WARSAW, Poland—On Jan. 19, for the first time in weeks, skiers crisscrossed the fresh snow in Ostoja Koninki in southern Poland. A lockdown is in effect across the country due to the coronavirus pandemic, but the resort owner found a way around it. Every 15 minutes, he hosts a political summit on the mountain—one of the few events allowed under current rules. Anyone can use the ski lift to attend—all they need to do before buckling their boots is sign a membership form for the “Business Owners’ Strike” political party.
Jozef Pasek is just one of hundreds of entrepreneurs in Poland who have decided to, more or less overtly, reopen their doors in violation of government lockdown rules that have been in effect since late last year, as the country nears 1.5 million total COVID-19 cases. Courts have thus far taken the side of the mutinous businesses that deem the restrictions to be illegal.
“We’re using a loophole,” said Pasek, who said he is unable to benefit from state aid because it excludes businesses with seasonal hires. He said that as the word spreads, his ski resort, which is only 30 miles or so from Poland’s second-largest city, Krakow, is doubling its visitor numbers by the day. “People are tired of staying indoors,” he said.
Tourist businesses across Poland’s mountainous highlands region began coordinating their reopenings on Jan. 18. But the wider movement, egged on by anti-lockdown activists, has snowballed across the country, with defiant nightclubs, restaurants, and hotels continually sprouting up on an interactive online map.
Sebastian Piton, who started the highlands protest, estimates that around half of local businesses have been working in “underground” mode anyway. While none advertise openly, “restaurants still let people in through the back door, and full-up hotels pretend to have family visiting.” With large facilities in the area now planning to officially readmit guests, he believes smaller businesses will be emboldened to flout restrictions too.
In response, the Polish government has oscillated between a carrot and a stick. This month, development Minister Jaroslaw Gowin announced an additional 1 billion zloty (around $267 million) for municipalities in the country’s mountainous south, which have experienced a 70 percent shortfall in tourists. Days later, he threatened that businesses that reopen will be excluded from the funding. Health inspectors and police have also ramped up controls and the issuance of fines, which businesses are refusing to accept on the spot in the hope of fighting them off later in court.
Yet business owners, who fear the loss of their livelihoods under lockdown, deem government restrictions to be illegal so long as the government does not introduce a constitutional state of emergency. Hotels and cultural venues have been closed since Nov. 7, restaurants have been limited to takeout since Oct. 24, and gyms and pools have been shut since Oct. 17. They will remain so until at least the end of January.
Prolonging lockdown is politically costly. While small-business owners are not generally Law and Justice voters, the highlands protest took root in the ruling party’s electoral heartlands of southern Poland. In a survey conducted on Jan. 19, a majority of Poles—including a majority of Law and Justice voters—said they sympathize with the rebels, with almost 70 percent of respondents backing restaurants and hotels, as well as 75 percent supporting ski slopes reopening. Nightclubs were the one exception, with just 24 percent cheering on the rule-bending.
Many entrepreneurs now feel cheated by the lockdown rules. This past November, Poland’s Prime Minister Mateusz Morawiecki promised that when the coronavirus infection rate dropped below a certain threshold—which it did on Dec. 26—businesses would reopen in some capacity. That thaw never came, and the pledged financial drip has dried up. State aid of 5.1 billion zloty ($1.4 billion) for December and January will only be released in February. Piotr Muller, the government’s spokesman, told Foreign Policy that “funds are reaching business owners on a regular basis,” and a total of 175 billion zloty (nearly $47 billion) has already been allocated.
Disgruntled entrepreneurs also complain about the arbitrariness of lockdown rules, which allow churches and some shops to stay open. Many have thus sought creative ways of reimagining their core business to circumvent rules. Two nightclubs have reopened as political party headquarters, an ice-skating rink became a flower “warehouse” by plugging a few stray roses in the center of the venue, and a grilled sausage joint offered customers the option of dining in by teaching them how to use cutlery.
Poland is also the only European country to have closed hotels even to business travelers. Some guesthouses have started advertising rooms as “ski lockers” or sold parking spots for a weekly fee of nearly $700, with rooms thrown in as a free bonus. Taxi drivers in some towns are offering discounted rides to local restaurants that have opened.
Stiffening the resolve of the rebels, courts have been taking their side. In a landmark case of a hairdresser from the southern Polish city of Opole who was caught trimming hair during the spring lockdown, the court annulled the penalty she was given, explaining that the 10,000 zloty ($2,700) fine breached “the essence of freedom of economic activity” enshrined in Poland’s constitution. Health authorities have now appealed the decision.
The government, however, insists that its rules are legal, based on the 2008 act on preventing and combating infections and diseases. “We are aware that the restrictions are burdensome for entrepreneurs, but we are fighting for the life and health … of Poles,” Muller told Foreign Policy.
Yet legal experts have argued that the 2008 law only provides a basis for some restrictions, but that curbing movement and shutting down business activity require the introduction of a constitutional state of emergency. While the government has rejected that escalation as unnecessary, skeptics have accused it of seeking to avoid the additional financial burden of businesses then legally claiming compensation. The government had already backed down from a planned curfew for New Year’s Eve, which Poland’s commissioner for human rights called a “flagrant violation of the constitution.” Courts have also started retracting penalties issued by health authorities, with one in Warsaw withdrawing more than 20 fines in a single week in early January.
“Restrictions on conducting business activity were introduced without any legal basis,” said Mariusz Bidzinski, a law professor at the University of Social Sciences and Humanities. He argues that “the only reason for obedience is the introduction of a system of policing and repressive punishments with immediately enforceable penalties imposed by the health authorities.” While the vast majority of these are annulled by the courts, larger penalties issued by health inspectors are executed within seven days and can thus deter cash-strapped businesses from risky reopenings.
When Lukasz Szyszkowski reopened his Trzy Po Trzy pizzeria in Glogow, a town in southwestern Poland, he was immediately paid a visit by the health inspector with seven police officers. “The police offered a fine, which I rejected,” he said. He is optimistic that the prescribed penalty of 30,000 zloty ($8,000) will be retracted: “Courts have been cancelling fines en masse, so why should my case be any different?” Szyszkowski said, adding that more customers are coming for pies now than even before the lockdown.
In response, the Chief Sanitary Inspectorate told Foreign Policy that there are “educational effects” of its activities such as “the resignation of many entrepreneurs from the previously announced opening facilities … where the risk of getting infected is very high.”
Yet business as usual is returning in waves. The Polish Fitness Federation has announced that its members’ gyms will reopen on Feb. 1 irrespective of government rules. As a loophole, many sporting facilities have signed up members to niche sports teams, such as the Polish Tug-of-War Association, to qualify them as athletes who are allowed to train for competitions. As a result, Poland’s national swimming team has temporarily reached 19,000 members.
“We are in a legal gray zone,” said Piotr Wolejko, a lawyer at the Employers of Poland, the largest employers’ organization in the country. “The government is acting as if there is a state of emergency without actually introducing one,” he told Foreign Policy.
Wolejko believes the state’s credibility is being undermined: “Its decision-making process is opaque, erratic, and unstable. If the government does not treat its own commitments seriously, then it will face consequences such as those that we are seeing right now.” He hopes that the mass disobedience will push the government to negotiate a clear road map for loosening restrictions to give businesses more foresight.
The government, however, insists that there are still too many unknowns, which could lead to “ill-considered decisions,” Muller said. “Loosening safety rules depends not only on the level of infections, deaths, or the availability of COVID beds. Another unknown is the new mutation of the virus, and so we must be very humble about potential scenarios. The third wave of the pandemic is a very serious threat.”
Bidzinski, the law professor, believes that continued sanctions give businesses “a hard claim for compensation for all incurred losses from the state” which it “will be obliged to pay in huge penalties and damages, perhaps in the tens or hundreds of billions, in the near future.”
Meanwhile, others worry that the government may reassert control through other means. Lawmakers from the ruling coalition have recently proposed a new law that would make it compulsory to accept police fines for minor offences on the spot—suspending the current option of refusing them—and only allowing later appeals in court.
Widespread challenges to Poland’s lockdown regime have uncovered its stilted legal foundations and, with that, the shaky authority wielded by the government. “History has seen a long list of rebellions, uprisings, insurrections, and other forms of social opposition to power. There is no indelible power, and, as experience teaches, even the most untouchable and elusive people are eventually held to account,” Bidzinski said.
