The judgment was issued in a dispute as to whether, in connection with the conclusion between an entrepreneur and a person performing services for him of a contract bearing the title: “work contract”, it was necessary for the entrepreneur to pay social security contributions. In Poland, not all contracts under which an individual who is not an entrepreneur performs services for an entrepreneur are subject to social insurance. Entrepreneurs, wishing to avoid paying contributions, try to describe in their contracts the obligations of its parties in a way that differs from how the cooperation actually looks like.
In the case at hand, the entrepreneur’s appeal against the decision of the pension authority was dismissed, and then the appeal against the unfavorable judgment was dismissed, as well. The entrepreneur filed a cassation complaint with the Supreme Court, but the complaint was not accepted for examination. In the reasons for the decision, the Supreme Court pointed out that it has repeatedly expressed the legal view that the pension authority is authorized to examine the validity of a contract for the purpose of covering or verifying social insurance coverage.
Thus, the pension authority, which establishes social insurance coverage, may – regardless of the name of the contract and its provisions indicating the nature of the legal relationship to which the parties intended to be subjected – determine its actual nature and the correct title of social insurance. Determining that there is a relationship between the parties to a work contract involving the performance, for remuneration, of services corresponding to named contracts, as defined in Articles 734 (contract of mandate) and 758 of the Civil Code (agency contract), or relevant contracts to which, pursuant to Article 750 of the Civil Code, the provisions on mandate apply, in turn mandates the issuance of a decision on social insurance coverage.
Olga Sztejnert-Roszak, IDI Country Expert for agency & distribution in Poland