The media outdo each other in pointing out alleged loopholes in the Act on limiting trade on Sunday and during holidays. However, taking advantage of the larger part of these alleged loopholes can be dangerous for entrepreneurs.
While we approach the very essence of the prohibition with a great deal of distance, one should be warned against treating the aforementioned Act as legal trash. It may well turn out to be tighter than it seems to the creators of various loopholes, all due to the wording of Article 5 of this Act.
It reads as follows:
Article 5. On Sundays and holidays, in retail outlets:
1) trade and performing activities related to trade,
2) entrusting the employee or hired personnel with work in trade and performing trade related activities
– are prohibited.
The use by the legislator not only of a trade ban, but also a ban on “trade-related activities” constitutes a significant extension of the scope of application of the Act. Moreover, it causes tangible results.
In view of this phrasing, let us look at one of the supposed loopholes in the trade ban. Widely described in the media is one specific way to allegedly bypass the trade ban. This are supposed to be the so-called “showrooms”, that is places where wares will only be presented, and their purchase will take place via the Internet.
However, pursuant of Article 5, we warn against opening such facilities, as undoubtedly, the mere availability of goods, presentation thereof and the possibility of, for example, trying them on, might be clearly viewed as “activities related to trade”.
Expanding the store’s offer, in case of a florist or confectioner, also won’t bypass the ban. In the Act, the term “predominant activity” was introduced as an attribute for those trade establishments. Although clarification of its meaning will probably take several years in practice, it is risky to conduct commercial activities based on the absolutely uncertain expectation that in the future a Polish court may rule in one’s favour.
We also do not recommend conducting traditional trade on the occasion of concerts or festivals. In the Act, there is a provision that such trade should take place “for the needs” of such an event. It is difficult to recognise that in the case of a concert in a shopping centre, opening a store with exclusive lingerie would be considered trade “for the needs” of this concert or festival. It would have to be a really one-of-a-kind festival.
So, does this mean that there is no way whatsoever to bypass the ban? Not really. We will observe with curiosity the development of petrol stations on Polish roads, as they are unambiguously and clearly exempt from the ban.
However, we still see at least three more instances in which commercial activity on Sunday may flourish. These most important and the most interesting exceptions allowing Sunday trade are the following:
commercial establishments in hotels (Article 6, section 9);
retail outlets in facilities conducting activities related to culture, sport, education, or tourism and leisure (Article 6 section 10);
commercial establishments located on military bases (Article 6 section 19).
There is especially much potential in case of trade on generally accessible stadiums and sports facilities. A large number of modern sports facilities, including football stadiums, was constructed in major Polish cities. Running Sunday trade there is not dependent on the organisation of a given match day or another sporting event. So maybe in the future, we will live to see no-frills supermarkets on stadium grounds?
The second really interesting exception is the possibility of commerce on military bases. The legislator does not limit the scope trade to soldiers and people staying there “on business”. One can then imagine the opening of a large, generally available store (with the consent of the unit’s commanding officer) in the adjacent area, for example next to an airport or hangars for tanks. And may we remind you that the military’s real estate portfolio encompasses also properties in really interesting locations, including plots in major cities. This means we may be witness to the development of trade (not necessarily limited to) Sundays thanks to these military properties.
Shops in hotels may also be an interesting experiment although there, due to the specificity of the hotel industry, as the owners of these facilities may limit the scope of commercial activity. We can only imagine it with difficulty that managers of luxurious hotels would have nothing against their guests meeting with large numbers of shoppers. Although one could always build a separate entrance to the building…
The Act contains a number of exceptions to the prohibition of trade. We assume, however, that at least two of them will not be too popular. We do not bode well for stores located in penitentiary establishments and funeral homes. But maybe it’s only that our imagination is limited.