Favourable judicature for entrepreneurs regarding demurrage

A year ago, on March 8, the Act of March 2, 2020 on special solutions related to the prevention and combating of COVID-19, other infectious diseases and the crisis situations caused by them entered into force. Pursuant to Art. 15zq par.4 "A person running a non-agricultural business activity is entitled to the demurrage if he / she commenced conducting non-agricultural economic activity before April 1, 2020 and:

1) has not suspended non-agricultural business activity and if the income from non-agricultural business activity within the meaning of the provisions on personal income tax obtained in the month preceding the month of submitting the application for the demurrage was at least 15% lower than the income obtained in the month preceding that month ;

2) suspended the non-agricultural business activity after January 31, 2020;

3) is not subject to social insurance for any other reason, unless is a subject to retirement and disability pension insurance for non-agricultural business activity. "

The provision mentioned above did not refer to the criterion of conducting predominant activity under a specific PKD code. On its basis, an entrepreneur who did not suspend operations due to COVID, and whose income decreased by at least 15% compared to the previous month, could apply to ZUS (Social Insurance Institution) for a demurrage. The demurrage for persons running a business is PLN 2,080, and for persons running a business, who settle accounts in the form of a tax card and benefit from VAT exemption - PLN 1,300.

The social security organ rigorously interpreted the cited provision and refused to grant demurrage to entrepreneurs who actually lost significant income due to the pandemic. Some entrepreneurs appealed against the decisions in question, including the entrepreneur who has been providing transport services since 2014. Due to the situation in Poland and Europe, from the beginning of 2020, he did not receive any income in February and March, which, according to ZUS, made it impossible to receive benefits. The District Court in Katowice examining this case was of a different opinion (judgment of 30 December 2020, file reference number X U 1353/20). The court indicated in its justification that the interpretative directive referring to the principle of a rational legislator supports the adoption of a teleological interpretation of Art. 15zq paragraph. 4 of the Act. It is obvious that the financial instruments introduced by the anti-crisis shield were to constitute a form of public aid for entrepreneurs whose revenues, due to the spreading of the virus in Poland and thus the imposed restrictions, decreased significantly. The court found the argumentation of the social security organ as unconvincing because of the lack of granting benefits to a person who did not receive any income due to the current situation, and the granting of this assistance to persons who had income reduced by at least 15%. As a result, the court has equaled the situation of entities which, due to the pandemic, have lost their income in whole or in part.

The cited judgment is not the only decision in favor of entrepreneurs. Previously, the District Court in Olsztyn (judgment of 2 September 2020, file no. IV U 1195/20), as a result of a complaint by a fitness instructor, granted her the right to a demurrage. The justification in the present case was the same. The court also referred to the concept of a rational legislator, according to which it should be considered that the proper form of interpretation of the law in the present case will be a functional interpretation. In the opinion of the court, the legislator's clear intention was to grant financial aid to those operating in the industries most affected by COVID. Then, on December 15, 2020, a similar judgment was made by the District Court in Łódź (file number: VIII U 1686/20).

Taking into account the standpoint of the Courts, it can be concluded that they replace the actions of the legislator, who by introducing these provisions was aimed at helping entities affected by the coronavirus epidemic. On the other hand, the interpretation of social security bodies is extremely precise, which in the case of a complete loss of revenues is unfavorable for entrepreneurs. The adopted line of jurisprudence may, however, change the approach of ZUS in this respect.