Ministry of National Defense may take over business decisions in certain companies
The Polish Ministry of National Defense (“MND”) submitted a bill on organisation of tasks for the sake of national security and defense, to be performed by entrepreneurs. Based on the regulations, certain companies may be obliged to act under instructions given by the MND (issued by way of an administrative decision).
Scope of the bill
The bill defines, without limitation:
- the tasks to be mandatorily performed by entrepreneurs at the request of the MND,
- the rules of financing the tasks commissioned to entrepreneurs,
- the requirements and rules for inclusion and striking off entrepreneurs from the list of entrepreneurs of particular importance for the economy and defense.
According to the bill, only an entrepreneur having production, repair or service capacities which may be used to perform tasks within the scope of economic mobilisation can actually perform tasks for the sake of national security and defense.
Which companies will be subject to the new regulations?
An entrepreneur of particular importance for the economy and defense can be, without limitation, an entrepreneur who fulfils the above condition and who operates within an area of more than one province (PL: województwo) or who operates a business in crucial sectors of the economy such as, among others: electricity generation, transport, food production, TV broadcasting, supply of telecommunication networks, production of chemicals, etc. For a detailed list of sectors to which the bill applies see the end of the message.
The obligation to get prior consent from the MND for selected business operations
Entities included in the list of entrepreneurs who perform tasks for the sake of national security and defense will be obliged to apply to the competent authority for consent to undertake a legal action/transaction intended to:
- dissolve or liquidate the enterprise;
- relocate the registered office of the entrepreneur abroad;
- repeal an object of business which involves performance of tasks for the sake of national security and defense;
- sell, donate, change the intended purpose, or abandon the use/operation of an asset of the entrepreneur, which is used to perform tasks for the sake of national security and defense.
Tasks to be performed at the MND’s request
The tasks for the sake of the national security and defense to be performed by entrepreneurs shall include, without limitation:
- production, repair or services for the sake of national security and defense in conditions where the national security is at risk, and during the war,
- manufacturing or distribution of medicinal products, foods for special dietary purposes, biocidal products, medical devices, personal protection equipment, medical equipment or medical apparatus for the purpose of prevention and combating infections and infectious diseases in situations where human health or life is at risk.
- maintaining production, repair or service capacities;
- ensuring continuity of decision and information exchange between the competent government administration body and the entrepreneur;
- preparation of the entrepreneur for operation in conditions of external threats to the national security and during a war;
- protection of critical infrastructure, etc.;
How can we help?
Andersen may help determine:
- whether the new regulations apply to your company,
- what business operations should be carried out before the bill takes effect,
- how to prepare your company for the new regulations,
- what to do to limit exposure of your company to being commissioned tasks by the MND,
- the scope of compensation which may be demanded in case your company is obliged to act under the MND’s instructions.
Which companies may be affected by the bill?
The bill applies to companies which are engaged in the following business activities:
a. airport management, operation of seaports and other facilities of particular importance for national security and defense, including military facilities, as well as their design, construction, alteration, reconstruction; storage, collection and maintenance of items required to perform such tasks,
c. radio and TV broadcasting,
d. production, transport and storage of crude oil and petroleum products;
e. production, warehousing or trade in explosives, weapons, munition as well products and technologies intended for military or police use,
f. transport, including design, construction, alteration, repair and maintenance of transport infrastructure, and making it available for the purpose of national security and defense,
g. food production,
h. provision of public services referred to in the Act of 23 November 2012 – Postal Law (JoL of 2020 Items 1041 and 2320),
i. provision of telecommunications networks or telecommunications services,
j. production, distribution and transmission of natural gas, liquid fuels and electricity,
k. manufacturing or distribution of medicinal products, foods for special dietary purposes, biocidal products, medical devices, personal protection equipment, medical equipment or medical apparatus,
l. extraction and safeguarding extraction from ores, as well as extraction, safeguarding extraction and processing of metal ores used for production of explosives, weapons, munition, as well as products and technologies of military and police use,
m. production, repair, upgrade and maintenance of military equipment, motor vehicles and means of land, water and air transport,
n. production of chemicals,
o. map making, including topographic maps, general geographic maps, thematic and special maps,
p. computerisation, including digital infrastructure for provision of domain name system services, maintenance of internet exchange points and maintenance of top level domain name registers,
q. supply of drinking water and water distribution, with the exclusion of distributors for whom water for human consumption is only part of their overall activity which consists of other products and goods not classified as key services,
r. protection of people and property.