The dynamic development of artificial intelligence-based technologies is revolutionizing not only the commercial sector but also the area of state oversight of the digital market. The implementation of multi-agent systems by the Office of Competition and Consumer Protection (UOKiK) opens a new era in consumer rights enforcement, enabling the mass and automated identification of unfair market practices. With the Digital Services Act (DSA) and the Omnibus Directive in force, traditional control methods are giving way to algorithmic interface analysis aimed at eliminating so-called dark patterns and price manipulation. However, the use of “digital controllers” raises fundamental questions for legal science and business practice about the limits of automated decision-making processes in public administration. Although AI agents significantly improve the effectiveness of detecting violations, their legal status as a source of evidence remains the subject of heated debate. The main thesis is that while AI can be a powerful auxiliary tool for regulatory bodies, the ultimate responsibility for determining the facts and assessing the legitimate interests of a party must rest with humans, which is the foundation of a fair procedure in a state governed by the rule of law.

Dark Patterns: Legal and Ethical Aspects of Prohibiting Manipulation in Digital Interfaces

A key obligation of internet platform providers in light of modern regulations is to design interfaces in a transparent and ethical manner. The prohibition of manipulation, formulated, among others, in the Digital Services Act (Article 25), directly affects the structure of so-called deceptive interfaces (dark patterns). Websites and applications cannot be designed in a way that limits the recipient’s cognitive autonomy, interferes with their ability to rationally assess the situation, or forces them to make a purchasing decision that they would not have made under other circumstances.

One of the most glaring examples of such violations is the asymmetry in the contract conclusion and termination process, particularly evident in subscription models. This mechanism relies on extreme simplification of the purchase path while simultaneously mounting procedural barriers when attempting to cancel the service. Visual techniques are used here, among other things: payment activation buttons are highlighted with bright colors and a central location, while contract termination options are deliberately hidden at the bottom of the page, written in small font or masked with colors that blend with the background. Furthermore, canceling a subscription on online platforms often requires multiple selections or confirmation of the desire to cancel, despite the consumer’s prior explicit choice. Artificial intelligence algorithms, analyzing the page structure and visual hierarchy of elements, can pinpoint these disparities with mathematical precision, creating a list of violations that serves as hard evidence.

In the context of the Omnibus Directive, the obligation to disclose the lowest price 30 days before the discount has become a market standard, but its implementation is open to abuse. The practice of “empty promotions” involves artificially inflating the base price just before a planned discount or providing a false reference amount. In this area, AI agents demonstrate particular effectiveness, acting as real-time monitoring systems; they can archive the price history of each product, creating an independent database. Comparing this information with the entrepreneur’s declaration visible on the website allows for immediate detection of manipulation of the promotional algorithm.

An equally important area of control is the phenomenon of drip pricing , or hiding the real costs of a transaction until the final stage of the shopping cart. Businesses often employ a “decoy” strategy, presenting an attractive unit price, which, at the time of order finalization, is increased by mandatory, previously undisclosed costs, such as service fees, packaging costs, or payment processing fees. Pursuant to Article 12 of the Consumer Rights Act, businesses are obligated to clearly and understandably inform consumers about, among other things, the total price for the proposed service. Automated control systems are capable of conducting a full simulation of the purchasing process, from product selection to the payment gateway. Any discrepancy between the price presented in the product list and the amount required to complete the contract is reported by AI as an attempt to circumvent disclosure obligations and a direct violation of the collective interests of consumers.

According to Article 5 of the Act on Combating Unfair Market Practices, the key criterion for assessing a trader’s behavior is the impact of their actions on the recipient’s decision-making process. A market practice is considered misleading if “this action in any way causes or is likely to cause the average consumer to make a transactional decision that they would not otherwise have made”. The legislator specifies that both “spreading false information” and “spreading true information in a manner that is likely to be misleading” can constitute an infringement. In the digital environment, these manipulations most often focus on the “existence of a product, its type, or availability.” A common method of exerting unjustified pressure on consumers is the use of social proof mechanisms and an artificial sense of scarcity. This manifests itself in messages such as: “this product is now being viewed by x people,” “x items have already been purchased today,” or displaying timers indicating that “only 30 minutes left until the end of the promotion.” Particularly problematic from the perspective of trade ethics is the use of so-called false advertising. Timers – clocks counting down to the finale of a supposedly unique price opportunity. In reality, these are fake mechanisms, as after the specified deadline, the offer remains active and the product price remains unchanged or becomes even more favorable. This type of activity, a classic example of dark patterns, is designed to induce fear of missing out (FOMO) in customers and induce them to rush into a transaction. Using AI agents allows regulators to serially monitor such counters and prove their cyclical recurrence, providing direct evidence of deceptive practices.

The algorithm as a controller

With millions of transactions taking place across the country in just a few minutes or hours, standard order verification procedures prove insufficient to effectively fulfill the statutory responsibilities of supervisory authorities. Technological advancements in the form of AI algorithms come to the rescue. These algorithms can automatically monitor numerous commercial transactions simultaneously, generating preliminary opinions that are ultimately subject to human review. Such systems not only save significant processing time but, above all, enable oversight of a much broader range of businesses and their online platforms. The AI multi-agents used in this process are virtual “consumer robots” capable of mass-auditing e-commerce websites, simulating the natural behavior of online users to detect irregularities that a human controller would be unable to detect on such a large scale.

To conduct reliable and effective inspections, Polish law already offers supervisory authorities a toolkit in the form of the “mystery shopper” institution. Traditionally, this involves a person unrelated to the inspected company or the inspecting authority making a purchase and then completing a survey regarding specific activities they observe during standard shopping. The implementation of AI technology by the Office of Competition and Consumer Protection (UOKiK) aims to entrust AI multi-agents with the role of such digital “mystery shoppers.” Their task is to interact with the website interface, add a product to the cart, and complete the entire purchasing process without disclosing that this activity is being performed by an algorithm or that it is part of an official inspection procedure. This approach allows for direct verification of whether the entrepreneur is not using prohibited manipulative practices, known as dark patterns. However, it should be emphasized that the activity of AI multi-agents is strictly regulated by legal procedures and cannot be arbitrary. The algorithm operates under the strict supervision of the President of the Office of Competition and Consumer Protection, who, pursuant to Article 105ia of the Act on Competition and Consumer Protection, must always obtain prior consent from the Court of Competition and Consumer Protection. This mechanism serves as a key safeguard against abuse of power. Furthermore, after completing the inspection, the office is obligated to immediately provide the entrepreneur with an official ID and authorization for the inspection. In the age of digital administration, this obligation can be fulfilled electronically immediately after the AI multi-agents withdraw from the sales platform.

The key legal framework for the operation of algorithms commissioned by the regulator is provided by the EU AI Act. According to its provisions, AI systems used by public authorities for control and supervisory purposes should be considered high-risk AI systems. This entails a strict requirement to design them with appropriate transparency, which allows both the controlling and the controlled entities to properly interpret the system’s results and use them fairly. In practice, this means that algorithms must be built in an “explainable” model. A business subject to allegations based on an algorithmic audit has the statutory right to request full insight into the operation of AI tools. This transparency is essential for the controlled entity to understand the basis and criteria on which the authority deemed its online platform unfair or infringing on the collective interests of consumers (Article 24). This balance between the effectiveness of digital supervision and the right to defense is the foundation of a modern rule of law in the age of algorithms.

The opinion of AI multi-agents as evidence in the case

After completing the inspection activities on the entrepreneur’s online platform, the AI algorithm’s role evolves towards an analytical function, consisting of preparing an opinion indicating detected violations. In the context of potential proceedings against an entity employing unfair market practices, the admissibility of using such an analysis as valid evidence becomes a key issue. Pursuant to Article 7 of the Code of Administrative Procedure (hereinafter referred to as the Code of Administrative Procedure), which establishes the principle of objective truth, a public administration body is obligated to take all steps necessary to thoroughly clarify the factual circumstances. This obligation is consistent with Article 75 § 1 of the Code of Administrative Procedure, which introduces an open catalog of evidence, allowing as evidence anything that may contribute to the clarification of the case, provided it is not contrary to the law.

Under these regulations, the results of AI multi-agent work – taking the form of reports, opinions, or analyses generated after conducting an audit with court approval – fully fall within the statutory definition of evidence. However, it should be clearly stated that an AI opinion cannot be equated with an expert opinion within the meaning of Article 84 of the Code of Administrative Procedure. This stems from the fact that an algorithm does not possess the status of a natural person equipped with specialized knowledge, which is a statutory requirement for appointing an expert. Instead, documentation generated by an AI agent should be classified as a private document or so-called “unnamed evidence.”

Practical justification for this position can be found in the case law concerning digital evidence. The judgment of the Court of Appeal in Szczecin of September 19, 2016, I ACa 364/15, LEX no. 2147337 aptly describes this issue, pointing out that evidence in a case may include official and private documents, but also means other than those listed in Articles 305-308 of the Code of Civil Procedure. Electronic evidence, currently increasingly used in civil proceedings, is not explicitly listed in the catalog of means of evidence. However, the Code of Civil Procedure does not contain a closed list of evidence sources; anything relevant to the case may constitute evidence. Although the above ruling was issued in the context of civil procedure, due to the identical approach to the openness of the evidence system, it remains fully applicable to administrative proceedings conducted by the President of the Office of Competition and Consumer Protection.

The key element of algorithmic evidence remains the human factor, which serves as a primary safeguard over the autonomous operation of technology. It’s important to note that AI multi-agents, despite their high sophistication, operate based on statistical probability models, which carries the risk of misinterpreting dynamic website elements. For example, the system may incorrectly classify a standard technical error as intentional dark web activity. patterns or misinterpret the interface’s intentions in a specific cultural or linguistic context. Therefore, opinions generated by AI agents cannot constitute a standalone and final basis for a decision, but should be subjected to thorough, critical review by an official. Only such a comparison of the “raw” algorithmic result with human knowledge and experience allows for avoiding errors that could lead to unjustified penalties. This approach is directly supported by Article 80 of the Code of Administrative Procedure, according to which a public administration body assesses whether a given circumstance has been proven based on the entirety of the evidence. In this process, the “AI opinion” is only one of many components that must be weighed against other evidence and evaluated through the prism of principles of logic and life experience, ultimately guaranteeing the implementation of the principle of objective truth and protecting the entrepreneur from the automaticity of decisions made by the algorithm.

Summary

Multi-agent system implemented by the Office of Competition and Consumer Protection for automatic control of the e-commerce sector poses a significant challenge for entrepreneurs, forcing strict compliance with regulations regarding dark patterns, price transparency (Omnibus Directive, Art. 6a) and information obligations (Consumer Rights Act, Art. 12). These tools are used to mass detect manipulative practices such as drip pricing, fake timers or making it difficult to unsubscribe. Although AI agents perform a function similar to “mystery shoppers,” their activity must meet the rigors of Article 105ia of the Act on Competition and Consumer Protection, including the requirement to obtain court consent for a controlled purchase. What is crucial from a procedural perspective is that the findings made by the algorithm do not have the status of an expert opinion within the meaning of Article 84 of the Code of Administrative Procedure (lack of the status of a natural person with specialist knowledge), but constitute only a private document or “other evidence” subject to the authority’s free assessment (Article 80 of the Code of Administrative Procedure).

Consequently, the official is required to subject AI reports to thorough human review to eliminate the risk of misclassification resulting from so-called “AI hallucinations” or technical errors in the interpretation of the website’s code. The entrepreneur has full rights of defense based on the principle of active participation of the party (Article 10 of the Code of Administrative Procedure) and the principle of objective truth (Article 7 of the Code of Administrative Procedure), which means the right to question the bot’s logic and to access the instructions and parameters of the AI system, in accordance with the “explainability” requirement enshrined in the AI Act (Article 13). Any decision based solely on the automated generation of conclusions, without providing the party with an opportunity to comment on the evidence (Article 81 of the Code of Administrative Procedure), constitutes a gross violation of administrative procedure and may constitute an effective basis for challenging the authority’s decision.

Sources:

Regulation 2022/2065 on the single market for digital services and amending Directive 2000/31/EC (Digital Services Act) (OJ EU L 277, 2022, No. 277, p. 1, as amended).

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules (OJ L 328, 2019, p. 7, as amended).

Act of 30 May 2014 on consumer rights (consolidated text: Journal of Laws of 2024, item 1796, as amended).

Act of 23 August 2007 on counteracting unfair market practices (consolidated text: Journal of Laws of 2023, item 845).

Act of 16 February 2007 on competition and consumer protection (consolidated text: Journal of Laws of 2025, item 1714).

Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence and amending Regulations (EC) No 300/2008, (EU) No 167/2013, (EU) No 168/2013, (EU) 2018/858, (EU) 2018/1139 and (EU) 2019/2144 and Directives 2014/90/EU, (EU) 2016/797 and (EU) 2020/1828 (Artificial Intelligence Act) Text with EEA relevance (OJ L 1689, 2024).

Act of 14 June 1960, the Code of Administrative Procedure (consolidated text: Journal of Laws of 2025, item 1691).

Judgment of the Court of Appeal in Szczecin of 19 September 2016, I ACa 364/15, LEX no. 2147337.

Artykuł Multi-agent system in the service of the Polish Office of Competition and Consumer Protection – a new era of e-commerce control and the limits pochodzi z serwisu KIELTYKA GLADKOWSKI LEGAL | CROSS BORDER POLISH LAW FIRM RANKED IN THE LEGAL 500 EMEA SINCE 2019.

The Polish dietary supplements market is facing the most significant regulatory overhaul in years. The draft amendment to the Act on Food and Nutrition Safety and the Act on the State Sanitary Inspectorate introduces a series of far-reaching changes that will substantially alter the way supplements are notified, monitored, advertised, and supervised in Poland. While the reform does not formally introduce a pre-market authorization system, it undeniably strengthens the position of regulatory authorities and increases the compliance burden imposed on businesses operating in the sector.

The amendment, expected to enter into force six months after publication, reflects both domestic concerns regarding the rapid expansion of the supplements market and the broader European trend toward stricter food safety oversight. For manufacturers, importers, distributors, and marketing agencies, the proposed changes may require a complete reassessment of internal procedures, legal risk management, and commercial strategy.

The reform arrives at a time when the Polish dietary supplements market continues to expand at an exceptional pace. Poland has become one of the largest supplement consumers in the European Union, both in terms of total market value and per capita spending. According to market estimates, the sector exceeded PLN 7 billion in value in 2024 and is expected to continue growing steadily over the coming years. The scale of the market alone has become a challenge for regulators. Between 2017 and 2020, more than 62,000 supplement notifications were submitted to the Chief Sanitary Inspectorate (GIS), while the number of products listed in official registers exceeded 29,000.

At the same time, authorities increasingly pointed to systemic weaknesses in the existing framework. Under the current rules, a business may place a dietary supplement on the market immediately after submitting a notification to GIS, even if doubts exist regarding the product’s composition or classification. The authorities may initiate explanatory proceedings, but the product can still remain commercially available during the investigation. In practice, this system has often been criticized for providing insufficient preventive control and allowing potentially problematic products to circulate before any meaningful assessment takes place.

Another major concern involved the widespread use of aggressive advertising strategies. For years, the dietary supplements industry has been accused of blurring the line between supplements and medicinal products. Many advertisements indirectly suggested therapeutic effects or implied that supplements could substitute proper medical treatment or balanced nutrition. Regulators and pharmaceutical companies repeatedly argued that existing penalties were too low to deter large market participants from engaging in questionable promotional practices.

The lack of a centralized digital supervision system also contributed to inefficiencies. The notification process relied partly on outdated administrative mechanisms, resulting in difficulties with document verification, inconsistent communication, and lengthy proceedings. The new amendment seeks to address these concerns through digitalization, stricter procedural obligations, and substantially higher financial sanctions.

One of the most visible changes introduced by the reform is the mandatory use of the e-Sanepid platform for all supplement notifications. Until now, notifications could be submitted either electronically or in paper form, and businesses had some flexibility regarding the form and timing of submission. Under the new rules, however, the process becomes fully digitized. Notifications will only be accepted through the e-Sanepid system and will require either a qualified electronic signature or a trusted electronic profile.

This change may appear largely technical at first glance, but in reality it significantly increases the formalization of the entire notification process. For large companies with developed compliance departments, adapting to electronic communication systems is unlikely to create serious difficulties. Smaller businesses, however, may face operational and financial challenges connected with digital authentication tools, procedural monitoring, and document management requirements.

The amendment also changes the moment at which the notification obligation arises. Previously, the law referred both to products already introduced to the market and those merely intended for future introduction. The new wording removes the reference to “intended introduction,” meaning that the obligation will arise only once the product is actually being placed on the market. Although this clarification simplifies the legal interpretation of the obligation, it also narrows the flexibility businesses previously enjoyed when planning product launches.

Perhaps the most consequential aspect of the reform concerns explanatory proceedings and scientific opinions. Under the current framework, businesses could effectively delay proceedings indefinitely by postponing the submission of required scientific documentation. While the law imposed certain deadlines on the authorities themselves, it did not establish sufficiently strict obligations for the notifying entity. This created situations where proceedings remained unresolved for years, significantly limiting the effectiveness of supervision.

The amendment introduces a much stricter procedural regime. Once GIS requests a scientific opinion regarding a product’s classification or compliance, the business will have only 14 days to submit an application to a scientific institution or to the President of the Office for Registration of Medicinal Products. Furthermore, the scientific opinion itself must generally be issued within six months, with an absolute maximum period of twelve months in exceptional cases.

The most significant innovation is the introduction of a legal presumption against the entrepreneur. If the entity fails to submit the application for an opinion within the required 14-day period, the law will automatically presume that the proposed classification of the product is incorrect and that the product does not meet the requirements applicable to its category. In practical terms, procedural inactivity itself may lead to negative legal consequences.

This fundamentally changes the balance between businesses and regulatory authorities. Previously, delaying the process often worked in favor of companies by allowing products to remain on the market while proceedings continued. Under the new rules, inaction may immediately weaken the entrepreneur’s legal position. Businesses will therefore need to implement much stricter internal monitoring systems to ensure compliance with procedural deadlines.

The amendment additionally prohibits businesses from circumventing the procedure by repeatedly submitting notifications for identical products. Once proceedings are initiated, companies will no longer be able to submit another notification concerning a product with the same qualitative and quantitative composition. Similarly, withdrawing a notification will not allow the entrepreneur to restart the process with the same formula at a later stage. These restrictions are intended to eliminate procedural abuse and prevent companies from avoiding regulatory scrutiny through repeated filings.

Another major reform concerns transparency and the expansion of the public product register maintained within the SEPIS system. The current register already contains certain information regarding notified products, but the scope of publicly available data remains relatively limited. The new system significantly broadens the amount of information accessible to consumers and competitors alike.

Under the amendment, the register will include the product name, form of the product, qualitative composition, information regarding active substances, details concerning explanatory proceedings, and information about prohibited ingredients. Although quantitative composition data and certain identifying information regarding the reporting entity will remain confidential, the reform nevertheless represents a substantial increase in market transparency.

From the consumer protection perspective, this may be viewed as a positive development. Consumers will gain easier access to information about supplement composition and regulatory status, potentially allowing for more informed purchasing decisions. However, from the business perspective, the new transparency rules create considerable reputational risks. Information regarding ongoing explanatory proceedings may become publicly visible long before any final administrative decision is issued. As a result, companies may face reputational damage even in situations where no violation is ultimately confirmed.

The reform also updates the broader inspection framework to align Polish law with Regulation (EU) 2017/625 on official controls. Although the regulation has already been directly applicable across the European Union since 2019, several references in Polish legislation still pointed to repealed EU acts. The amendment therefore modernizes the legal terminology and adapts national provisions to the currently binding European framework.

Importantly, however, the changes do not significantly expand the substantive powers of sanitary authorities. The amendment primarily introduces terminological adjustments, extending references from “official food controls” to “official controls and other official activities.” Sanitary authorities will continue to possess extensive powers during inspections, including access to facilities, examination of production processes and documentation, and collection of samples for laboratory testing.

The reform does, however, expand the situations in which businesses must bear the costs of inspections and administrative activities. In addition to existing obligations related to violations, follow-up inspections, and border sanitary controls, businesses will now also be required to cover costs associated with official activities performed at their own request, such as the issuance of certain documents. While this change may appear relatively modest compared to other parts of the reform, it nevertheless contributes to the overall increase in operational costs for market participants.

One of the most controversial elements of the amendment concerns advertising and marketing practices. The reform significantly broadens the scope of administrative liability related to the promotion and presentation of dietary supplements. Previously, penalties focused primarily on incorrect product labeling. Under the new rules, liability will explicitly extend to advertising, online promotion, social media activities, and the overall presentation of products.

Most importantly, the amendment introduces severe sanctions for advertising or presenting a supplement before notifying GIS. This is likely to have a major impact on digital marketing strategies commonly used in the supplements industry. Influencer campaigns, online pre-launch promotions, teaser advertisements, and social media product announcements may all potentially fall within the scope of the new sanctions if conducted before formal notification.

The amendment also reinforces existing prohibitions against suggesting that a balanced diet cannot provide sufficient nutrients or implying medicinal properties of supplements. Although these prohibitions already existed under current law, the reform significantly strengthens enforcement mechanisms by attaching much higher financial penalties to violations.

Indeed, the increase in administrative penalties represents one of the most dramatic aspects of the reform. Under the current framework, the maximum administrative fine generally amounts to thirty times the average monthly salary. The amendment raises this threshold to one hundred times the average salary, increasing potential penalties by more than 330 percent.

Based on current economic indicators, maximum fines could exceed PLN 800,000. Such amounts are clearly intended to function as genuinely deterrent sanctions rather than symbolic administrative measures. For large corporations with extensive marketing operations, these penalties may significantly alter risk calculations related to aggressive advertising or borderline compliance practices.

For businesses operating in the supplements sector, the cumulative impact of these changes may be substantial. Compliance costs are likely to increase considerably. Companies may need to invest in legal advisory services, digital infrastructure, scientific assessments, employee training, and enhanced compliance monitoring systems. Marketing departments in particular will face increased scrutiny and will need to carefully verify advertising content before publication.

The reform may also contribute to market consolidation. Large, well-established companies are generally better positioned to absorb increased compliance costs and adapt to stricter regulatory requirements. Smaller businesses, startups, and niche supplement brands may struggle with the financial and administrative burden created by the new framework. As a result, the amendment could unintentionally reduce market diversity and strengthen the competitive position of major industry players.

From the perspective of public authorities, the reform aims to improve the efficiency and credibility of food safety supervision. Digitalization through e-Sanepid and SEPIS is expected to accelerate administrative processes, improve data analysis capabilities, and strengthen market oversight. The introduction of strict procedural deadlines should also reduce the risk of excessively lengthy proceedings and administrative disputes.

At the same time, the implementation of these systems will require significant investments in technological infrastructure and administrative capacity. The effectiveness of the reform will therefore depend not only on the wording of the legislation itself, but also on the practical ability of GIS and related institutions to manage the new digital environment efficiently.

Ultimately, the amendment does not formally transform dietary supplements into products requiring prior authorization before market entry. Businesses will still be able to introduce supplements through a notification-based system rather than a licensing procedure. Nevertheless, the practical reality of operating in the sector is likely to change considerably.

The reform substantially increases the procedural obligations imposed on businesses, strengthens enforcement tools available to authorities, raises financial exposure connected with non-compliance, and introduces far greater transparency into the market. While these changes may improve consumer protection and market oversight, they also create new operational and reputational risks for entrepreneurs.

For companies active in the supplements industry, the coming months may therefore become a critical period of preparation. Businesses that fail to adapt quickly to the new regulatory environment may face not only financial penalties, but also significant disruptions to their commercial operations and marketing strategies.

Artykuł Dietary Supplements Under Tightened Scrutiny: How the 2026 Reform Could Reshape the Polish Market pochodzi z serwisu KIELTYKA GLADKOWSKI LEGAL | CROSS BORDER POLISH LAW FIRM RANKED IN THE LEGAL 500 EMEA SINCE 2019.

At the outset, it should be emphasized that the regulation relating to witnesses in the Act of 29 August 1997, the Tax Ordinance, is laconic.

If a decision is made to take evidence by questioning a witness, the party must be notified of the place and time of the hearing at least seven days in advance. The parties may participate and ask questions during the hearing (Article 190 of the Code of Criminal Procedure).

The doctrine defines a witness as someone possessing knowledge of facts relevant to the case that the tax authority is attempting to reconstruct for the purposes of the proceedings. According to the commentary on the Tax Ordinance, a witness in tax proceedings can be either a person present at an event and thus relying on their personal observations, or one who obtained information indirectly, most often from other people.

Only a natural person can be a witness, regardless of age or legal capacity. The ability to perceive reality and articulate one’s observations is crucial. Therefore, it is impossible for another entity, such as an organizational unit without legal personality or a legal person, to attempt to act as a witness.

Under applicable law, witness testimony is one of the admissible forms of evidence in tax proceedings. If this evidence is used, a concise transcript of the witness’s testimony is mandatory. However, there is one step that cannot be taken spontaneously during the proceedings. If a decision is made to hear evidence from a witness, the party must be notified of the location and time of the hearing at least seven days in advance. Parties may participate in the hearing and ask questions during it.

Witness rights and obligations (including the right to refuse to testify or answer questions)

However, the provisions of the Tax Ordinance specify groups of individuals who cannot be questioned as witnesses. This primarily applies to individuals who, due to health conditions or other circumstances, are unable to properly perceive reality or communicate their observations. This exclusion also applies to individuals obligated to maintain the confidentiality of classified information, unless they have been released from this obligation in a legally prescribed manner. The final category includes clergy of legally recognized denominations, but only with respect to information covered by the seal of confession.

This category primarily includes individuals who, due to illness or disability, are unable to properly perceive their surroundings or communicate their observations to others. However, this does not mean that every person suffering from a mental disorder is automatically excluded from testifying. Their condition at the time of questioning is crucial – if they are capable of consciously perceiving and reporting facts, they may be questioned. In situations raising doubts, the tax authority may consult an expert, such as a psychologist or doctor. It is also worth remembering that communicating observations does not have to be exclusively verbal. Other forms of communication are also permissible, including non-verbal signals and behaviors.

Another group includes individuals obligated to maintain the confidentiality of classified information under circumstances covered by confidentiality, unless they have been released from this obligation in accordance with applicable regulations. This applies to classified information classified as top secret, secret, confidential, and restricted. As the regulation itself indicates, it is possible to release such a person from the obligation of confidentiality, however, this is an exceptional situation, not specifically addressed by the Tax Ordinance. With this in mind, legal scholars refer to the provisions of Articles 179 and 180 of the Code of Criminal Procedure.

The final group excluded from witnessing are clergy of legally recognized denominations – regarding facts covered by the seal of confession. The key issue is the religion and church to which the clergy belongs, as this exclusion applies only to denominations recognized by the Polish legal system.

Apart from the exceptions mentioned above, the obligation to fulfill public obligations imposed on individuals by the state is the rule. Witnessing is generally considered one of these obligations, so serving as a witness is generally unavoidable. Failure to comply with the authorities’ orders may result in disciplinary action.

Public administration bodies, including tax authorities, are obligated to act on the basis and within the limits of the law. Therefore, if for any reason it proves impossible to obtain evidence in the form of witness testimony, this cannot have negative consequences for the taxpayer.

The obligation to testify, however, is not absolute. The legislature has granted the right to refuse to testify to immediate family members of a party to the proceedings. This right is available to spouses, ascendants (e.g., parents and grandparents), descendants (children and grandchildren), siblings, first-degree relatives, as well as persons in a relationship of adoption, guardianship, or wardship. Importantly, the right to refuse to testify does not expire upon the termination of the marriage, adoption, guardianship, or wardship. Exercising this right must also not result in any negative consequences for the parties to the proceedings.

Other witnesses generally cannot refuse to testify, but in certain situations they have the right to refuse to answer a specific question. This applies to cases where answering could expose the witness or their immediate family to criminal or fiscal liability. This protection extends to the same group of individuals who are entitled to refuse to testify: spouses, ascendants, descendants, siblings, first-degree relatives, and persons related by adoption, guardianship, or wardship.

Refusing to answer a question does not constitute an admission of guilt, nor can it constitute grounds for imposing penalties on the parties. At the same time, neither legal provisions nor legal doctrine provide any guidance on the possibility of using this mechanism upon termination of a marriage, guardianship, care, or adoption. In practice, this may depend on the individual authority or court, should the decision be appealed.

Special protection is also provided to individuals bound by professional secrecy. They may refuse to answer a question if doing so would reveal legally protected information. This applies primarily to tax advisors, individuals employed by tax advisors or entities providing tax advisory services, as well as attorneys and legal counselors. The purpose of this measure is to protect the confidentiality of information entrusted to members of professions of public trust.

Before the hearing begins, the tax authority is obligated to inform the witness of their rights. This obligation is a manifestation of the principle of building public trust in the tax authorities and is intended to ensure that the witness is aware of their rights. At the same time, the authority should advise the witness of the legal liability for making false statements and the consequences that may result from providing false information.

Rules for taking evidence from witness statements.

The Act lacks any rules governing witness questioning. The regulations and legal doctrine suggest that the form may be either oral or written, but doubts arise regarding the latter. There is also no information on the procedure for conducting questioning. This leaves the authorities with considerable discretion. In addition to the authorities, the parties may also ask questions of witnesses. The regulations do not specify the extent to which a party may ask questions and provide explanations, hence the legal doctrine’s position that this is permissible at any stage of the questioning.

The Tax Ordinance does not specifically regulate the manner of conducting witness interviews. In practice, this means that tax authorities and courts often resort to solutions developed in other procedures. For example, as in civil proceedings, it is permissible to interview witnesses whose accounts contradict each other. Furthermore, case law has also accepted the possibility of confronting witnesses to clarify discrepancies in their testimony. However, if a witness resides outside of Poland, their interview may be conducted through a consul.

However, it’s important to remember that witness testimony is supplementary in tax proceedings. Tax authorities primarily use this evidence when the collected documentation – particularly tax records, accounting records, or other documents – does not allow for a clear determination of the facts and resolution of the case.

Fiscal secrecy

Fiscal secrecy is the exclusion of individual taxpayer, payer, and collector data contained in documentation submitted to the tax authority. It also covers the confidentiality of such data contained in documents held by the authority or information obtained by the authority about this data. The statutory prohibition on disclosing this type of information is intended to provide additional protection for fiscal secrecy, which is one of several secrets protected by law. The purpose of such measures is to protect individual privacy and safeguard the state’s interest. Only in special cases, for reasons of public interest, is it permissible to disclose this data to tax audits and tax authorities. Such measures are intended to protect the private interests of the person or organizational unit being audited. Expanding interpretations of provisions allowing for exceptions to the rule are also prohibited.

The scope of fiscal secrecy is very broad. It covers not only data contained in tax returns and other documents submitted by taxpayers, payers, and collectors, but also all information obtained by tax authorities in the course of performing their statutory duties.

Protection covers, among other things, information collected during inspections, tax proceedings, tax and customs audits, as well as proceedings concerning fiscal crimes and misdemeanors. Fiscal secrecy also covers data contained in tax authority documentation and information obtained from banks, other institutions, and entities cooperating with the tax administration.

The scope of protection also extends to data obtained through international exchange of tax information, double taxation procedures, risk analyses conducted by the National Revenue Administration, taxpayer cooperation programs, and investment agreements. This means that fiscal secrecy covers not only information provided directly by taxpayers, but also data collected by authorities from other sources and documentation created during ongoing proceedings.

In summary, fiscal secrecy covers not only information collected by tax authorities but also data regarding the sources of this information and how it is stored. The scope of this protection is very broad and is intended to ensure the security and confidentiality of taxpayers’ information provided to the tax administration.

This does not mean, however, that all data is strictly confidential. The legislator has provided exceptions that allow for the disclosure of certain information to a business’s contractors. This applies in particular to information about whether the taxpayer has submitted the required tax returns and documents, whether they have correctly reported the events subject to disclosure, and whether they have any tax arrears. In practice, this means that a contractor can obtain basic information that allows them to assess the business’s tax reliability and credibility.

Subjective scope

In addition to defining what information is covered by fiscal confidentiality, the legislator also specified the group of individuals obligated to maintain it. This obligation primarily rests with employees and officers of the National Revenue Administration, employees of the National Revenue Information Service, and other individuals involved in performing the duties of tax authorities.

Representatives of local government and government administration, members of local government appeal boards, persons undergoing internships and apprenticeships in tax authorities, as well as persons participating in specific tax proceedings or procedures for exchanging information with other countries are also obliged to maintain fiscal secrecy.

The list of entities covered by this obligation is broad and includes all individuals who, in connection with the performance of their duties or participation in proceedings, gain access to information protected by fiscal secrecy. The purpose of this solution is to ensure the security of taxpayer data and reduce the risk of unauthorized disclosure.

Individuals who have access to information covered by fiscal secrecy are required to sign a written confidentiality agreement. Importantly, this obligation does not expire upon termination of employment, internship, apprenticeship, or performance of a specific function. This means that information protected by fiscal secrecy cannot be disclosed even after the termination of these relationships.

The obligation of confidentiality also applies to any person to whom such information has been lawfully disclosed. Disclosure is only permissible when permitted by law. Data subjects are an exception – they are not bound by the obligation to maintain the confidentiality of information relating to them.

The attitude of the tax authorities towards the witness’s representative

In practice, tax authorities do not allow the appointment of a proxy for a witness. They justify this by citing the lack of a clear legal basis in the Tax Ordinance. This position was also confirmed by the Commissioner for Human Rights.

This approach is supported by both case law and prevailing doctrine. It has been pointed out that the participation of a witness’s attorney could be contrary to the principle that tax proceedings are open only to the parties thereto.

Although there are some opinions in the literature supporting a witness’s right to be assisted by an attorney, this view remains decidedly minority. Consequently, it is difficult to expect the tax authority to grant such a request, and the chances of an administrative court changing this position also seem slim.

Artykuł Witness in Polish tax proceedings – obligation, right or risk? pochodzi z serwisu KIELTYKA GLADKOWSKI LEGAL | CROSS BORDER POLISH LAW FIRM RANKED IN THE LEGAL 500 EMEA SINCE 2019.