Economic law in Poland has been raising expanding doubts about its transparency and efficiency for years. Our country's entry into the European Union required the implementation of directives and regulations to simplify and harmonise the rules of business in the single market.
In practice, however, the national legislative process has frequently increased the administrative burden by extending the minimum EU requirements to include additional provisions, leading to long, not always justified legal regulations and increased costs of operating companies. This approach undermines the competitiveness of Polish companies and paradoxically delays the implementation of innovation on the marketplace .
The phenomenon referred to as gold-plating comes from the English word for "gold-plating" and consists in adding to implementing acts or laws rules that go beyond the basic requirements of EU harmonisation. Among the most common manifestations, experts list the expansion of directories of obligations for entrepreneurs, tightening penalties for infringements and introducing unnecessary time-consuming administrative procedures. As a result, not only the bureaucratic burden increases, but besides the hazard of contradictions between the various legal acts and of extending the period of implementation of fresh solutions. The deficiency of a sound impact assessment, in peculiar as part of the impact analysis on tiny and medium-sized enterprises, makes "golden amendments" economically rationalised and the legislative process out of control.
“Gold Plating study in Poland” was published a fewer weeks ago by the initiative We check, operating within the Foundation for Enterprise Support, in cooperation with Domański Zakrzewski Palinka Chancellery. The method work was conducted by the Regulatory Advice, Legislative and Compliance Practice squad – led by Dr. Anna Hlebicki-Józefowicz, with the support of Gniewomir Wycichowski-Kuchta, Aleksandra Liniewicz and Marcin Kuna. The task was coordinated by Adam Malinowski, and the strategical supervision of the analysis was exercised by Rafał Brzoska, Deregulation Plenipotentiary. The legal position included in the survey corresponds to the situation of 12 May 2025, which allows for a reliable assessment of the scale and specificity of gold-plating in the Polish legal system. This gives the reader a broad image of the problem and inspiration for reforms in the legislative process.
Gold-plating in theory
The phenomenon of gold-plating involves the process of transposing and implementing European Union directives into national legal order. The directives only specify the nonsubjective (result) to be achieved by associate States, leaving them free to choose the form and means of implementation. In contrast to regulations that have been straight applicable since the entry into force, the Directives require implementation into national law – which creates a scope for overregulation erstwhile the legislator introduces government that goes beyond the essential EU minimum. specified gold-plating can happen both where the implemented act provides for minimum harmonisation and where the Directive allows for stricter standards at national level.
In practice, gold-plating takes various forms. This may be a more stringent application of the law than in another associate States, omitting the derogations provided for in the directives or maintaining national standards higher than required by EU law. In addition, there are frequently fresh administrative burdens that go beyond the nonsubjective of the EU standard, as well as imposing stricter sanctions or enforcement mechanisms than foreseen by the Directives.
Although the deviation from the EU minimum does not always gotta lead to negative effects, it is crucial to weigh conflicting values. Any regulation within the limits of gold-plating should be justified on grounds of crucial public interest, proportionate to the intent of the Directive and justified by a sound impact assessment (RI). In practice, the deficiency of this analysis makes the "golden" amendments frequently neglect to deliver the desired socio-economic benefits and, alternatively of facilitating business, make additional barriers.
The negative effects of gold-plating are mainly seen in the deterioration of the competitiveness of national businesses, expanding compliance costs and fragmentation of the interior market. Entrepreneurs request to adapt operational procedures to the specifics of Polish regulations, which frequently results in delays in implementing innovation and expanding administrative burden. The deficiency of coordination and transparency in the legislative process only exacerbates these problems, making it hard to accomplish the EU-wide objectives pursued.
Gold-plating in theory
The phenomenon of gold-plating involves the process of transposing and implementing European Union directives into national legal order. The directives only specify the nonsubjective (result) to be achieved by associate States, leaving them free to choose the form and means of implementation. In contrast to regulations that have been straight applicable since the entry into force, the Directives require implementation into national law – which creates a scope for overregulation erstwhile the legislator introduces government that goes beyond the essential EU minimum. specified gold-plating can happen both where the implemented act provides for minimum harmonisation and where the Directive allows for stricter standards at national level.
In practice, gold-plating takes various forms. This may be a more stringent application of the law than in another associate States, omitting the derogations provided for in the directives or maintaining national standards higher than required by EU law. In addition, there are frequently fresh administrative burdens that go beyond the nonsubjective of the EU standard, as well as imposing stricter sanctions or enforcement mechanisms than foreseen by the Directives.
Although the deviation from the EU minimum does not always gotta lead to negative effects, it is crucial to weigh conflicting values. Any regulation within the limits of gold-plating should be justified on grounds of crucial public interest, proportionate to the intent of the Directive and justified by a sound impact assessment (RI). In practice, the deficiency of this analysis makes the "golden" amendments frequently neglect to deliver the desired socio-economic benefits and, alternatively of facilitating business, make additional barriers.
The negative effects of gold-plating are mainly seen in the deterioration of the competitiveness of national businesses, expanding compliance costs and fragmentation of the interior market. Entrepreneurs request to adapt operational procedures to the specifics of Polish regulations, which frequently results in delays in implementing innovation and expanding administrative burden. The deficiency of coordination and transparency in the legislative process only exacerbates these problems, making it hard to accomplish the EU-wide objectives.
Gold plating examples in Poland
An example of the protection of signallers is 1 of the first over-branch cases of overregulation identified in the report. The Act of 14 June 2024 on the Protection of Persons Reporting Violations of Union Law implements Directive 2019/1937, but already at the phase of shaping the catalogue of notifications, the legislator decided to limit its scope. While the directive itself does not impose an work to introduce a closed list of infringements, and even encourages its extension in order to defend as wide a scope of cases as possible, the Polish law defines the catalogue of infringements in Article 3(1) to (2), and gives it a closed nature, preventing traders from freely extending the scope of applications beyond the strictly indicated areas of law commonly applicable. specified construction may consequence in weaker protection of signallers in Poland compared to another EU countries, where wider catalogues are adopted, sometimes covering all possible infringements.
The second component of overregulation is the work to consult the interior notification procedure in accordance with Article 24(3) to (4) of the Act. The Polish legislator went further than the directive, imposing on legal entities the request for formal consultations not only with trade unions and employees' representatives, but besides with representatives of persons employed on civilian contracts, in the absence of an organization union organization. In addition, the deadlines for specified consultations have been clearly defined (from 5 to 10 days), which in practice introduces an additional phase and a hazard of delays erstwhile setting up interior notification channels.
As a result, both regulations, namely a closed catalogue of infringements and rigid consultation procedures, make increased organisational burden and at the same time reduce the flexibility of the signal protection system. tiny and medium-sized enterprises are peculiarly affected by this. SMEs have limited staff and legal resources, thus preparing consultation papers and holding formal meetings prolongs the time to launch infringement reporting mechanisms. Costs related to the handling of consultation processes (including hiring advisors or training teams) may constitute a crucial item in the operating budget, frequently disproportionate to the scale of operations. Delays in the implementation of interior procedures besides translate into a hazard of non-compliance with EU requirements within the required deadline and a decrease in the assurance of possible whistleblowers in the effectiveness of safety in those smaller entities.
The study distinguishes this example as “quick wines”. The removal of the closed catalogue and the limitation of the scope of the consultation could be achieved by simple amendment of respective paragraphs, without the request to rebuild the full signal system. specified a change would reconstruct full compliance with the spirit of the EU Directive, while expanding the scale and effectiveness of the protection of whistleblowers.
Examples from the financial sector show how gold-plating can take the form of both extending information obligations and tightening the sanctioning strategy at the expense of proportionality.
The first example is the national implementation of the AML Directive (2015/849) in Article 43(4) and Article 18(2) of the Act of 1 March 2018 on the prevention of money laundering and terrorist financing. While the EU Directive only requires actions leading to “declaration of whether transactions or actions appear suspicious”, the Polish legislature imposed on the institutions an work “to clarify the circumstances in which those transactions were carried out”. In practice, this means that alternatively of simply assessing the nature of the transaction, banks or investment funds must carry out in-depth investigations each time for complex, advanced value or different transactions, which generates importantly higher compliance costs and forces operational procedures within global capital groups to adapt to Polish requirements. The effect is twofold: on the 1 hand, there is expanding expenditure on training, monitoring and reporting systems, on the another hand, fragmentation of the single financial market, as each institution must implement separate procedures for Poland.
The second example is the introduction of criminal sanctions by the Polish legislator for failure to fulfil reporting obligations. Article 156(1) of the same Act provides for a word of imprisonment of between 3 months and 5 years for staff of the obliged institutions who do not file a notification of a suspicious transaction or transmit false data. Meanwhile, the AML Directive only allows sanctions and administrative measures, leaving countries free to introduce criminal rules but without the work to apply them to reporting. The Polish implementation so criminalises behaviour which in most EU countries is treated as administrative offences, which means a disproportionate tightening of responsibility. Furthermore, the introduction of effective imprisonment for procedural misconduct discourages the reporting of even dubious transactions, expanding the hazard of institution inactivity and reducing the effectiveness of the anti-money laundering system.
Both of these examples – the extension of the work to explain transactions and the criminalisation of the failure to complete the study – constitute “quick wins” indicated in the Report. Their removal or mitigation could reconstruct proportionality of regulation and reduce compliance costs without compromising the effectiveness of AML mechanisms. Meanwhile, the current legal state increases not only bureaucracy, but besides legal uncertainty of entities operating in the Polish financial market.
An example in the area of technology and cybersecurity shows how the national implementation of NIS2 (2022/2555) – contained in the government draft UC32 – goes beyond the minimum EU requirements and imposes overly restrictive measures on entities operating in 18 sectors of the economy. Firstly, the NIS2 Directive only provides for administrative fines of up to EUR 10 million or 2% of the turnover for key entities and up to EUR 7 million or 1.4% of the turnover for crucial entities. However, the Polish task in Article 34(4) and (5) extends the anticipation of penalties to PLN 100 million for each infringement causing "direct and serious cyber threats to defence, state security, public policy, human wellness or serious property damage" and allows for immediate enforceability of these decisions.
The second overregulation exercise is the fresh powers of the Cybersecurity Authority, which, in accordance with Article 53(9) to (11) of the UC32 project, may suspend or restrict the concession or permit, suspend the business activity or even prohibit the management of key persons. The NIS2 Directive only provides for a temporary suspension of certification or authorisation, and always in a procedure with appropriate procedural guarantees; the Polish proposal introduces strict measures without the request to show guilt and without precise definition of the limits of competence between the concession authorities and the cybersecurity authority.
The 3rd overregulation area is the procedure for recognising providers of ICT components as "high risk" (HRV). In accordance with Articles 67b to 67f UC32, the Minister of Digital Affairs, after consulting the Cybersecurity College, may order the withdrawal of any ICT component in all sectors covered by the Act, while the EU 5G Toolbox only recommends an assessment of the hazard of providers of critical 5G components and does not require their withdrawal. The HRV procedure besides does not usage the standards of the Code of Administrative Procedure, which further undermines the legal certainty of the entities.
As a result, companies, especially medium-sized ones, must bear the costs of purchasing and implementing fresh equipment, adapting interior procedures and preparing for administrative disputes. According to estimates, up to 38,000 entrepreneurs will experience an increase in the burden of compliance and fragmentation of the ICT marketplace in Poland will deepen differences with another EU countries. The study classifies this set of rules as "quick wines" – the abolition of severe penalties above EU rates, the limitation of the powers to suspend concessions and the simplification of the HRV procedure could reconstruct proportionality and legal stableness without prejudice to cybersecurity.
In the pharmaceutical and medical domain, the study identifies respective clear examples of surplus national regulations that go beyond the minimum EU requirements. The first is the "compassionate use" procedure – a mechanics that allows the usage of an unapproved drug in certain groups of patients suffering from serious or life-threatening diseases. Although Regulation (EC) No 726/2004 provides for a national option to introduce specified a procedure, the Polish legislature did not usage it in specified a way as to defend the patient population, limiting itself to imports of the mark to the individual patient. In practice, this means that clinical trial sponsors cannot legally support subjects after the end of the clinical phase, which importantly reduces access to promising therapies – while in Germany or France, comparative usage procedures have been in place for years.
A second sign of gold-plating is an absolute ban on the sale of message order prescription medicines, although Directive 2001/83/EC allows associate States to impose specified a ban only if it is justified by nonsubjective wellness reasons. Poland's ‘prohibit under Article 68(3) of the Pharmaceutical Law’ applies without further specifying these conditions, while, for example, in Germany, liberalisation of the distance drug marketplace has been recognised by the TEU as compatible with EU law. The full ban on distance trade prolongs the transportation time for patients in smaller towns and forces pharmacies to keep additional logistics systems, which increases costs and reduces the competitiveness of the sector.
Another example of overregulation is the work for liable parties to bear the costs of qualitative investigating of drug samples, even if the tests carried out do not show non-compliance. Directive 2001/83/EC does not impose specified a financial burden – inspections and checks are of a framework nature and investigation costs are usually allocated to agencies and producers only if irregularities are found. In Polish pharmaceutical law, Article 108a(2) of the ESA imposes a fee for each series of test sample, which generates crucial costs, especially for smaller pharmaceutical companies and parallel importers.
The study classifies all these examples as ‘quick wins’ – a simple scope of legislative changes (the introduction of the complexity usage procedure, the clarification of the conditions for ban on message order sales, the abolition of the work to pay trial tests) could reconstruct proportionality without prejudice to patient safety.
Conclusion
In conclusion, the “Gold Plating in Poland” study shows that overregulation generates crucial costs for the economy. Entrepreneurs, especially tiny and medium-sized enterprises, request to spend more and more time and resources on extended procedures, reporting and consultation, which affects competitiveness, slows investment and contributes to the fragmentation of the EU's single market. This translates into little attractiveness of Poland as a place of business and an increased hazard of unintended economical effects specified as extended implementation dates or fluctuations of investor confidence.
In order to effectively counter gold-plating, the study proposes the adoption of the EU + 0 rule – the absolute waiver of national enlargements where they are not essential to accomplish the nonsubjective of the Directive – and the “one in, 2 out” rule, according to which each fresh provision must be balanced with the removal of 2 existing burdens. The introduction of these legislative mechanisms would keep a balance between the request to update the law and the request to reduce bureaucracy, while at the same time creating a model of transparent and proportionate implementation of EU acts.
A key condition for the success of these changes is simply a transparent legislative process based on a sound impact assessment (RIA). The study points out that without a thorough economical and social analysis, it is hard to show that additional sharpening brings tangible benefits. In particular, a regular public debate on fresh projects is called for and a precise justification for any deviation from EU minimum standards, taking into account the effects on micro, tiny and medium-sized enterprises and the labour market.
Finally, the authors point to the request to review rapidly the most burdensome rules (qualified in the study as "quick wins") which only request insignificant amendments to mitigate or abolish. The removal of the closed catalogue of infringements in the Signaller Protection Act, the alignment of sanctions in the AML with EU solutions or the simplification of severe penalties in the NIS2 task could immediately reduce compliance costs while maintaining a advanced level of protection for citizens and marketplace security. specified selective deregulation should become the first step towards a more balanced legal strategy in Poland.
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