KSeF and freedom of economic activity

When a technical system becomes a tool of power

The discussion around the National e-Invoicing System (KSeF) is conducted in a surprisingly superficial manner. The Ministry of Finance talks about “sealing the system,” “digitization,” “facilitating business” and “aligning with European standards.” Accountants analyze API integrations, XML structures and implementation schedules. Entrepreneurs – tired of more obligations – are shrugging their shoulders and saying, “another requirement, somehow it will be done.”

Meanwhile, the most important dimension of the KSeF is almost completely overlooked:
its impact on the real freedom of doing business.

Because KSeF is not just a technical system. It is a change in the architecture of the relationship between the state and the entrepreneur. A change that has consequences far beyond taxes and invoicing.

What freedom of economic activity actually is

In the Polish legal order, freedom of economic activity is not a courtesy of the state to the citizen. It is a systemic principle.

The Polish Constitution (Articles 20 and 22) indicates clearly:

• economic activity is free,
• Its restriction can only be done by law,
• Only for reasons of important public interest,
• and in compliance with the principle of proportionality.

That last word is key.

Freedom of economic activity does not consist of the state “letting you act.” It relies on the entrepreneur to act independently, and the state:

• creates a legal framework,
• Controls the compliance of activities with the law,
• responds after the fact when violations occur.

In a healthy legal system, the state does not mediate every transaction, is not a permanent participant in trading, and does not technically decide whether an activity can happen.

KSeF as a qualitative change, not “another obligation”

KSeF is radically changing this model.

It is no longer:

• after-the-fact reporting,
• follow-up inspection,
• reporting obligation.

KSeF is becoming a technical condition for the existence of business trading, especially in B2B relations.

If:

• The invoice will not be issued in KSeF,
• will not be received by the system,
• will not obtain the status of “correct.”

then in legal and economic terms the transaction does not exist.

This means that the possibility of doing business:

• no longer derives solely from the law,
• does not result from the will of the parties,
• but from continuous access to the central state system.

This is the point where neutral digitization ends and systemic dependence begins.

Central system as a point of control and point of failure

Any centralized system has two features:

1. checkpoint,
2. point of failure.

KSeF combines both.

If all legal economic turnover goes through one system, then:

• An administrative decision is sufficient,
• system error,
• “temporary suspension of access.”
• additional authorization,
• designation of the entity as “requiring verification.”

to cripple the company’s operations within hours, without physical inspections, without sealing the premises, without publicity.

The entrepreneur formally “may act,” but:

• cannot issue an invoice,
• Cannot pay the supplier,
• Cannot serve business customers,
• loses liquidity.

This is not regulation. This is a technical shutdown of operational capacity.

No viable alternative = no freedom

A key element of economic freedom is the ability to choose the form of action within the law.

KSeF does not leave that choice.

It does not exist:

• parallel, legal circulation,
• alternative invoicing channel,
• A viable fallback path for the entrepreneur.

This means that the state:

• not only sets the rules,
• But it monopolizes the channel of existence of circulation.

In practice, the entrepreneur does not operate “within the law,” but through the state infrastructure, which may be:

• limited,
• modified,
• selectively available.

This is a fundamental violation of the idea of freedom of business.

Experiencing a pandemic: it’s already happened

The argument that “it’s just a tool” and “it’s all up to the people” sounds reassuring – but is historically naive.

The COVID-19 pandemic showed that:

• The state is ready to administratively shut down entire industries,
• Often from day to day,
• Without real compensation,
• Without the personal responsibility of decision-makers.

Catering, fitness, culture, tourism – all of these were excluded by administrative decision.

The difference is that back then the state banned activities, but could not technically shut them down. There was always some margin of survival, legal or semi-formal.

KSeF eliminates this margin.

New model of power: quiet, sterile, emotionless

KSeF enables a new type of control:

• without the police,
• Without field inspections,
• Without media images of protests.

Enough is enough:

• system lock,
• “technical error.”
• “temporary suspension of access.”

The system does not scream. It doesn’t threaten. It doesn’t use force.
It simply cuts off the entrepreneur’s ability to live off his own work.

This is a power that is cheaper, more effective and more difficult to challenge than classical repression.

Proportionality – the biggest constitutional problem

Even if one considers that:

• The fight against tax fraud is an important public interest,

then a fundamental question arises:

Is the creation of a system that allows full, ongoing control and technical exclusion of trading a proportionate measure?

Constitutional law answers clearly:

• The measure must be essential,
• least intrusive,
• cannot create redundant tools.

KSeF is not such a measure. This is because it creates the potential for power far greater than the stated fiscal goal.

Legal doesn’t mean free

KSeF can be introduced by law.
It can be formally legal.
It can operate “according to procedures.”

This, however, does not mean that:

• does not violate the spirit of freedom of economic activity,
• does not push the limits of the state’s power over the citizen,
• does not set a precedent for the future.

History teaches that the tools of control rarely go unused once there is a crisis, public fear or “higher necessity.”

The real question about KSeF

Therefore, the real debate about KSeF should not be about:

• file formats,
• implementation dates,
• transition periods.

It should address one question:

Should the state be technically able to shut down a business with one click?

Because the moment the state controls:

• turnover,
• money,
• invoicing capability,

controls everything.

And then the question is no longer “will it improve the system,” but:

When will someone see fit to use this control ?