In an act of 14 October 2021 amending the Criminal Code and certain other acts (the “Amendment”) additions have been made to the Public Finances Act of 27 August 2009, introducing a new institution, the Public Register of Agreements, into the Polish legal system. This realizes a proposal that has been made for many years that there should be greater openness and transparency with regard to public finances, and that this should apply not only to expenditure under public procurement laws, but all other expenditure as well.
Article 34 of the Act of 27 August 2009 on Public Finances regulates the issue of open information about use of public funds. Due to the amendment, the list of forms in which the principle of open information about public finances can be observed has been extended to include agreements entered into by public finance sector units. The new institution, a register of these agreements, has been introduced to achieve this. Heads of units will be required to record details of concluded agreements in the new register as of 1 July 2022.
The register of agreements will be kept in the form of an ICT system by the Minister of Finance, and is intended to contain details of agreements entered into by public finance sector units, including public procurement agreements, which may be disclosed under separate provisions on access to public information. Therefore, there will be restrictions on openness of information about agreements, for example to protect confidential information, an individual’s privacy, or commercial secrets, and when important for national security.
Information must be placed in the agreement register about agreements concluded in writing, document form, electronic form, or other special form (such as a notarial deed) if they are of a value exceeding PLN 500, which means that the range of agreements in the register will be very broad. Importantly, the register will not include verbal agreements, even if confirmed by an invoice or bill, which in the author’s view only confirm that a transaction took place but do not specify the nature of the agreement.
The register is intended to state in particular the place and date of conclusion of the agreement, the term of validity of the agreement, details of the parties, the subject matter of the agreement, the value of the agreement, and the source and amount of co-financing of the subject of the agreement, but also quite sensitive information about amendment of the agreement, termination upon mutual consent of the parties, and information about withdrawal, service of notice of termination, or expiry of the agreement. Information about problems encountered during implementation of the agreement will therefore be public. This could be particularly troublesome for a business that has not performed an agreement properly and an institution that entered into an agreement with that unreliable firm.
The register and obligation to place information in the register will take effect as of 1 July 2022, but the obligation to record details of concluded agreements in the register came into effect on 1 January 2022.