📋 Contents
Key legal restrictions related to the COVID 19 pandemic
Prohibitions and restrictions in social life
1. Obligation to cover the mouth and nose
Pursuant to § 25(1) of the Regulation dated 27 December 2020, the obligation to cover the mouth and nose using clothing or its part, a mask, face shield, or helmet is imposed in: – public transport – including buses, trams, metros, minibuses, as well as in generally accessible places, including: – on streets, cemeteries, promenades, boulevards, vehicle parking areas, forest parking areas, – in common property areas, e.g. in stairwells – at workplaces, if more than one person is in the room – in public utility buildings, e.g. in schools, churches, courts – in commercial or service establishments, commercial or service outlets and at marketplaces (stalls);
-> The obligation to cover the mouth and nose does not apply in private cars, nor to, among others, a child up to the age of 5; a person who cannot cover their mouth or nose for medical reasons (a doctor's certificate must be presented during inspection); public transport drivers, or a married couple. It is unclear whether a person performing religious worship should cover their mouth and nose. The Regulation contains internal contradictions. § 25(1)(3) of the Regulation dated 27 December 2020 imposes the obligation to cover the mouth and nose during religious worship, including religious activities or rites, in a public utility building intended for religious purposes and in a cemetery. In turn, § 25(3)(7) of the Regulation exempts persons performing religious worship from this obligation during its performance.
2. Social distancing
In accordance with § 24(1) of the regulation, until 27 December 2020, when moving in public spaces, a distance of not less than 1.5 m must be maintained between individuals. The obligation to maintain distance does not apply to:
* persons caring for a child under the age of 13,
* persons caring for a person with a disability certificate, a person with a certificate of disability degree, a person with a certificate of need for special education, or a person who, due to their health condition, cannot move independently,
* persons living or managing a household together, as well as persons who are fulfilling the obligation to cover their mouth and nose.
3. Restrictions on organising gatherings and family events (including rules for organising Christmas Eve and other family events during Christmas 2020)
In accordance with §26 of the ordinance, only gatherings with a maximum of 6 participants are permitted until 27th December 2020 (exception – gatherings organised on the basis of a notification). Participants in gatherings must cover their nose and mouth and maintain a distance of 1.5 metres from other people. Furthermore, the distance between gatherings must not be less than 100m. Until 27th December 2020, all other events, meetings and gatherings are prohibited regardless of their type. However, the following are permitted: – business and professional meetings or gatherings – events and meetings (including Christmas Eve) for up to 5 people, which take place at the premises or building indicated as the address of the place of residence or stay of the person organising the event or meeting. Importantly: the person organising the event and people living or staying with them are not included in the person limit.
Therefore, you can invite a maximum of 5 people who do not live with us to Christmas Eve.
What restrictions will apply on New Year's Eve 2020? How many people will be able to spend New Year's Eve 2020/2021? This is not known at the moment. We are waiting for the publication of information on this subject, only guesses remain. All we know is that the lobbying of the inhabitants of Podhale to loosen the restrictions for the New Year's Eve party is very strong.
4. Public transport
Pursuant to Section 24(1)(2) of the Regulation, until 27 December 2020, public transport and motor vehicles designed to carry more than 9 people, including the driver, may carry no more passengers at any one time than 50% of the number of seats, or 30% of the total number of seats and standing places, whilstat the same time ensuring that at least 50% of the seats remain unoccupied inside the means of transport or vehicle. The restrictions on passenger numbers do not apply to special means of transport intended for the carriage of people with disabilities.
5. Air transport
Until 27 December 2020, a passenger will not be admitted to the aircraft if:
• their body temperature is equal to or exceeds 38°C
• they have not submitted a health declaration form provided by the airline during check-in
• they do not comply with the obligation to cover their mouth and nose with a face mask
6. Shops
Until December 27, 2020, individuals present:
* in facilities with a retail or service area exceeding 2,000 m2 are subject to restrictions on retail activities.
* in other retail establishments where Sunday trading is prohibited,
* at petrol stations,
* at markets – in addition to covering their mouths, they are obliged to wear gloves or disinfect their hands.
The requirement to wear gloves or disinfect hands does not apply to persons who cannot put on or take off gloves due to their health condition, pervasive developmental disorders, mental disorders, moderate, significant, or profound intellectual disability, or persons who have difficulty putting on or taking off gloves independently. The presentation of an appropriate decision or certificate in this regard is not required.
Until December 27, 2020, a limit on the number of people in retail establishments, markets, or post offices is in effect. At any one time, no more than:
* 1 person per 10 m2 – for facilities and establishments with an area intended for sale or service provision not exceeding 100 m2.
* 1 person per 15 m2 – for facilities and establishments with an area intended for sale or service provision exceeding 100 m2.
7. Hours for seniors
In accordance with § 12 of the regulation, up to and including 27 December 2020, commercial or service establishments whose predominant activity consists of, among others, the sale of food, toiletries, cleaning products, medicinal products, and provision of postal services – will exclusively serve persons over 60 years of age between Monday and Friday from 10:00 AM to 12:00 PM. Exception: the senior hours do not apply on 24 December 2020. Senior hours do not apply in the following cases: when the release of a medicinal product, medical device, or foodstuff for special medical purposes occurs in a situation of threat to life or health; wholesale trade; commercial establishments operating in schools or educational institutions (i.e. the error leading to school shops being initially closed has been corrected).
8. Obligation for minors to stay at home
Pursuant to § 9 of the regulation, until 27 December 2020, minors under the age of 16, from Monday to Friday between 8:00 AM and 4:00 PM, may only travel under the supervision of a person exercising parental authority, a legal guardian, or another adult. An exception to this prohibition is travel to reach school or an educational institution, or return from them to the place of residence.
9. Remote teaching and holidays
Remote learning in schools is extended until January 3rd, 2020. Sports classes in sports schools and practical classes in vocational schools may take place in person. Kindergartens remain open. All voivodeships have holidays planned at the same time – from January 4th to January 17th, 2020.
10. Activities of offices
Until 27 December 2020, in accordance with § 22 of the Regulation, offices will remain on remote work. However, offices may handle certain types of matters in person (essential tasks) if the head of the office agrees. Such tasks may include, among others: • civil status registration • population registration and identity cards • social assistance • provision of communal services • operation of labour offices, including support for entrepreneurs in connection with the epidemic caused by SARS-CoV-2 infections • issuance of driving licences, registration certificates and other transport documents The permissible number of clients present at the same time in one room must not exceed 1 person per service desk, excluding persons performing tasks related to serving clients. Courts and the prosecution service will function unchanged – in person.
11. Church activities
In buildings and other religious sites, it may be possible to have (in addition to persons conducting religious worship, persons carrying out burials, or persons employed by a funeral home in the case of a burial), while maintaining a distance of no less than 1.5 m: • no more than 1 person per 15 m2 of area. Participants in religious events are obliged to cover their mouth and nose.
12. Travel
Pursuant to § 2 section 1. of the Regulation, until December 27, 2020, the movement of passengers in rail transport crossing the border of the Republic of Poland with countries outside the European Union is suspended. This means that all railway connections with Ukraine, Belarus or Russia have been suspended.
13. Sanatoriums and rehabilitation
Based on § 13 of the regulation, until 27 December 2020, the following are suspended: 1. provision of health resort treatment services, 2. provision of healthcare services for medical rehabilitation, including rehabilitation within: • rehabilitation stays, • medical and prophylactic stays in healthcare facilities supervised by the Minister of National Defence • medical and prophylactic stays in healthcare facilities established by the minister competent for internal affairs, which provide inpatient and 24-hour healthcare services for health resort treatment or health resort rehabilitation • readaptation and fitness stays. The exception applies to cases where the suspension of rehabilitation poses a risk of serious deterioration of the patient's health – to benefit from the service, a negative COVID-19 test result must be presented.
Prohibitions and restrictions on running a business
1. Discos, gyms, solariums
Based on § 10(1) of the Regulation dated 27 December 2020, a ban has been introduced on conducting:
1. discos and nightclubs, or activities involving the provision of a space for dancing organised within premises or other enclosed spaces, excluding sports dance clubs;
2. swimming pools, aquaparks, gyms, fitness clubs and centres, with the exception of swimming pools, gyms, fitness clubs and centres, except for:
a) those operating within entities performing medical activities intended for patients,
b) those intended for individuals engaged in sports as part of sports competition, sports activities or sports events, as well as students – as part of classes at a university or school; (which means, in practice, most gyms are open again)
3. services related to improving physical fitness (classified under Polish Classification of Activities subclass 96.04.Z) – i.e., services of Turkish baths, saunas and steam baths, solariums, slimming salons, massage salons, which aim to improve well-being.
2. The catering industry
In accordance with § 6 paragraph 9 of the regulation, as of 27 December 2020, operating a catering business (classified under section 56.10.A and section 56.30 of the Polish Classification of Activities) is only permissible
3. Hotel industry
In accordance with § 10 sec. 2 of the ordinance of 27 December 2020, the provision of hotel services, understood as the short-term, generally available rental of houses, flats, rooms, accommodation, as well as pitches for tents or caravans is permitted only for: • those using these services as part of a business trip • athletes using these services during training camps and sports competitions • persons performing medical professions • patients and their carers, if the necessity of providing them with accommodation results from the conditions specified for a given healthcare service. In order to use hotel services, an appropriate document confirming the purpose of the stay must be presented – a certificate from the employer, a Polish sports association, or a healthcare provider. In accordance with the ordinance, discos, saunas, baths, solariums, and massage parlours not offering therapeutic massages (i.e. in practice the latter will remain open) will remain closed in hotels. In accordance with § 10 sec. 5 of the ordinance, guests may only use gastronomic services offered by entities providing hotel services,
4. Hairdressing, beauty and tattoo parlors industry
The operation of businesses related to hairdressing and other cosmetic treatments (classified under Polish Classification of Activities subclass 96.02.Z) and the operation of tattoo and piercing parlours (classified under Polish Classification of Activities subclass 96.09.Z) is permitted, provided that only staff and serviced clients, and in the case of clients requiring care, their guardian, are present at the premises where the activity is carried out. Moreover:
• no more than 1 person per service station may be present at the premises where the activity is carried out, excluding staff
• service stations must be located at least 1.5 m apart, unless there is a partition between these stations that is at least 1 m high, measured from the surface of the service station, or whose upper edge ends at least 2 m from the floor level.
5. Sports, entertainment and recreation industry
In accordance with § 10 (15) of the Regulation, conducting sports, entertainment, and recreational activities (included in the Polish Classification of Activities in Division 93.0) – including sports halls – is permitted, provided that it is carried out with a limit of no more than 150 participants and without spectators. In accordance with § 10 (19) of the Regulation, until 27 December 2020, entertainment and recreational activities are prohibited – e.g. related to the operation of escape rooms, haunted houses, or amusement parks. The prohibition does not apply to the operation of ski slopes and the rental of recreational equipment that is an integral part of the recreational facility.
6. Culture
Until 27 December 2020, all creative activities related to all forms of collective culture and entertainment, and activities related to showing films or video recordings in cinemas, outdoors or in other locations, and film club activities are prohibited. It is permissible to carry out:
• activities necessary for the preparation of artistic events – e.g. rehearsals and exercises
• phonographic and audiovisual recordings;
• events transmitted by means of direct remote communication."
– without audience participation.
Until December 27, 2020, places such as cinema, theater, museum, art gallery, cultural center and opera will remain closed. Unfortunately, you cannot borrow books from libraries in stationary form.
7.Congress and trade fair industry
In accordance with § 6 sec. 15 of the regulation, it is forbidden to conduct activities related to the organization, promotion or management of events such as trade fairs, exhibitions, congresses, conferences, and traditional meetings until 27 December 2020. The regulation permits the organisation of such events exclusively online. Compliance of the restrictions introduced during the pandemic with the Constitution of the Republic of Poland It should be noted that the legal nature of the restrictions introduced under the Regulation, as well as those introduced in the past under other implementing acts, raises considerable doubts within the legal community. This is because, pursuant to Article 31(3) of the Constitution of the Republic of Poland of 2 April 1997 (Journal of Laws No. 78, item 483, as subsequently amended) – hereinafter: the Constitution – restrictions on the exercise of constitutional freedoms and rights may be laid down only by statute and only where they are necessary in a democratic state for its security or public order, or for the protection of the environment, public health and public morals, or the freedoms and rights of other persons. Furthermore, such restrictions must not infringe upon the very essence of those freedoms and rights. The principle governing restrictions on constitutional freedoms and rights, as set out in Article 33 of the Constitution, is directly linked to the principle, set out in Article 22 of the Constitution, that restrictions on the freedom of economic activity may be imposed on grounds of an important public interest only on the basis of an Act. Similarly, in its judgment reference number Kp 1/09, the Constitutional Tribunal expressed the view that the legislature may not delegate the regulation of significant matters relating to restrictions on the freedom of economic activity to be dealt with by regulation. The Constitution therefore establishes the principle of the exclusivity of statute when restricting constitutional rights. In accordance with this principle, all significant matters relating to the restriction of rights should be settled by statute. (see P. Tuleja [in:] P. Czarny, M. Florczak-Wątor, B. Naleziński, P. Radziewicz, P. Tuleja, The Constitution of the Republic of Poland. Commentary, Warsaw 2019, Article 31.) In a statement published on his website on 27 March 2020, referred to the restrictions introduced at the start of the pandemic: including the ban on movement, compulsory quarantine – including quarantine for those returning to the country – as well as restrictions on religious practices by setting a maximum number of worshippers in places of worship. The Ombudsman pointed out that the authorities had, without a statutory basis, restricted three important freedoms of citizens: freedom of conscience and religion (Article 30 of the Constitution), freedom of movement within the territory of the Republic of Poland (Article 52 of the Constitution) and freedom of conscience and religion (Article 53 of the Constitution). Restrictions in this regard were introduced by regulations of the Minister of Health, whereas, pursuant to Article 31(3) of the Constitution, a formal condition for the admissibility of restrictions on human and civil rights and freedoms is that they be laid down in an Act. The Ombudsman emphasised that a regulation should contain only provisions of a technical nature, which are not of fundamental importance from the point of view of an individual’s rights or freedoms. On 4 June 2020, in a letter addressed to the Prime Minister, the Ombudsman submitted an analysis of the legislation introduced in connection with the COVID-19 pandemic. The Ombudsman pointed out that, although the majority of the prohibitions, orders and restrictions introduced were substantively justified, the legal form of their introduction – by way of a regulation rather than an Act in accordance with Article 31( 3 of the Constitution – infringed citizens’ rights during the pandemic. The Ombudsman also emphasised that a significant proportion of the fines imposed by public health authorities for non-compliance with the restrictions introduced by these regulations are therefore being imposed in breach of fundamental constitutional rights and freedoms. The Ombudsman demonstrated that the Council of Ministers had deliberately refrained from declaring a state of natural disaster, and therefore those in power cannot invoke extraordinary circumstances to justify the far-reaching restrictions on civil liberties introduced by the regulations. Although in this case all the restrictions do indeed appear to be entirely justified in the context of the fact that during the most difficult days people were dying in ambulances whilst waiting for over a dozen hours to be admitted to hospital, the fact remains that, strictly speaking, all this should have been handled ‘slightly’ differently. We would, however, advise – to paraphrase the well-known saying, ‘don’t freeze your ears off just to spite your mum’ – that this is, after all, a matter of our health and lives.
Law basics:
Due to the prevailing epidemiological situation, based on the Regulation of the Minister of Health of 20 March 2020 on the declaration of an epidemic state throughout the Republic of Poland (i.e. Journal of Laws 2020, item 491, as amended), an epidemic state has been introduced throughout Poland from 20 March 2020 until further notice. The legal act governing the prevention of infectious diseases is the Act of 5 December 2008 on the prevention and combating of infections and infectious diseases in humans (i.e. Journal of Laws of 2020, item 1845, as amended) – hereinafter referred to as the Act. Based on Art. 46a and Art. 46b points 1-6 and 8-12 of the Act, the Regulation of the Council of Ministers of 26 November 2020 on the establishment of certain restrictions, orders, and prohibitions in connection with the occurrence of an epidemic state (Journal of Laws 2020, item 2091 – hereinafter referred to as the Regulation) was issued, which introduced a number of restrictions in connection with the COVID-19 pandemic. This is another legal act of this type issued by the government in recent months to limit the transmission of the virus. The current restrictions concern both social life and the economic freedom of Poles.