In accordance with applicable law (Act on the social insurance system in Poland) and the resolution of the Supreme Court of April 21, 2010 with reference number II UZP 1/10 ZUS (Social Insurance Institution) has no right to question the height of the basis of the contributions declared by entrepreneurs.
Unfortunately, the Social Insurance Institution (ZUS) refers to three decisions of the Supreme Court from the end of 2018, in which the Supreme Court allowed the Social Insurance Institution (ZUS) to intervene in the height of contributions declared in exceptional circumstances, at the initial stage of conducting business. Suddenly in 11 ZUS field offices (out of 43 in whole Poland) ZUS started to issue negative decisions to all the women who declared (and paid to the ZUS) in the past or in present time contributions higher that minimal. After such decision, women have to appeal to the court, and fight in courts usually lasts even two years because the courts are flooded now with a huge number of cases.
Unfortunately the situation in Polish justice system is now affected by the current government and the European Commission has a negative view of the rule of law in Poland. The result is that in some regions in Poland there are first rulings that are negative for the women and judges in the courtrooms say that “in such political situation they must rule in favor of the Social Insurance Institution”.
It was normal for the last decade that people who run business activity declared the height of the social security contribution: some people declared bigger contributions (they had to pay more money every month but in the case of sickness, pregnancy or maternity they received bigger benefits), and some people declared smaller contributions (they paid less money but in case of sickness, pregnancy or maternity they received less benefits). In 2019 ZUS suddenly changed its interpretation of the law and started to exclude insured women (who paid contributions bigger than minimal) from insurance and started to question the benefits already paid to them and deprive them of future benefits. The main goal was to recover benefits already paid. They didn’t only ask women to give back benefits that they received recently, but also women who received benefits even 7 years earlier. The law didn’t change for the last years, but suddenly the interpretation of the same law changed. This is a huge symptom of discrimination of women in Polish law.
Suddenly in ZUS field offices in different cities in Poland clerks started to issue decisions to women which looked the same (like copy-paste) so it is obvious that it was a planned action aiming to recover benefits from women who received them legally even may years ago. Every day women receive negative decisions. There are so many businesswomen who had children in the past few years, that this number exceeds the capacity of the officials.
It is obvious that this institution does not respect the rule of law and the principle of non-retroactivity. It is not the fault of the ZUS clerks but the fault of the officials who manage this institutions and who give orders.
Every time we use normal procedures and we ask for access to public information, we get an answer, that this institution has no tools to check if there are any evidence of discrimination of their actions when they start their investigations against men and women. They say they do not keep statistics allowing to answer our questions.
The problem is very convenient for the ZUS, because only lawyers and experts understand its legal issues. It is also convenient for the ZUS because the system of the social insurance law in Poland allows this institution to destroy lives of many women by one small decision sent to them. After that an innocent woman has to fight with them in the court for two years or even more. The principal of trust in public bodies is destroyed because we don’t know if the interpretation of the law will be different every year. It is impossible to run business when the interpretation of the law made by public institution changes all the time. Young mothers running business are a very vulnerable group. No government dares to fight with miners or farmers because it is easy for these groups to organize a strike or blockage of food supply. As we already noticed – it is extremely difficult to organize and motivate our group.
The problem with changing of the interpretation of the law exists only in a couple of cities (only 11 field offices of ZUS – only in smaller cities – out of 43 in whole Poland). We are afraid that this action was started in only some of the field offices just to check the public reaction and to check the results of court cases. If it goes well (without bigger public resistance), they will continue this action in the rest of the country.
Unfortunately our problem has a strong political background. Current government and the President are from the same populist, far-right political party (“PIS” – Prawo I Sprawiedliwość). Their political agenda is to support the poorest and unemployed by giving lots of benefits at the cost of enterprising people. The current government does not support businessmen, imposing on them bigger and bigger taxes to cover the government’s populist agenda.
Unfortunately all the main public offices and institutions are taken over by the governing party. It is very hard to get their official support. Only the Ombudsman of the Small and Medium Entrepreneurs took our side after we convinced him. Now he supports individual cases of individual women so they can use the letters of support in court cases etc.