Business secrets of investors are at risk in Poland due to the failure to transpose EU law on the protection of defence counsel privilege. Investors—but also attorneys, legal advisers, clergy and journalists — should beware of CBA officers who have not been trained in defence counsel privilege, the secrecy of confession, and journalistic secrecy as regards sources.
Poland as a legal risk for investors and beyond
Poland risks losing investors’ trust and facing financial penalties imposed by the Court of Justice of the European Union because investigative authorities (e.g., the Central Anti-Corruption Bureau, CBA) and prosecutors in criminal proceedings, as well as authorities in administrative proceedings in competition matters and, ultimately, the courts, may—due to gaps in national law—violate defence counsel privilege laid down in Article 4 of Directive 2013/48/EU. Such violations do occur in Poland, in particular consisting of:
- the absence of domestic rules on the so-called sealed envelope procedure (Luxembourg case-law calls this the “sealed envelope procedure”), meaning secure envelopes into which seized data carriers are placed, including what Luxembourg case-law refers to as “business records”. In practice, the lack of a sealed envelope procedure manifests itself as happened in my case: on 23 April 2024, CBA officers from the Katowice regional office, led by CBA officer Angelina Błaszczyk, in the presence of Prosecutor Barbara Piotrowicz of the District Prosecutor’s Office seconded to the National Prosecutor’s Office, seized from me, as an attorney, data carriers, including three attorney’s notebooks with sticky‑note entries on the cover pages containing information covered by defence counsel privilege, and—at my request—placed them in thirteen secure envelopes labelled “defence counsel privilege”. These envelopes were then opened at the Katowice‑Wschód District Court; that court (sitting in its own case—my motion to transfer the case to another court was dismissed) held, by order of 8 December 2025, that the envelopes had been opened by the court custodian by mistake because there are no national rules governing the sealed envelope procedure. The envelopes were then resealed at the court, and the court custodian—on the basis of a forged order of that court, which, as established by a prosecutor of the Regional Prosecutor’s Office in Katowice in an investigation opened on my complaint, stated that the envelopes should be handed over to the prosecutor—handed them to CBA officer Angelina Błaszczyk on the instructions of Prosecutor Edyta Lenart of the Regional Prosecutor’s Office seconded to the National Prosecutor’s Office, even though earlier, by an order of 28 August 2024 , the Katowice‑Wschód District Court had directed that the secure envelopes be returned “directly” to me and had found that “there was no basis” for seizing from me the data carriers placed in the envelopes, since I, as an attorney, had asserted defence counsel privilege. Subsequently, on 12 November 2024, CBA officer Angelina Błaszczyk returned the envelopes to my legal representative partially unsealed;
- a legal gap consisting in the lack of a codified exclusionary procedure enabling the elimination from proceedings of evidence gathered unlawfully, including contrary to the provision protecting defence counsel privilege in Article 4 of Directive 2013/48/EU; that is, Article 4 of Directive 2013/48/EU, read together with Recital 49 of that Directive, has not been transposed at all with respect to ensuring the requirement that, in accordance with the principle of effectiveness of EU law, Member States should introduce appropriate and effective remedial measures to protect the rights granted to individuals under this Directive.
In addition, CBA officer Angelina Błaszczyk testified—record of the interview of CBA officer Angelina Błaszczyk of 4 June 2025—that CBA officers receive no training in the secrets of defence counsel, confession, or journalistic sources.
The legal gaps described above naturally have a chilling effect on investors. In 2023, as a professor and attorney, I prepared for foreign investors a legal opinion on the legal risks of investing in Poland in RES (renewable energy sources; the investments were to be located in the Pomeranian Voivodeship), and the clients asked me, inter alia, about domestic rules protecting secrecy as regards “business records”. My answer first pointed to the failure to transpose Article 4 of Directive 2013/48/EU with respect to the “sealed envelope procedure”, which shifts legal risk into business risk because of “business records”, within the meaning, for example, of the CJEU judgment in AM & S Europe, paras 16, 18 and 29.
I lodged a complaint about the above with the European Commission and received the following response:
“As regards the alleged infringement of Article 4 of Directive 2013/48/EU, an infringement procedure against Poland is currently ongoing, covering the issues you raised in your complaints. On 11 December 2025, the Commission adopted the relevant decision to refer the case concerning the alleged infringement of Directive 2013/48/EU to the Court of Justice of the European Union.”
The fact that the secure envelopes labelled “defence counsel privilege”, containing the data carriers seized from me, were opened was reported by the President of the National Bar Council to the Minister of Justice–Prosecutor General and to the Minister–Coordinator of Special Services at the end of 2024. Why is there still no draft legal act eliminating the above legal gaps by fully transposing Article 4 of the Directive together with the recitals of that Directive? Is it because such a draft would acknowledge that I was unlawfully imprisoned for sixteen months? In connection with this, I am filing a notification of a suspected offence of failure to perform official duties by Adam Bodnar.
Assoc. Prof. Dr Hab. of Law Waldemar Gontarski, Attorney-at-law