Entities Engaged in Gambling Activities and the Act of October 28, 2002, on the Liability of Collective Entities for Acts Prohibited under Penalty

Liability under the Act of October 28, 2002, on the Liability of Collective Entities for Acts Prohibited under Penalty most closely resembles the concept of criminal liability, as evidenced by the nature of the institutions defined in this law. It sets out the principles of liability for collective entities for acts prohibited under penalty as crimes or fiscal offenses, as well as the procedures for enforcing such liability. Its role in the field of gambling is significant because gambling activities are predominantly conducted by collective entities.

A collective entity, within the meaning of the Act, is a legal person or an organizational unit without legal personality, which is granted legal capacity under separate provisions, excluding the State Treasury, local government units, and their associations. It also includes commercial companies with participation of the State Treasury, local government units, or their associations, capital companies under formation, entities in liquidation, non-individual entrepreneurs, as well as foreign organizational units.

When does a collective entity bear liability for the conduct of a natural person?

- When the person acts on its behalf or in its interest within the scope of authority or duty to represent it, make decisions on its behalf, or exercise internal control, or exceeds such authority or fails to fulfill a duty;

- When the person is allowed to act due to exceeding authority or failing to fulfill obligations;

- When the person acts on behalf or in the interest of the collective entity with the consent or knowledge of the person referred to in the first point;

- When the person is an entrepreneur cooperating directly with the collective entity in achieving a legally permissible objective;

- Provided that the conduct resulted in or could have resulted in a benefit for the collective entity, even if non-monetary.

This liability is based on the concept of selection and supervision fault, referring to a lack of due diligence in choosing a natural person acting on behalf of the collective entity, insufficient supervision over that person, or poor organizational management that failed to prevent the prohibited act, where exercising proper diligence could have ensured its prevention.

Liability of a collective entity arises only when the natural person acting on its behalf or in its interest is held responsible for the prohibited act and this is confirmed by a final conviction, conditional discontinuation of criminal proceedings, proceedings concerning a fiscal offense, a ruling granting voluntary acceptance of liability, or a court decision discontinuing proceedings due to circumstances excluding the punishment of the perpetrator. Thus, a conviction is not strictly necessary.

Among the offenses that trigger liability for the collective entity upon conviction of a natural person are fiscal offenses against the organization of gambling, as defined in Articles 107 §§1–3, 107a §1, 108, 110, and 110a of the Fiscal Penal Code. Certain acts (Articles 107a §2, 107b, 107c, 107d, 110b, and 111) were excluded from this catalog, primarily to omit minor offenses and because some provisions were enacted long after the draft Act on collective entity liability.

Shareholders or partners involved in a gambling entity are required to have an impeccable reputation, no criminal record, and no security concerns regarding the safety of the state, public order, or the economic interests of the state. Individuals in supervisory or direct operational roles in gambling activities must also possess specialized knowledge verified through completed training. The licensing authority evaluates individuals designated to operate in gambling companies, raising the question of whether a company could be accused of improperly selecting such a person. Furthermore, the Gambling Act provides extensive institutional oversight, making it difficult to prove a lack of due diligence in supervising a particular individual. Nevertheless, the Act includes this form of liability, and these provisions should be kept in mind.

[1] L. Wilk, Gambling. Criminological and Legal Study, Warsaw 2012, p. 255.