technical specifications or other requirements or rules on services. Art. 5 of the Directive provides that member states shall immediately submit to the Commission all draft technical regulations, with the exception of those which fully transpose an international or European standard.
The proposed provisions contain specifications (sugar / sweeteners / active substances content) associated with fiscal measures (tax), which, according to legislators, are to have an impact on the consumption of products (sweetened drinks / beverages containing active substances). Therefore, these provisions meet all the prerequisites for being considered technical regulations subject to the notification obligation. This is further confirmed by the fact that the governments of Estonia or Ireland did notify the European Commission about similar regulations.
The Directive does not explicitly determine specific sanctions arising from violation of the obligation to notify on technical regulations. However, the jurisdiction of the Court of Justice of the European Union states that failure to notify may result in ineffectiveness of regulations against natural persons. The practical consequences of such an outcome in the case of notification absence of the provisions introducing the “sugar tax” in Poland are difficult to predict.
The Union of Entrepreneurs and Employers emphasises its negative attitude towards the discussed regulation. However, apart from its substantive content, the unusually fast pace of the legislative process may impact negatively not only the quality of the regulations, but also the implementation of obligations incumbent on Poland as a member state of the European Union. We urge the legislator to consider and re-examine the project in terms of the necessity to inform the European Commission.