The draft act in its current language seems to be a regulation prepared at random. Instead of implementing the Service Directive through the existing legislation concerning freedom of business activity, a new fragmentary and unfortunately chaotic legislation has been developed. Incomplete definitions of terms and missing list of services exempted form the application of the act plus a strange definition of business activity necessitate further development of the draft and more discussion. Proposed business solutions are innovative, however are described in an unspecific manner. The service directive is to be implemented in the legislation of the EU member countries by the end of this year. Therefore we have less than half
a year to pass the final version of the act together with secondary legislation and to amend existing law.

The basic objective of the directive is to create a competitive business environment on the service market. It depends on effective removal of numerous barriers on the internal market. Such barriers hinder many types of service activity at different stages of conducting business. Removal of legal barriers holding up the development of a truly internal market is a priority in pursuing the goal set by the European Council in Lisbon and regarding improvement of employment, social coherency and achieving a continuous economic growth. Indeed, services is a driving force of the economic growth, responsible for 70% of GDP and existence of jobs in majority of member states.

The Service Directive of the Parliament and the Council sets overall legal framework beneficial for a wide range of services and at the same time takes into consideration specific features of individual service sectors and professions and their respective regulations. The framework is based on a dynamic and selective approach focusing first of all on those barriers that can be removed quickly and in case of other barriers trying to start a process of assessment, consultation and complementary harmonization of specific solution allowing for a progressive and coordinated modernization of domestic regulatory systems concerning the service activity which is a prerequisite for the existence of a true internal market for services by 2010. The said coordination of domestic legislation is supposed to ensure a high level of legal integration and effective protection of common interests – in particular consumer protection; regrettably the analysis of documents put together in the Ministry of Economy reveals no signs of such protection. 

In case of some services, especially those associated with the real estate market or business activity that potentially can put at risk one’s assets or wealth, much less importance is attached to obligations towards a service provider and obligations towards a citizen or consumer gain more significance. Such concern for the economic interest of consumers in the area of property management, real estate agency and appraisal – i.e. services involving high value assets – is missing from the draft act implementing the directive.

Being concerned of consumers, the Polish Real Estate Federation, the Polish Federation of Property Managers’ Associations, the Polish Federation of Property Valuers’ Associations and the Polish Federation of Property Managers have jointly developed a concept of a „contact point” in conformity with the preamble of the Directive No. 2006/123/WE of the Parliament and the council dated 12 December 2006 regarding services on the internal market.

A „contact point” from the viewpoint of service providers is a comprehensive institutional entity they can approach instead of approaching several other organizations or bodies to receive all needed information and take necessary steps associated with their service business activity.

The four professional associations proposed that based on a provision in the service activity act they will have the right to apply to the Council of Ministers through the Ministry of Economy to vest some decision making authority in the „contact point” , e.g. delegation of the registration process or issuing permits in uncomplicated matters.

The European law does not regulate extensive areas from the environment of business activity and the real estate market. Therefore it depends on the government of Poland how friendly local regulation will be for businesses and whether the business environment will promote investments in Poland and also whether consumers will be given at least a minimum protection on the real estate market.

It is necessary to regulate real estate professions in order to provide general protection of clients against possible damages that could be made by people active in those professions without having appropriate qualifications and skills or failing to exercise due diligence. What in particular is at stake is the security of financial resources and assets of individuals and businesses as well as the protection of their civil rights. Hence, in case of the above professions, the regulation is of preventive nature and as such should serve the purpose of client protection. If we give up licensing or qualification requirements, consumer protection will exist only as a declaration.

An agent, appraiser or property manager having signed the contract works directly for the client. A special quality of real estate professions is a personal liability for the service and a signature confirming it. When the service requested by the client from a real estate agent, an appraiser or a property manager is not delivered properly, not only does he lose money paid for the service (it often can be paid back) but at times much more, as the service cost is at the most a few percent of assets involved in the transaction. When anybody can enter the profession, without verification of his or her qualification and without the obligation to abide by professional standards, then clients are at risk of losses caused not only by dishonesty of the service provider but also because of his/her lack of knowledge. Every case like that damages the image of the profession and those who for many years did not spare efforts to gain their knowledge. The reality is that negative experience spreads out stronger than positive one.

The directive touched on the consumer protection issue. It uses a term „supreme public interest” which denotes also consumer protection. Only overriding considerations may justify the application of a system of requirements or even restrictions. However, the directive includes a condition of no discrimination of a particular service provider and stipulates that the predefined objective cannot be reached through the application of less restrictive measures, in particular when control could take place too late to be effective.

I do not think that qualification requirements necessary to get a license constrain the opportunity to conduct business activity in the area of real estate agency, appraisal or property management. Basically, today the only criterion of allowing a person to access the said professions is knowledge reinforced during professional apprenticeship. The Service Directive in its chapter IV on freedom of provision of services and allowed departures unambiguously reads that its provisions do not apply to issues covered by the Directive No. 2005/36/WE of the Parliament and the Council dated 7 September 2005 on recognition of professional qualifications. The Directive sets clear rules for almost every profession, including appraisers, real estate agents and property managers. It was implemented by the act of 18 March 2008 on recognition of professional qualifications. Since there are a number of issues that can affect real estate professionals if the service activity act fails to provide high quality legislation, four national associations of the real estate market decided to appoint a formal lobbying team that would operate in line with the act of 7 July 2005 on lobbying activity in the legislation process. The team is composed of representatives of the following organizations: the Polish Real Estate Federation, the Polish Federation of Valuers’ Associations, the Polish Federations of Property Managers’ Associations, and the Polish Federation of Property Managers.

The team was appointed in conformity with the relevant law, through the indication of interest in development of the draft act on service activity.