The Ombudsman for tiny and Medium-sized Entrepreneurs has consulted the Government's draft law on fair access to and usage of data, which implements Regulation (EU) 2023/2854 of the European Parliament and of the Council into national law.
In a letter addressed to Dariusz Standerski Secretary of State in the Ministry of Digital Affairs, the SME Ombudsman Agnieszka Majewska points out key issues from the position of SMEs.
Excessive regulatory burden
The Ombudsman notes that while the EU regulation explicitly recommends avoiding excessive regulatory burden, the rules on micro and tiny entrepreneurs, including the exemptions provided for them, are unclear and insufficient to defend the smallest players. Moreover, as stressed by Minister Majewska, the EU recommendations are not full reflected in the proposed national legislation, which may consequence in excessive burdens on SMEs in Poland.
Administrative fines
The Ombudsman's top reservations concern the proposed administrative fines, which, according to Agnieszka Majewski, are besides strict and disproportionately advanced for the smallest companies. The SME spokesperson calls for the rule that the imposition of a punishment should be preceded by a mandatory call for corrective action. Only the firm's persistent evasion from the implementation of the identified actions could consequence in financial sanctions, the amount of which should be adequate to the degree of the infringement. As the Ombudsman points out, akin solutions are foreseen in regulations prepared in another EU countries.
Particular caution for task promoters
The SME spokesperson besides stresses that the subject of administrative fines requires peculiar caution from task promoters. The Ombudsman’s Office regularly receives complaints from entrepreneurs affected by disproportionate sanctions, which confirms the request for precise and fair regulation. The Minister of Majewska so recommends that the draft provisions be based on the general principles for administering administrative fines contained in Chapter IVa of the Code of Administrative Procedure. They guarantee transparency, adequacy and consistency of public administration.
Agnieszka Majewska concludes:
"fair access to data is essential for the improvement of the digital economy, but the fresh rules cannot impose on the smallest companies the burdens that exceed their capacity. Regulations should be proportionate, clear and consistent with the spirit of EU recommendations. If the law is to work effectively, it must take account of the reality of entrepreneurs and not exposure them to excessive risks and penalties."
Taking account of the SME Ombudsman's demands will let government to support the improvement of innovation and the data-based economy while protecting micro, tiny and medium-sized enterprises from unjustified administrative burdens.
