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The status of a tax bearer assigned to the employer for whom a worker performs work on the basis of a work contract under the Polish Civil Code, entered into between the said worker and a third party K 15/16

Ref. No. K 15/16

JUDGMENT
IN THE NAME OF THE REPUBLIC OF POLAND

Warsaw, 13 May 2021

The Constitutional Tribunal, composed of:

Julia Przyłębska – Presiding Judge
Mariusz Muszyński
Justyn Piskorski
Jakub Stelina – Judge Rapporteur
Michał Warciński,

having considered, at a sitting in camera on 13 May 2021 – in accordance with Article 92(1)(1) of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal (Journal of Laws – Dz. U. of 2019, item 2393) – the joined applications submitted by:

1) the President of the Polish Business Organisation –‘Konfederacja Lewiatan’, for the Tribunal to consider the conformity of:

Article 8(2a) in fine of the Act of 13 October 1998 on the Social Insurance System (Journal of Laws – Dz. U. of 2015, item 121, as amended) – in the version including the wording “and/or as part of such a contract, s/he performs work for the employer on the basis of an employment relationship with that employer” in conjunction with Article 18(1a) as well as in conjunction with Article 4(2)(a), Article 16(1)(1) Article 16(1b) and Article 16(2) and (3), Article 17(1) and (2) of the said Act, Article 66(1)(1)(a), Article 81(1), Article 85(1) of the Act of 27 August 2004 on Publicly Financed Healthcare Services (Journal of Laws – Dz. U. of 2015 item 581, as amended), Article 104(1)(1)(a) of the Act of 20 April 2004 on the Promotion of Employment and the Institutions of the Labour Market (Journal of Laws – Dz. U. of 2015 item 149, as amended), Article 9, Article 10, Article 28(1) and Article 29(1) of the Act of 13 July 2006 on the Protection of Workers’ Legal Claims in the Event of the Employer’s Insolvency (Journal of Laws – Dz. U. of 2014 item 272, as amended), Article 2(2) and (3), Article 36(2) and (4) as well as Article 37(1) of the Act of 19 December 2008 on the so-called old-age bridging pensions (Journal of Laws – Dz. U. of 2015 item 965, as amended):

– to Article 20 in conjunction with Article 22, in conjunction with Article 31(3), in conjunction with Article 64(1) and (3) as well as in conjunction with Article 2 of the Constitution;

– to Article 2 and Article 51(1) of the Constitution;

2) the Organisation of Employers in Poland (Pol. Pracodawcy Rzeczpospolitej Polskiej), for the Tribunal to consider the conformity of:

a) Article 8(2a) of the Act on the Social Insurance System, referred to in point 1, with reference to the phrase “and/or as part of such a contract, s/he performs work for the employer on the basis of an employment relationship with that employer” to the principle of appropriate legislation, derived from Article 2 of the Constitution,

b) Article 8(2a) in conjunction Article 9(1) and (4b), Article 16(1)(1) Article 16(1b) and Article 16(3), Article 17(1) and (2) and Article 18(1a) of the Act on the Social Insurance System, referred to in point 1 – insofar as, with regard to the employer hiring a person who performs work on the basis of a contract of agency, a contract of mandate, and/or other contracts for services to which provisions on mandate apply under the Polish Civil Code or a project contract, entered into between the said worker and a third party, if the said worker performs work for the said employer on the basis of an employment relationship with that employer, the indicated provisions impose the obligation on the said employer to calculate, settle, and transfer to the Social Insurance Institution monthly insurance premiums for old-age pension and disability insurance, accident insurance, and sickness insurance, taking account of income generated by the said worker on the basis of one of the aforementioned contracts with a different party than the employer on whom the said obligation is imposed, provided that the said contract is the basis for the worker’s performance of work for the said employer – to Article 22 in conjunction with Article 31(3) of the Constitution

adjudicates as follows:

Article 8(2a) of the Act of 13 October 1998 on the Social Insurance System (Journal of Laws – Dz. U. of 2021 items 423, 432 and 619) – in the part comprising the phrase “and/or as part of such a contract, s/he performs work for the employer on the basis of an employment relationship with that employer” – is consistent with the principle of appropriate legislation, derived from Article 2 of the Constitution of the Republic of Poland.

Moreover, the Tribunal decides:

to discontinue the proceedings as to the remainder.

The ruling was unanimous.

 

Julia Przyłębska
Mariusz Muszyński
Justyn Piskorski
Jakub Stelina
Michał Warciński