Surveillance, Whistleblowing or Ignorance of the GDPR?

The Constitution of the Republic of Poland of 1997

Journal of Laws 1997.78.483 as amended.

Unfortunately, also during the current activities, at the stage of designing and adopting legal standards, it is hard to see that a thorough prior assessment of the effects of the proposed changes, their possible impacts on the legal system, in particular on the scope of civil rights and freedoms, was carried out. It seems that such an evaluation is part of the obligation to demonstrate the necessity of the changes.

Such an assessment is an obligation of the legislator. It must be executed taking into account the principle of proportionality referred to in Art. 31 sec. 3 of the Polish Constitution.

Art. 31 sec. 3 of the Constitution of the Republic of Poland (Journal of Laws 1997.78.483, as amended) states that: ‘Restrictions on the exercise of constitutional freedoms and rights may be established only by statute and only if they are necessary in a democratic state for its security or order public, or for the protection of the environment, public health and morals, or the freedoms and rights of others. These limitations shall not violate the essence of freedoms and rights.’

It is interesting why the authors of the current legal changes also do not seem to notice a certain dependence, that in a democratic state ruled by law, individual well-being cannot be completely marginalised in the context of implementing the principle of social justice. Unfortunately, on the basis of the case analysed further, it can be shown that the principle of social justice is currently most clearly used by project promoters in terms of slogans, contrary to the factors which determine it.

Art. 2 of the Constitution of the Republic of Poland states that: ‘The Republic of Poland is a democratic state ruled by law, implementing the principles of social justice.’

Currently, however, the actions of the Ministry of Family and Social Policy seem to be consciously avoiding the above-mentioned basic principles of creating good quality law – although perhaps they were not considered important enough or they would a priori defeat the goal set by the originator in Art 61a of the Act of June 25, 1999 on cash benefits from social insurance in the event of sickness and maternity.

Journal of Laws 1999.60.636 as amended, hereinafter the Act.

We can thus, unfortunately, speak of an attempt to consolidate the theoretical trend of compliance with the Constitution of the Republic of Poland. The confirmation of this quite extreme thesis may be, inter alia, recent CJEU

Case C-746/18.

As the initiator claims, as part of the need to organise the current functioning of the social insurance system, The Ministry of Family and Social Policy in the draft act amending the act on the social insurance system and some other acts of January 22, 2021,

Draft (rcl.gov.pl) accessed on March 22, 2021.

The construction of the amendment to the provision of Art. 61a of the ACT adds sec. 2 as follows: ‘The Social Insurance Institution (ZUS) may obtain the data and information referred to in para. 1, from the insured, contribution payers, social organisations and other entities and individuals who are in possession of this data and information, and the mentioned individuals and entities are obliged to make them available at the request of the Social Insurance Institution.’ This indicates that the orginator's goal was to provide ZUS officials with a legal instrument that would give them a de facto open scope and subject possibility to obtain any information about people on sick leave – who are under control. The very idea of creating a legal tool to interfere with any freedoms or rights of an individual, with undetermined or even blurred limits of application, raises fundamental constitutional doubts.

The model structure of obtaining source information from ‘other entities and individuals’, as well as the people on sick leave themselves (remaining under control), as a part of so-called ‘inquiry’, which was presented by the Ministry, is burdened with a legal defect, the scope of which means that the actions taken by the Ministry should be considered unsuccessful, even unprofessional. Marginalisation of the constitutional principles, as mentioned at the beginning of this note, as well as procedural law and the law on protection of personal data, is clearly visible. On the other hand, the draft, after a more in-depth analysis, should be considered as an expression of a meticulously thought-out action, which at the same time reflects the low importance that the Ministry attaches to the rights of natural persons granted in the Constitution of the Republic of Poland.

In the current legal situation, it is difficult to find statutory provisions which, without violating the principle of a democratic state and the principle of proportionality, and at the same time in line with the Constitution of the Republic of Poland, would force natural persons and other social and business entities to disclose information collected by these persons, for instance about ‘neighbours’ and their private life (for purposes other than those expected by the Ministry – also against their will) in the name of the superiority of social justice over individual freedom. We also will not find any regulations that would fail to take into account the possibility of exercising the constitutional right to defense.

The adoption of law in the proposed shape and scope will undoubtedly result in a drastic limitation of the constitutional rights of people subject to such control. The effect of limiting the right to defense and not acting to the detriment of relatives will affect both the controlled individuals and other people, including family members of the person who remains under control by ZUS officials.

The amendment to the provision designed by the Ministry imposes an obligation on the natural person and other social and business entities to provide ZUS officials with information about the citizens subject to control. Therefore, it can be assumed that the scope of the obligation imposed on social and business entities is limited to the scope of the documentation about the controlled person held by these entities. On the other hand, the scope of this obligation for a natural person is unlimited (and this is dangerous), as it may also extend to subjectively perceived facts which ‘happened’ only in the opinion of the person obliged to provide the information.

It is also important that with such a legal structure of the draft act, it is difficult to see any possibility of seeking compensation under the Civil Code for infringement of the personal rights of the person subject to control, for instance, as a result of providing ZUS officials with untrue information.

In the draft amendments and in the justification for the act, one does not find a reference to a possible attempt to exclude the application by ZUS of the General Data Protection Regulation 2016/679 (GDPR). Hence, despite the adoption of the changes, ZUS will still be obliged, in accordance with Art. 13, 14 and 15 of the GDPR

Information obligations carried out at various stages of the data processing process.

The inevitable obligation to implement the directive on whistleblowers forces the Polish legislator to define a new form of possible protection for people who, in the name of the public interest, will report violations of the law. In the case of such a scenario, it becomes possible that the authors of the act implementing the directive recognise ‘other entities and natural persons’ providing information to ZUS officials about people on sick leave, as so-called whistleblowers whose anonymity should be guaranteed. Then it may turn out that not until the case is brought to trial will the person on sick leave meet their denunciator.

Thus, if the designed model of obtaining information was adopted by ZUS officials, this change could equip ZUS with a tool that even law enforcement agencies could envy – it is commonly known that they carry out most of their tasks implicitly, without the consent and knowledge of people interested personally. In other words, the draft act amending the act on the social insurance system and some other acts of January 22, 2021, with regard to the proposed changes to the content of Art. 61a of the Act of June 25, 1999 on cash benefits from social insurance in the event of sickness and maternity,

Journal of Laws 1999. 60.636 as amended.

As part of an additional analysis of the act, it becomes reasonable to ask about the convergence of the assumed changes with the content of the application submitted to the Constitutional Tribunal for a declaration of non-compliance of the provision of Article 168b of the Code of Criminal Procedure

Article of 168b of the Act of 6 June 1997 Code of Criminal Procedure (c.t. Journal of Laws 2021.534 as amended) states: “If, as a result of an operational control ordered by a competent authority in accordance with special regulations, evidence was obtained that a person, against whom the control was ordered, had committed an offence prosecuted ex officio or a fiscal offence other than the offence, against which the control was directed, or that such offence was committed by another person, the public prosecutor decides whether this evidence will be used in criminal proceedings.

Without, inter alia, specification of the subjective circle of people obliged to provide information about a person subject to inspection (or excluded from this obligation), it is difficult to conclude that the scope of amendments to the act proposed by the Ministry is consistent with the Constitution of the Republic of Poland. The draft in its present scope clearly violates the principles of: nullum crimen sine lege and nullum crimen sine lege certa, as well as in dubio pro tributario, which are basic measures of human rights protection and models of maintaining standards in the state of law, guaranteed, among others in Art. 42 sec. 3 of the Polish Constitution, as well as firmly embedded in the principle of a democratic state ruled by law.

Cf the judgment of the Constitutional Tribunal of May 25, 2004, file ref. no. SK.

The wide public discussion

https://serwisy.gazetaprawna.pl/emerytury-i-renty/artykuly/8122059,zus-dane-osobowe-ustalenie-prawa-do-zasilku.html.

The final wording of Art. 61a of the ACT,

C.t. Journal of Laws 2021. 1133, 1621, 1834.