History and modern times, administrative procedure in Poland

INTRODUCTION

 

History and modern times, administrative procedure in Poland

The history of the codification of Polish administrative procedure begins with the Second Republic of Poland. Shortly after Poland recovered its independence, legislative attempts were undertaken to codify a uniform set of principles for administrative procedures. In 1922, the Act on the Supreme Administrative Tribunal was passed. In 1923, the Act on Legal Remedies Against Administrative Rulings was passed, which provided for uniform rules governing appeals and the initiation of proceedings for the entire Polish territory. The Second Republic of Poland, by adopting in 1928 the Ordinance of the President of the Republic of Poland on Administrative Procedure, became one of Europe’s leaders in satisfying the demand for codifying principles of administrative procedure. The above ordinance governing the administrative procedure remained binding also in the post-WWII period, until 1960, when the second set of codified rules and principles of administrative procedure was introduced by the Act of 14 June 1960 – the Code of Administrative Procedure (consolidated text: Dz.U.2018.2096). The above act was supplemented in 1980, with provisions restoring the control over public administration exercised by administrative court to the Polish legal system. The amended Code only adjusted the provisions to the changes of structures and organization of public administration (reforms of 1990 – in particular, the introduction of local self-government, and of 1998 – in particular, the introduction of new administrative division and new authorities of public administration) was and still is binding and valid.

 

Despite the necessary introduction of technical corrections throughout the period of its validity, the Code proved to be an efficient tool in regulating the relations between individuals and administrative authorities. In particular, the Code turned out to be a stable foundation of procedural guarantees in the difficult period of system transition at the turn of the 20th and 21st centuries by, in particular, the proper establishment of the standing of individuals in administrative procedure.

 

Poland, being among Europe’s leaders with regard to satisfying the demand to codify administrative procedure, now has a Code which fully corresponds to legal requirements required by the legal system of the European Union. Polish administrative procedure law is, as a rule, compliant with the European Union’s regulations within that scope (in particular the European Code of Good Administrative Behaviour enacted in 2001 by the European Parliament) and, by shaping the legal standing of individuals in their relations with the public administration, the Polish rules and procedural guarantees excel standards introduced by the European Union’s bodies; the Code may constitute itself a reference point in this regard.

Issue No. 1 Goals and objectives of Administrative Procedure Code (APC) of the Republic of Kazakhstan project

The Code of Administrative Procedure (CAP) does not define its goals and objectives, as well as the Law on Proceedings Before Administrative Courts (LPBC). However, CAP precisely describes, in positive and negative sense, the scope of its regulation.

 

Article 1. [Scope of regulation]      The Code of Administrative Procedure governs:

1) the proceedings before competent public administration authorities in individual matters to be determined by way of administrative decisions or disposed of without notice by the authority;

2) the proceedings before other state authorities and other entities appointed to decide matters specified in paragraph 1 by operation of law or on the basis of agreements;

3) the proceedings in matters involving disputes between authorities of units of self-government and government administration authorities over authority and competency and between those authorities and entities specified in paragraph 2;

4) the proceedings in matters regarding the issuance of certificates;

5) the imposition or enforcement of administrative monetary penalties or the granting of relief in the enforcement of such penalties; and

6) the procedure for administrative cooperation in the European Union.

 

Article 2 [Extension] The Code of Administrative Procedure also governs the proceedings regarding letters of dissatisfaction and proposals (Division VIII) before state authorities, authorities of units of self-government and before social organizations’ bodies.

 

Art. 2a. 1 [Performance of the information obligation regarding the processing of personal data]

§ 1. The Code of Administrative Procedure also regulates the manner of performing the obligation referred to in art. 13 section 1 and 2 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 / EC (General Regulation on data protection) (Official Journal of the EU L 119 of 04/05/2016, p. 1, as amended), hereinafter referred to as "Regulation 2016/679", in proceedings listed in art. 1 and art. 2. [...]

 

Article 3. [Exclusion] § 1. The provisions of the Code of Administrative Procedure shall not apply to:

1) proceedings in fiscal penal matters;

2) matters governed by the Act of 29 August 1997 – Tax Ordinance (Journal of Laws of 2017, items 201, 648, 768 and 935, as amended), except for Divisions IV, V and VIII.

 

§ 2. The provisions of the Code of Administrative Procedure shall also not apply to proceedings in matters:

4) for which Polish diplomatic representations and consular offices have competence,

unless specific provisions provide otherwise.

§ 3. The provisions of the Code of Administrative Procedure shall also not apply to proceedings in matters arising from:

1) organizational priority in relationships between state authorities and other state organizational units;

2) subordination of employees of authorities and organizational units specified in subsection 1,

unless specific provisions provide otherwise.

 

§ 4. However, provisions of Division VIII shall apply to proceedings in matters specified in § 1, 2 and 3 subsection 2.

 

Issue No. 2 “The concepts of “administrative body”, “administrative act”, “administrative discretion” and “administrative procedure”

Administrative body.

 

The term „administrative body” (public administration authorities) is defined in Art. 5 § 2 item 3) of the Administrative Procedure Code.

 

Article 5. [Definitions]

§ 2. Any reference in the provisions of the Code of Administrative Procedure to:

3) public administration authorities – shall mean ministers, central government administration authorities, voivodes and acting on behalf of the above authorities or on their own other local government administration authorities (combined and non-combined), authorities of units of self-government and authorities and entities specified in Article 1 subsection 2 [other state authorities and other entities appointed to decide matters specified in paragraph 1 by operation of law or on the basis of agreements];

 

Administrative act.

 

„Administrative act” is not defined in the Code of Administrative Procedure. The doctrine says, that an administrative act is a formalized (undertaken as a result of a procedure) symptom of the will of the administrative body taken on the basis of law and within the limits of its competence, directed to an individualized addressee, in a specific case, having legal effects in the sphere of administrative law, and sometimes also in the sphere of other branches of law. The addressee of an administrative act may be a citizen or other body of public or private law. Statutory law provisions should not only specify what rights and obligations may be the subject of decisions of public administration, but also should clearly authorize the public administration to make such decisions and specify the procedure for making decisions and the principles for checking the correctness of these decisions. The law should also specify the form of the settlement. Forms of administrative acts most often specified in legal regulations are administrative decisions (e.g. concessions, permits, consents, licenses).

 

Article 104. [Form of disposing of the matter] § 1. The public administration authority shall dispose of the matter by issuing a decision, unless the provisions of the Code provide otherwise.

§ 2. A decision concludes the matter as to the merits in whole or in part or otherwise closes the proceedings in the given instance.

 

Administrative discretion.

 

Administrative discretion is not formally defined in the Polish law.

 

In the process of issuing an administrative act, i.e. in the process of applying specific administrative law standards, public administration bodies have certain ranges of independence, for example in determining the facts, assessing this factual state, in interpreting the applicable legal norms, choosing the content of the decision, and valuing the related choice, etc. The ranges of independence in question may be extended or narrowed by law. The independence of a public administration body is never unfettered, however, as it is always determined to some extent by law and case law. The most complete form of legal independence of the body issuing the administrative act is the so-called administrative discretion.

 

This is independence, which is given by a blank legal norm to a public administration body, constructed in such a way that with a fully developed hypothesis, the instruction has a disjunctive form, which means that the administrative body has the choice between different ways of behaving under the conditions set out in the hypothesis; can independently determine the settlement criteria and based on these criteria determine the content of the settlement. Regardless of what behavior the administrative body chooses, which criteria it will determine, and which content it determines, it must issue a decision.

 

The blank norm in question does not oblige the authority to perform a specific behavior, it only gives authorization to do so. The public administration body must determine the content of the decision itself, but for this to happen, it must determine the manner of exercising the granted authorization. In particular, it must determine the specific purpose it is to pursue in order to use this authorization in accordance with the public good, with the public interest, individual interest, etc. In other words, a public administration body must establish certain measures according to which it will have to evaluate various solutions which are acceptable in the face of a given norm, and from which it will choose one, the most appropriate one. A public administration body is, however, obliged to choose the behavior that it considers best, i.e. one that is compatible with the public good, the social interest, but also with the interests of entities that are the recipients of administrative acts. In the face of the blank norm within which the body operates, any behavior, or more precisely, any behavior of the administrative body is possible and equivalent, each equally complies with the norm of law.

 

There is a dispute in the doctrine of administrative law about the nature of the measures (criteria) used by the administrative body to search for the best solution within the blank norm. According to some, self-assessment of the administrative body may be based on measures "outside the legal norm", which means that the administrative body can select them according to its subjective belief. According to other authors, self-assessment of the administrative body is associated with the adoption of only such criteria, which are included in the legal system. The role of the administrative body is only to interpret the criteria sought from the norms of applicable law.

 

The independence of the administrative body in the form of administrative recognition, however, is never arbitrary. It always results from the authorization expressed in the construction of the blank norm contained in the provisions of the Act. Therefore, this independence is conditioned by the blanket norm itself, so it is always limited to some extent and direction. Numerous limitations of this legal independence of the administrative body result, moreover, from substantive law norms (which may indicate some selection criteria), procedural law norms (which determine the principles and procedure leading to the issuing of an administrative act), and norms of constitutional law, which through a legally determined system of dependence organizational bodies issuing an administrative act, determine the possibilities of interference in the sphere of administrative recognition by an organizationally superior body.

 

If the administrative act undertaken in the field of legal independence qualified as administrative recognition is based on statutory authorization, then the administrative court appointed to check legality may not be excluded from the examination as to whether this statutory authorization has not been exceeded and whether other legal provisions, e.g. provisions on conduct administration. The court therefore examines whether the limits of administrative discretion have been exceeded. The administrative court does not, however, control the evaluation assessments on which the public administration body based its decision. That court cannot, therefore, annul the contested administrative decision because of an incorrect assessment of the purpose taken by the administrative body. Repealing the decision for these reasons would mean that the court imposes other value judgments on the administrative body, and thus would be the interference of the court in the administrative competence and taking over the administrative function by that court.

 

It is therefore necessary to distinguish between administrative discretion (i.e. self-assessment, assessment of the advisability of a decision based on established facts) and administrative act taken in the field of administrative recognition. Administrative discretion within the meaning of the above is not subject to judicial review, while the "discretionary" administrative act is subject to judicial review from the point of view of whether it complies with formal statutory requirements.

 

Administrative discretion should be distinguished from such forms of legal independence of the administrative body as the assessment of the actual state in the process of applying administrative law standards and the assessment of unmarked concepts contained in legal norms used by the administrative body.

 

Administrative procedure

 

Administrative procedure is not defined in the Polish law. In the legal doctrine is accepted the following understanding of this term:

 

1) By the concept of administrative procedure it is understand the procedural sequence of procedural steps taken by public administration bodies and other subjects to settle administrative matters regulated by procedural law in the form of an administrative decision, as well as the series of procedural steps taken to verify the administrative decision.

 

2) By the concept of administrative court proceedings, it is understood as the sequence of procedural acts of the administrative court and other entities of these proceedings, governed by procedural law, undertaken to resolve a dispute regarding the lawfulness of the act or failure to act by the body executing public administration.

 

Legal capacity.

The notion of legal capacity of public administration bodies corresponds to a set of premises determining the ability to take procedural and substantive legal actions in administrative procedure. The legal capacity of public administration bodies is set by procedural law standards. Based on legal solutions adopted in the Code of Administrative Procedure, the general and special competence of public administration bodies is distinguished. These concepts are defined as follows: general competence is the legal capacity of administrative bodies to settle administrative matters in a given procedure, while special competence is the legal capacity of administrative bodies to settle a specific administrative matter in a specific type of procedure.

 

The general competence of public administration bodies in administrative procedure is established in Art. 1 item 1 and 2 of the Code of Administrative Procedure. Pursuant to these provisions, public administration bodies as well as other state bodies and other entities have legal capacity to conduct administrative proceedings when they are established by law or under agreements to settle matters referred to in Art. 1 point 1. Accepted in Art. 1 points 1 and 2, the solution is based on the concept of general open competence. The enumeration of the system of organs with general competence is not finite. It is not limited to granting general competence to public administration bodies, but also includes other organs outside the general administration system (state bodies), as well as other entities (e.g. professional self-government bodies).

 

The special competence of public administration bodies is determined by two institutions: jurisdiction and exclusion from the case.

 

Competence (jurisdiction) of public administration bodies. By the concept of jurisdiction we understand the legal capacity of the authority to hear and resolve a particular type of case in administrative procedure. In administrative procedure, depending on what basis the public administration body has acquired the ability to hear and resolve a case, two types of jurisdiction can be distinguished:

a) statutory jurisdiction, i.e. resulting directly from a provision of the Act;

b) assigned jurisdiction, i.e. arising from the assignment, and this is due to the transfer of a given case or procedural act to one public administration body by another public administration body.

 

Statutory jurisdiction. Article 19 of the CAP provides for two types of jurisdiction - subject-matter jurisdiction and territorial jurisdiction. Based on the provisions of procedural law governing the verification of administrative decisions, could be distinguish the third type of jurisdiction - instance jurisdiction.

Subject-matter jurisdiction is the legal capacity of public administration bodies to hear and handle matters of a given category. This type jurisdiction is in CAP mentioned by name, and as to its determination in the case - Art. 20 refers to provisions on the scope of activities of public administration bodies.

 

The basis for determining subject-matter jurisdiction is the provisions of substantive law.

 

In the light of the solutions adopted in system and substantive administrative law, determination of subject-matter jurisdiction is complex. Subject-matter jurisdiction cannot be determined solely on the basis of substantive law, but it is necessary to determine it on the basis of concluded agreements: unions, resolutions that lead to a change of this jurisdiction. Violation of concluded agreements or adopted resolutions leads to a violation of subject-matter jurisdiction of a public administration body. In the decision, the public administration body is obliged to indicate the substantive law provisions, the concluded agreement or the resolution from which the property jurisdiction arises.

 

Territorial jurisdiction is the legal capacity of a public administration authority to hear and handle matters of a given category within the area of a given territorial division unit of the country. The rules for determining territorial jurisdiction are governed by Art. 21 of the Code of Administrative Procedure, establishing qualification criteria. According to it, the territorial jurisdiction of a public administration body is determined:

1) in matters relating to real estate - according to its location; if the property is located in the area of jurisdiction of two or more bodies, the decision belongs to the authority in whose area the greater part of the property is located;

2) in matters relating to the operation of the workplace - according to the place where the workplace is, was or is to be run;

3) in other matters - by place of residence (seat) in the country, and in the absence of residence in the country - by the place of stay of the party or one of the parties; if neither party is in the country of residence (seat) or stay - according to their last place of residence (seat) or stay in the country.

 

Instance jurisdiction is the legal capacity of a public administration authority to carry out administrative verification of decisions. The rules for determining instance jurisdiction are set out in the CAP, provided that priority is given to special provisions of separate acts as to the designation of another appeal body. Instance jurisdiction is granted to higher level bodies and, to a limited extent, also to ministers. The public administration bodies recognized as higher rank bodies are set out in Art. 17 of the CAP. According to this provision, higher-level bodies are:

1) in relation to the bodies of local government units - local government appeal boards, unless specific acts provide otherwise;

2) in relation to voivodes - competent ministers;

3) in relation to public administration bodies other than those referred to in points 1 and 2 - relevant superior bodies or competent ministers, and in their absence - state bodies supervising their activities;

4) in relation to bodies of social organizations - relevant higher-level bodies of these organizations, and in their absence - a state body supervising their activities.

 

Public administration bodies are obliged to comply with their jurisdiction ex officio. Article 19 of the CAP although it introduces this obligation with regard to subject-matter and territorial jurisdiction, it should also be extended to comply with ex officio jurisdiction with respect to instance jurisdiction. A public administration body, initiating ex officio or upon request, in a case, is obliged to check ex officio its jurisdiction in this case. If a party has submitted an application to an improper body, then the body should take actions provided for in art. 65 and 66 of the CAP.

Article 19. [Observance of jurisdiction] Public administration authorities shall observe ex officio their substantive and territorial jurisdiction.

 

Article 65. [Lack of competence] § 1. If the public administration authority to which the application has been submitted is not competent in the matter, the authority shall immediately refer the matter to a competent authority, simultaneously notifying thereof the person who submitted the application. The notification should contain the reasons.

[...]

§ 2. The application submitted to an authority not competent in the matter before the elapse of the prescribed time limit shall be deemed submitted within the time limit.

 

Article 66. [Form] § 1. If the application concerns several matters to be disposed of by different authorities, the public administration authority to which the application has been submitted shall consider the matters for which the authority is competent. Simultaneously, the authority shall notify the applicant that with regard to the other matters the applicant should submit a separate application to the competent authority and the authority shall instruct the applicant of the contents of § 2.

§ 2. A separate application submitted in accordance with the notification specified in § 1 within 14 days of the day of service of the notification shall be deemed submitted on the day the first application had been submitted.

§ 3. If the application had been submitted to an incompetent authority, and the competent authority cannot be established on the basis of information included in the application, or if it appears from the application that a common court should be competent in the matter, the authority to which the application had been submitted shall return the application to the applicant. The return of the application shall be effected by means of an order, which shall be subject to complaint.

§ 4. The authority may not return the application due to the reason that a common court has competence over the matter, if the court had previously ruled that it is not competent in the matter.

Factual reasons. This group of restrictions includes the provision that persons who are incapable of being witnesses are persons unable to perceive and communicate their observations (Art. 82 item 1) of the CAP). Whether a natural person of legal age or a minor may act as a witness is determined by actual and current ability to perceive or communicate their observations at a given time. The assessment of this ability belongs to the deciding authority in the case, and in the case of using legal aid institutions - to the authority receiving the testimony of a witness.

Legal reasons. These restrictions are listed in art. 82 item 2) and 3) of the CAP; being a witness is excluded for: persons under an obligation to keep classified information confidential with regard to circumstances to be kept confidential, unless they have been released from the obligation to keep confidentiality under applicable provisions of law; clergymen with regard to facts revealed under the seal of confession. Persons belonging to this group do not have the capacity to act as a witness only within the limits prescribed by law.

A natural person to whom these limits do not apply has a legal obligation to act as a witness. The performance of this obligation is limited by institution of the right to refuse to be testified and the right to refuse to answer questions.

The right to refuse testimony applies only to the party’s spouse, ancestors, descendants and siblings of the party as well as first-degree relatives by marriage and persons being in an adoptive, wardship or guardian relationship with the party. The privilege to refuse testimony shall survive the dissolution of marriage, adoption, wardship or guardianship.

A witness has the right to refuse to answer a question, if the answer would expose him or the persons closest to him (as listed above) to criminal liability, disgrace or direct material damage or shall cause the infringement of the obligation to keep a legally protected professional secret. The adjudicating authority assesses whether a person has the right to refuse to testify or the right to refuse to answer a question.

The mode of receiving testimony from a witness has not been regulated in the CAP. Only in art. 83 § 3 of the CAP it is stipulated that before collecting testimonies, the public administration authority shall instruct the witness of his privilege to refuse testimony and answers to questions and liability for perjury. The Code of Administrative Procedure does not introduce a swearing-in of a witness or a promise to testify the truth from a witness.

The Code of Administrative Procedure does not regulate the form of a witness testimony. There is opinion in legal doctrine that a witness can only testify orally. This results from the very content of the witness interview. However, taking into account Art. 50 § 1 and Art. 54 § 1 of the CAP, relating to calls in which the possibility of giving evidence in writing is provided, it should be considered that a witness may also give evidence in writing. The authority conducting the proceedings is obliged to draw up a report from the oral testimony of a witness (Art. 67 § 2 item 2 of the CAP).

Article 82. [Incapability of being a witness] The following persons are incapable of being witnesses:

The mediator shall not testify as to facts which came to his knowledge in connection with the conducted mediation, unless he is released from the duty to keep mediation secrecy by the participants in the mediation.

Article 50. [Purpose of summons] § 1. A public administration authority may summon persons to participate in the actions undertaken and to give explanations and testimony personally, through an attorney-in-fact, in writing or in the form of an electronic document, if it is necessary to decide the matter or perform official actions. [...]

Article 67. [Actions recorded in the minutes] § 1. Each public administration authority shall draw up concise minutes of any action undertaken in the proceedings having vital significance for deciding the matter, unless the action has been in other manner recorded in writing.

§ 2. In particular, the minutes shall record:

2) the examination of a party, witness and expert;

Issue No. 8 “The nihility of an administrative act, including the legal consequences of holding the act void”

The concept of so-called non-act or non-existent legal act is not regulated by Polish administrative law, but it is known in literature and case law, also in the field of civil law. The doctrine indicates that the sanction of invalidity is attributed to existing legal actions. It is argued that non-existent decisions occur when the behavior only appears to be a legal act, and when the external factual state of the legal act does not exist, i.e. action that is recorded in the consciousness of the environment as a specific legal act. In the first case, there is a will to take action, but one of its constitutive conditions is missing. In the second, there is no such appearance, because the entities performing the activities had no intention of producing legal effect.

 

Therefore it is necessary to distinguish a non-act from invalid decisions. The constitutive elements of a non-existent legal act, including acts of applying the law, are the occurrence of a factual event that only creates the appearance of a legal act because of the form, time and place of origin, and the entity that took it. This situation can arise in two cases: when a decision was issued in non-existent proceedings or when a non-existent decision was issued in legally existing proceedings. The first case occurs when the entity that undertook or conducts the proceedings is unable to conduct the proceedings or there is a legitimate entity, but no party exists. The second case occurs when the decision has no external legal features or has not been served on the party.

The non-act does not bind either the authorities or the party, hence, to avoid it, it is not necessary to ascertain its defects before its effects. However, an invalid decision is binding until it is annulled pursuant to art. 158 of the Code of Administrative Procedure. Due to these effects, it is important to correctly distinguish between invalid decisions and non-existent legal acts. On the basis of applicable legal regulations, it has been assumed that the most severe sanction that may affect existing acts is the sanction of invalidity. Therefore, even decisions affected by defects of invalidity benefit from the presumption of binding force until they are eliminated from legal circulation. This excludes the adoption of the concept of absolutely invalid administrative decisions, unless the concept is taken to treat non-existent decisions.

 

It is worth noting, however, that despite the thesis going towards a non-existent legal act, the Polish Supreme Administrative Court prefers to use the institution of annulment in the aforementioned case. Both in the doctrine and in the jurisprudence there is excessive restraint in questioning the legal existence of an administrative decision, considering it to be a non-existent act even when it clearly deviates from the normative model. The reason for this is the legislator's silence as to the reasons for true nullity.

Issue No. 9 “The grounds, procedure and consequences of the repeal of legal and illegal administrative acts”

The administrative decision is correct if it jointly meets two conditions:

1) it complies with the norms of substantive administrative law;

2) it was issued in accordance with the norms of procedural administrative law.

 

The decision violating substantive or procedural norms is faulty. In the classic doctrine of administrative law, the concept of the correctness of an administrative decision was based on compliance with the norms of substantive administrative law and procedural administrative law in force as of the date of the decision. The modern concept also takes into account the issuance of an administrative decision based on an unconstitutional normative act, and in the scope of an administrative decision issued on the basis of a European law provision declared by the European Court of Justice as invalid, as well as defective in its interpretation.

 

The administrative decision takes advantage of the presumption of correctness attribute, which means that it is force (is valid) until has been properly eliminated from the legal turnover. This applies to all types of faulty decisions. The recognition of the presumption of correctness of an administrative decision, which can be refuted only in the appropriate manner, means that the existence of administrative decisions invalid by virtue of law in the Polish legal system is questioned. The construction of invalidity by virtue of law itself can be applied only if the legislator expressly provides in the legal provision such an exception from the presumption of correctness of the decision.

 

Legal regulations contained in the Code of Administrative Procedure are subject to the presumption of correctness of decisions and they do not introduce any exceptions in this respect. Elimination of an invalid decision from existence can only occur by issuing a decision that annuls such decision. This also applies to the decision containing the defect causing its invalidity by virtue of separate legal provisions to which refers Art. 156 § 1 item 7 of the Code of Administrative Procedure

The institution of annulment is primarily of a substantive nature by establishing a sanction for annulment of a decision affected by severe qualified defects. The institution of annulment of a decision creates the legal possibility of elimination from existence decisions affected primarily by substantive defects, and therefore defects causing incorrect shaping of the substantive law relationship, both in subjective and objective terms.

 

The institution of annulment of a decision is also of a procedural nature by normalizing the mode of application of the sanction of invalidity and in this respect it is not uniform, because it contains both elements characteristic for an appeal, a supervision measure as well as to a limited extent - revocation of a decision.

 

Article 156. [Grounds] § 1. A public administration authority shall declare a decision invalid if:

1) the decision has been issued in violation of provisions governing competence;

2) the decision has been issued without legal basis or with gross infringement of law;

3) the decision concerns a matter already decided under another final decision or a matter which has been disposed of without notice by the authority;

4) the decision has been addressed to a person not being a party to the matter;

5) the decision was unenforceable on the day of its issuance and the unenforceability has been permanent,

6) if enforced the decision would cause an offence punishable by penalty; or

7) the decision contains a defect which renders the decision invalid by operation of law.

 

§ 2. The decision may not be declared invalid for reasons specified in § 1 subsections 1, 3, 4 and 7, if a period of 10 years has elapsed from the day the decision has been served or pronounced or if the decision caused irreversible legal consequences.

 

Article 157 [Competent authority; form] § 1. In cases specified in Article 156, the decision may be declared invalid by the authority of higher level, and if the decision was issued by a minister or self-government appeal board – by the minister or the board.

 

§ 2. The proceedings to declare a decision invalid may be initiated upon demand of a party or ex officio. [...]

 

Article 158. [Continued] § 1. The ruling with respect to the declaration of invalidity of a decision shall be issued by way of a decision. The provisions on disposal of the matter without notice by the authority do not apply.

 

§ 2. If it is inadmissible to declare a decision invalid due to the circumstances specified in Article 156 § 2, the public administration authority shall only rule that the decision has been issued contrary to the law and shall indicate circumstances which did not permit to declare the decision invalid.

 

Article 159. [Stay of enforcement] § 1. A public administration authority competent to declare a decision invalid shall ex officio or upon demand of a party order a stay of enforcement of the decision, if it is probable that the decision contains one of the defects specified in Article 156 § 1.

 

§ 2. A party may file a complaint against an order staying the enforcement of the decision.

 

Article 161. [Special powers] § 1. A minister may at any time and within the necessary scope quash or amend any final decision, if a threat to human life or health or significant damage to national economy or material interest of the State may not be eliminated in any other manner.

§ 2. With regard to decisions issued by the authorities of self-government units in matters constituting government administration tasks, the powers specified in § 1 shall be also vested in a voivode.

 

§ 3. A party which suffered damage as a result of a decision being quashed or amended shall have a claim for damages for the loss actually suffered against the authority which quashed or amended the decision; the authority by means of a decision shall also rule on the claim for damages.

 

§ 4. The claim for damages shall be time-barred after three years from the day the decision quashing or amending the original decision became final. [...]

Issue No. 10 “Material breaches of procedure of exercising of the administrative procedure, entailing the repeal of an administrative act”

Reopening of the procedure.

Reopening of the procedure is one of the two extraordinary remedies available to a party against a final administrative decision. The remedy is granted when the final decision is so defective that it is justified to depart from the principle of durability of administrative decisions. Pursuant to Article 145.1 of the CAP, procedure in a matter concluded with a final decision shall be reopened if major defects of the procedure have been discovered. Such defects have been fully listed in the above provision. There are eight such major defects, including in particular: (a) the fact that the decision was issued as a result of a criminal offence, (b) the fact that a party, not due to its fault, did not participate in the procedure, and (c) the fact that new factual circumstances or evidence came to light. Other major defects were added to the list in: Article 145a of the CAP, i.e. if the Constitutional Tribunal ruled that a normative act on the basis of which the decision had been issued violated the Constitution (or international treaty) and Article 145b, i.e. if the court ruled that the principle of equal treatment had been breached in compliance with the Act of 3 December 2010 on implementation of certain European Union provisions regarding equal treatment.

 

The procedure may be reopened ex officio or upon demand of a party (and only upon demand of a party in the case described under letter (b) above).

 

The application for reopening the procedure should be submitted to the authority which issued the decision in the first instance within one month of the day on which the party discovered the circumstance constituting the ground for reopening the procedure. The procedure is reopened on the basis of an order; the refusal to reopen the procedure is effected by means of a decision.

 

The reopened procedure may be divided into two stages: (1) stage one – when the authority evaluates the existence of the grounds for reopening and (2) stage two – when the authority rules as to the merits of the matter. The authority having competence in this regard is the authority which issued the decision in the last instance. When resolving the matter, the authority issues a decision in which: (a) refuses to quash the original decision, if no defects listed in Article 145 § 1 exist, or (b) the authority quashes the original decision and issues a new decision resolving the matter as to the merits.

 

The original decision may not be quashed if a specific period has elapsed from the day the decision has been issued (e.g. with regard to the defect described in point (b) above – a period of 5 years, as to other defects – a period of 5 or 10 years). Also the decision shall not be quashed if, as a result of reopening of the procedure, only a decision corresponding to the merits of the original decision could have been issued. It is also possible to reopen the procedure concerning the issuance of certain orders.

 

Article 145. [Grounds] § 1. In a matter concluded with a final decision the proceedings shall be reopened if:

1) evidence upon which factual circumstances material to the matter have been ascertained turned out to be false;

2) the decision was issued as a result of a criminal offence;

3) the decision was issued by an employee who or a public administration authority which should have been disqualified pursuant to Articles 24, 25 and 27;

4) a party, not due to his fault, did not participate in the proceedings;

5) new factual circumstances material to the matter or new evidence existing on the day the decision had been issued came to light, of which the authority issuing the decision was not aware;

6) the decision had been issued without obtaining a position of another authority required by law;

7) a preliminary issue was resolved by a competent authority or common court contrary to the findings made at the issuance of the decision (Article 100 § 2);

8) the decision had been issued on the basis of another decision or court judgment which had been quashed or reversed.

 

§ 2. The proceedings may be reopened on the grounds specified in § 1 subsections 1 and 2 before the evidence has been found false or the offence has been found to be committed on the basis of a judgment of a court or other authority, if it is evident that the evidence had been falsified or the offence had been committed and the reopening of the proceedings is indispensable in order to prevent a threat to human life or health or significant damage to the public interest.

 

§ 3. The proceedings may be reopened on the grounds specified in § 1 subsections 1 and 2 if the proceedings before the court or other authority may not be initiated due to the lapse of time or due to other reasons specified in the provisions of law.

 

Article 145a. [Reopening in case of violation of the Constitution] § 1.    The demand to reopen the proceedings is also admissible, if the Constitutional Tribunal ruled that a normative act violated the Constitution, international treaty or statute on the basis of which the decision had been issued.

 

§ 2. In a case specified in § 1, the demand to reopen the proceedings shall be submitted within one month of the day the judgment of the Constitutional Tribunal takes effect.

 

Article 145b. [Reopening of the Proceedings] § 1. The demand to reopen proceedings is also admissible, if the court ruled that the principle of equal treatment was breached as set out in the Act of 3 December 2010 on Implantation of Certain European Union Provisions on Equal Treatment (Journal of Laws No. 2016, item 1219), and if the breach of this principle affected the final decision in the matter.

§ 2. In the case specified in § 1, the demand to reopen the proceedings shall be submitted within one month of the day the ruling of the court became legally binding.

 

Article 146. [Limitations to quash the decision] § 1. The decision may not be quashed for reasons specified in Article 145 § 1 subsections 1 and 2 if a period of 10 years has elapsed from the day the decision had been served or pronounced, and for reasons specified in Article 145 § 1 subsections 3-8 and Article 145a and Article 145b, if a period of 5 years elapsed from the day the decision had been served or pronounced.

 

§ 2. The decision shall not be quashed also if, as a result of the reopening of the proceedings, only a decision corresponding to the merits of the original decision could have been issued.

 

Article 147. [Proceedings ex officio and upon application] The proceedings may be reopened ex officio or upon demand of a party. For reasons specified in Article 145 § 1 subsection 4 and Article 145a and Article 145b the proceedings may be reopened only upon demand of a party

 

Article 148. [Time limit] § 1. The application for reopening the proceedings shall be submitted to the public administration authority which issued the decision in the first instance, within one month of the day the party became aware of the circumstance constituting the ground for reopening of the proceedings.

 

§ 2. The time limit to submit the application for reopening of the proceedings for the reason specified in Article 145 § 1 subsection 4 shall begin to run on the day the party became aware of the decision.

 

Article 149. [Reopening; refusal to reopen] § 1. The proceedings shall be reopened by means of an order.

 

§ 2. The order shall constitute a basis for the competent authority to conduct the proceedings regarding the grounds for reopening and the disposal of the matter as to the merits.

 

§ 3. The refusal to reopen the proceedings shall be effected by means of an order.

 

§ 4. The order specified in § 1 shall be subject to complaint..

 

Article 150. [Competent authority] § 1. In matters specified in Article 149 the public administration authority which issued a decision in the matter in the last instance shall be competent.

 

§ 2. If the proceedings should be reopened due to actions of the authority specified in § 1, the decision concerning the reopening of the proceedings shall be taken by the authority of higher level which shall simultaneously designate the authority competent in matters specified in Article 149 § 2.

§ 3. The provisions of §  2 shall not apply, if the decision in the last instance was issued by a minister and – in matters for which the self-government units are competent – by the self-government appeal board.

 

Article 151. [Reconsideration] § 1. The public administration authority referred to in Article 150, after conducting the proceedings specified in Article 149 § 2, shall issue a decision:

1) refusing to quash the original decision, if the authority finds no grounds for quashing the decision on the basis of Articles 145 § 1, Article 145a or Article 145b; or

2) quashing the original decision, if the authority finds grounds for quashing the decision on the basis of Articles 145 § 1, Article 145a or Article 145b and the authority shall issue a new decision concluding the matter as to the merits.

§ 2. f as a result of reopening the proceedings the original decision may not be quashed due to reasons specified in Article 146, the public administration authority may only rule that the challenged decision was issued in contravention to the law and the authority shall indicate circumstances due to which the authority did not quash the decision.

§ 3. In matters referred to in § 1, the provisions on disposal of the matter without notice by the authority do not apply.

Issue No. 11 “Fulfilling of administrative acts”

Enforceability.

 

A decision shall not be enforceable before the end of the time limit to file an appeal, unless one of the following exceptional circumstances occurs: (a) the decision has been appended with an immediate enforceability clause (Article 108 of the CAP – e.g. due to particularly significant interests of the parties), or (b) the decision complies with demands of all the parties (Article 130 § 4), or (c) resulting from specific provisions. If an appeal has been filed within the prescribed time limit, enforceability shall be stayed. That means that the decision becomes enforceable on the day it becomes final or if one of the above described circumstances for earlier enforcement has occurred.

 

Finality.

 

Decisions which may not be appealed against in the administrative course of instance are final. Each final decision is therefore enforceable. For practical reasons, it is worth noting the fact that the decision becomes final after the time limit to file the appeal ends; the time limit shall be calculated as of the day the decision has been served on the last of the parties participating (identified) in the proceedings. The decision becomes final if none of the parties participating in the proceedings files an appeal within the prescribed time limit.

 

Those persons who objectively should have had the status of a party but for various reasons have not been identified as parties and considered in the proceedings may attempt to challenge the decision after the end of the prescribed time limit, but only by means of reopening the proceedings.

 

Appending the document of the decision with a so-called “enforceability clause” is another important issue. This formality is very important for practical reasons, and the CAP does not directly provide for the rules governing the clause. It is a prevailing practice to append the decision with the clause (usually in the form of a stamp) after the lapse of the time limit to file any potential appeals (14 statutory days extended additionally by, depending on the local customs, about 5 days necessary for the letter to reach the addressee) which may be submitted by the parties identified in the proceedings (i.e. those, on whom the decision has been served). Such procedure has not been provided for in the Code, however, it is not defective, and the appropriate legal basis therefore may be found in the provisions of the Code governing the issuance of certificates.

 

Article 16. [Principle of durability of an administrative decision] § 1. Decisions which are not appealable in the administrative course of instance or which are not subject to review shall be final. Such decisions may be quashed, amended, declared invalid or the proceedings may be reopened only in instances provided for in the Code or separate statutes.

 

§ 2. Claims may be filed with an administrative court on grounds of violation of law, on terms and according to procedures specified in separate statutes.

§ 3. Final decisions that are not appealable to the court shall be legally binding.

 

Article 108. [Grounds for immediate enforceability] § 1. A decision which may be appealed against may be appended with an immediate enforceability clause, if it is indispensable to protect human health or life or to protect national assets from severe damage or due to other public interest or especially important interest of a party. In the last case the public administration authority, by means of an order, may request that the party submit appropriate security.

 

§ 2. The decision may be appended with the immediate enforceability clause also after the decision has been issued. In such case the authority issues an order which shall be subject to a complaint filed by the party.

 

Article 110. [Consequences of service; decisions given orally] § 1. The public administration authority which issued the decision shall be bound by the decision from the moment the decision was served or communicated orally, unless the Code provides otherwise.

 

§ 2. In case the matter has been disposed of without notice by the authority, the public administration authority shall be bound by the determination made in such a manner as from the day following the day when the time limit expires for the issuance of a decision or order concluding the proceedings or for filing an opposition, unless the Code provides otherwise.

 

Article 130. [Effect upon enforceability] § 1. The decision shall not be enforceable before the end of the time limit to submit the appeal.

 

§ 2. The submission of the appeal shall stay the enforcement of the decision.

 

§ 3. The provisions of § 1 and § 2 shall not apply if:

1) the decision has been appended with an immediate enforceability clause (Article 108);

2) the decision shall be immediately enforceable by operation of law.

 

§ 4. The decision is subject to enforcement before the expiry of the time limit for filing an appeal, if it is compliant with the demands of all the parties or if all the parties waived their right of appeal.

Issue No. 12. “Administrative agreement”

The administrative agreement is one of the non-controlling forms of administration. The agreement is a bilateral or multilateral act in the field of administrative law, carried out by entities performing public administration, and coming into effect on the basis of consistent declarations of will of these entities. Agreements are similar to civil law transactions because they are based on the principle of equality of parties. They are concluded between entities not related by organizational or service subordinate ties.

The agreement distinguishes itself from civil law transactions primarily by its object, which lies in the sphere of administrative law, not civil law.

 

The subject of the agreement are obligations (but not in the civil law sense) regarding the implementation of public administration tasks. Agreements provide for the joint performance of tasks imposed on entities that are parties to the agreement, or the transfer of certain tasks from one entity to another. On the basis of agreements, administrative-legal relations are created, which differ, however, from classical relations. Namely, relations are characterized by equality of parties. Most often, the subject of the agreements is the broadly understood cooperation of various types of public administration units, sometimes also the cooperation of these units with social and cooperative organizations. The agreements, however, are not internal activities of public administration. As a result of the agreement, the tasks of one body may be transferred to another, or the employees of one body may be authorized by the other body to handle administrative matters on its behalf.

 

The parties to the administrative agreement may be any entities of administrative law, and therefore also entities without legal personality. However, in order to be able to speak of an administrative agreement, at least one of the parties to the agreement should be an entity performing public administration functions.

 

The institution of the administrative agreement is known to Polish law, however, the provisions allowing or ordering its conclusion are few. It is connected with the lack of specification of the procedure in which a possible dispute between the parties to the agreement can be settled, as well as the lack of clearly defined consequences of failure to meet the obligations entered into in the agreement. An example of the above-mentioned provisions is Art. 74 of the Act of 8 March 1990 on communal self-government (Journal of Laws 2019.506 c.t.) and art. 20 of the Act of 23 January 2009 on the Voivode and Government Administration in the Voivodship (Journal of Laws 2019.1464 c.t.)

Art. 74. [Inter-commune agreements]

1. Communes may conclude inter-commune agreements regarding the entrustment of one of them with public tasks specified by them.

2. The commune performing public tasks covered by the agreement assumes the rights and obligations of other communes related to the tasks entrusted to it, and these communes are required to participate in the costs of implementing the entrusted task.

Art. 20. [Entrusting matters falling within the competence of a voivode]

1. The voivode may entrust the conduct of, on his behalf, certain matters within its jurisdiction to local government units or other self-government bodies operating in the voivodship, heads of state and self-government legal entities and other state organizational units operating in the voivodship.

2. The entrustment takes place on the basis of an agreement between the voivode, respectively, with the executive body of the local self-government unit, the competent body of another local self-government or the head of a state and local self-government legal person or other state organizational unit referred to in sec. 1. The agreement, together with its annexes constituting its integral part, is subject to announcement in the voivodship official journal.

3. In the agreement referred to in sec. 2, rules are laid down for the voivode to exercise control over the proper performance of entrusted tasks.

It should be noted, that, there are no provisions regulating administrative agreement in Polish Administrative Procedure Code, however this code regulates the institution of settlement.

 

In a matter pending before a public administration authority, parties may reach a settlement if the nature of the matter allows therefor, if it contributes to the acceleration or facilitation of the proceedings, and if it does not violate any provision of the law. The settlement is an agreement made in writing between parties to the administrative proceedings who are in dispute (have opposing interests). Such a settlement is a substitute to an administrative decision in the matter. The fact that the parties reached a settlement is recorded in a protocol. The settlement shall be approved by means of an order within seven days of the day it has been made. Disposal of administrative matters by way of a settlement is very rare and, in practice, are of marginal importance.

 

Settlement occurring in the provisions of administrative law may have the form of two types: settlement between the authority and the party and settlement between the parties to the proceedings, concluded before the authority. The Code of Administrative Procedure regulates the second form of settlement.

The settlement is not the main form of settling the case, which results from the assumptions of the legal regulations contained in Art. 114-122 of the Code of Administrative Procedure. Pursuant to these provisions, the conditions for concluding a settlement by the parties, which will become a form of settlement, are as follows:

1) the individual case must be pending before a public administration body, because the settlement may only be concluded during the administrative procedure;

2) at least two parties are involved in the case, whose legal interest or duty is of this nature, that they allow negotiations between them and concessions as to the result of the case mentioned in art. 13 § 1 of the CAP referred to as contentious issues;

3) the settlement will not be a circumvention of the specific requirements set for the settlement of the case because of the obligation to cooperate with public administration bodies;

4) settlement is not excluded by separate provisions;

5) the content of the settlement does not violate the requirements of the public interest or the legitimate interest of the parties.

The settlement corresponding to these premises, after its approval by the administrative authority, replaces the decision in the case, because pursuant to Art. 121 of the CAP, the approved settlement has the same effects as the decision issued during the administrative procedure.

Article 114. [Admissibility of a settlement] In a pending matter the parties may reach a settlement, if the nature of the matter so permits and if it is not contrary to any specific provisions.

 

Article 115. [Deadline to settle] The settlement may be concluded before the public administration authority before which the proceedings in the first instance or appellate proceedings have been pending, until the authority issues a decision in the matter.

 

Article 116. [Setting the time limits] § 1. The public administration authority shall postpone the issuance of the decision and shall set a time limit for the parties to settle, if grounds exist for the conclusion of such settlement and shall instruct the parties on the manner and effects of the settlement.

 

§ 2. If one of the parties provides notice that he is no longer willing to reach the settlement or fails to observe the time limit set in accordance with § 1, the public administration authority shall dispose of the matter by way of a decision.

 

Article 117. [Form and contents] § 1. The settlement shall be prepared by an entitled employee of the public administration authority in writing or in the form of an electronic document in accordance with the joint statement by the parties. In case the settlement is prepared in writing, the statements shall be submitted to the entitled employee of the authority.

 

§ 1a. Contents of the settlement:

1) the particulars of the public administration authority before which the settlement has been reached and of the parties to the proceedings;

2) the date of the settlement;

3) the subject matter and contents of the settlement; and

4) the si