Limits of the rights of association and assembly are set out in the Law on Associations but the Constitution states that restrictions are permitted only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons.
The two basic types of non-governmental organisations in Poland are associations and foundations, regulated respectively by the Law on Associations and the Law on Foundations. Associations are membership organisations comprised of natural persons including at least 15 founders and are “voluntary, self-governed and lasting non-profit unions.” Foundations are organisations established “to pursue socially or economically useful objectives that are consonant with the basic interests of the Republic of Poland.” They may be founded by “individuals regardless of their citizenship and domicile, or by legal entities with offices in Poland or abroad.”
Registration is overseen by the judiciary, local courts for associations and the District Court of Warsaw for foundations. Subsequent supervision falls to the government agency most active regarding the activities of an organisation. Refusal of registration is narrowly limited situations where the organisational statues or planned activities are inconsistent with law. Polish law does not limit the ability of foreign NGOs to operate in Poland.
Polish law creates a liberal framework for the purposes and activities of associations. The Law on Associations states that an association “independently sets it goals, creates its programs (…) as well as passes regulations concerning its activities.” In contrast, foundations must “pursue socially or economically useful objectives that are consonant with the basic interests of the Republic of Poland; in particular, such objectives as health protection, advancement of the economy and science, education, literacy, culture, art, social services, environmental protection, and protection of historical landmarks.” The description of purposes and activities in the organisation’s statute is important as work determined to be outside of those provisions may result in restrictions or sanctions.
The Law on Public Benefit Activity and Voluntarism (Law on PBOs) adopted in 2003 provides significant benefits for groups that acquire PBO status by undertaking public benefit activities identified in the law.
NGOs are generally free to engage in political and advocacy activities. Moreover, the Law on PBOs calls for greater cooperation between the government and NGOs on a range of issues and establishes a framework for this to occur.
NGOs may also pursue economic activities as long as all proceeds are only used for statutory purposes. Foundations must have minimum capital if such activities are planned.
Most Polish NGOs are financially dependent upon grant support from a variety of donors, many of which are foreign. The Law on PBOs provides greater incentives to domestic donors. It also recognizes the concept of volunteers and sets out a framework to increase their contribution.
Generally, member contributions, donations, legacies, inheritances, the proceeds of activities, income from property, and public support are exempt from taxation as long as the funds received are used for specified public benefit purposes. Groups that engage in a public benefit activities identified in the Law on PBOs have greater benefits, i.e. they are exempt from corporate income tax, real estate tax, civil actions tax, stamp duty, and court fees “in relation to public benefit activities undertaken.” Generally, contributors to associations and foundations may deduct donations up to 10% of taxes due for charitable, religious, environmental, fire protection and housing investment activities and up to 15% for science, education, culture, sports, rehabilitation, health and social welfare activities. The Law on PBOs provides additional support for PBOs by allowing taxpayers to designate 1% of personal income tax due to PBOs.
The Law on PBOs strengthens requirements for transparency and accountability and standards to guard against conflicts of interest and misuse of assets. It requires PBOs to prepare annual reports and make them “accessible to anyone who is interested. PBOs must also create a “statutory collegiate institution of monitoring or supervision that is separate from the management board and not supervised by the management board as far as internal monitoring or supervision are concerned.”
Other laws do not directly address these concerns adequately. For example, while foundations are required to submit and publish annual reports about activities, associations need not. While Polish law does not address self-regulation by NGOs, the Law on Associations permits the creation of a union of associations. Additionally, the non-profit sector is increasingly taking cooperative steps to address concerns about management and operation.
Local supervisory authorities oversee associations and have the right to inspect documents as well as require the submission of board decisions and other information. If there is reason to believe that an association is not complying with the law or its statute, authorities may order a correction, issue a reprimand, or apply to a court for stronger action. Courts may impose various sanctions from annulling actions to dissolution in the most serious cases. Where a foundation is seen to act in violation of the law or its statutes, the supervisory ministry or the Voivod (county) may order the correction of improper action or if more serious request action by courts for a range of actions, including the appointment of a government administrator. Under the Law on PBOs, supervision of groups with PBO status is centralized. The ministry is to inspect PBOs, and prepare reports to which PBOs must respond in writing. If problems identified are not corrected, the ministry may apply to the registration court to revoke it PBO status or remove the organisation from the State Court Register.
The existence of an organisation may be terminated either voluntarily or involuntarily, with the latter requiring judicial action. Where an association dissolves voluntarily, the members of the board become the liquidators unless its statute provides otherwise. Where it has been determined, after notice and an opportunity to cure, that an association has committed serious violations of law or its statute, it may be judicially dissolved and the court will appoint a liquidator. A foundation’s existence is intended to terminate once it has achieved its stated purpose. If a foundation is determined to have “substantially violate[d] the provisions of laws or of its statute or if they are inconsonant with its purposes,” after notice and an opportunity to cure, a court may suspend the board and appoint a government administrator to take overoperation.
Analysis provided by: Patricia Armstrong, a human rights consultant based in New York.
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