Outline of the history of administrative courts in Poland

What complicates the situation is the fact that in the late 18th century Poland lost its sovereignty, so virtually throughout the 19th century we should be talking about foreign influence and legislation on Polish territory. Inevitably, in different partitions (into which Poland was divided) different legal systems were in force. Considering this situation, we should pay attention only to a few select events in administrative jurisdiction before 1918, when Poland regained its independence.

On most of the Polish territory occupied by the Austro-Hungarian Empire, Austrian legislation was introduced, and on a small part Hungarian legislation. Without a doubt, the greatest influence on future Polish law was the operation of the Administrative Court with its headquarters in Vienna, which is an example of one-instance administrative jurisdiction. The strong influence of Austrian practice on Poland after regaining its independence in 1918 can partly be explained by the fact that almost 10 percent of the judges of the Court in Vienna at the turn of the 19th century were Poles.

 

After the declaration of independence by Poland in 1918 it was not possible to immediately create a native administrative jurisdiction, so for the needs of the time models inherited from the systems of foreign invaders were modified. Still and all, this state of affairs was considered a transition that could not be reconciled with the need for creating the legal system of an independent nation. In 1922 was adopted the Act of 3 August 1922 on the High Administrative Tribunal. According to the provisions of this Act a Supreme Administrative Court was created, for adjudication on the legality of orders and decisions falling within the administration of the Government, and local government. The SAC was the only instance of judicial review entitled to recognize complaints on the adjudications and judgments issued in the last instance by the administrative authorities of the central or local government, as long as this action did not exclude rights in respect of submitting a complaint. The Supreme Administrative Court had no right to examine the validity of laws duly announced. The wording of the law indicated that such a one-instance model was considered a transitional state; however, up until the outbreak of World War II in 1939 there were no fundamental changes in the judicial system.

 

After the end of World War II and in the beginning of the years of the socialist changes in Poland, administrative jurisdiction was not revived. In the course of the next thirty-five years ideas and projects were submitted, but the Government did not see the point in setting limitations for themselves. It was only on 31 January 1980 with the Law on the Supreme Administrative Court amending the Act that the Code of Administrative Procedure was passed. The enactment of this law was the beginning of a new stage, which actually still continues today. It is of little significance that the contemporary beginning has its roots back in socialist times, although in the initial period the competence of the courts was quite limited. In fact, the Supreme Administrative Court began its operations on 1 September 1980. Article 1 of the Act bringing to life the Supreme Administrative Court specified that it operated in Warsaw and city branches created for one or more provinces. It was a one-instance court, although having branches in other cities. The Court had jurisdiction over complaints against administrative decisions and procedures laid down in the Code of Administrative Procedure and other regulations. The newly created Court was supervised by the Supreme Court. In accordance with § 1 of Article 196 of the Code of Administrative Procedure, in the former wording, the decision of the state administration could be appealed to an administrative court because of its illegality. It should be stressed that the local government had not yet been reactivated. In turn, § 2 of Article 196 of the Code exhaustively lists the decisions that could be appealed, e.g. in matters of construction works, prices, public roads, expropriation of real estate, and social affairs, among others. In other words, the Act did not provide for a general clause on the right of appeal against an administrative decision in principle, but provided a list of decisions against which the appeal was allowed.

 

Only in 1990 were there significant changes, consisting primarily in the introduction of a general clause. According to the amended § 1 of Article 196 of the Code of Administrative Procedure, the decision of the state administrative body could be appealed to an administrative court on the grounds of its illegality. The approach and the scope of the control had clearly changed, and challenging any administrative decision now happened as a rule.

 

The next step in reform was the adoption on 11 May 1995 of the comprehensive Act on the Supreme Administrative Court, which entered into force on 1 October 1995. The Act can be called comprehensive because it regulated the organization of the Supreme Administrative Court, its jurisdiction and its scope, as well as court proceedings. The provisions concerning judicial and administrative proceedings were excluded from the Code of Administrative Procedure. Nevertheless, the Court was still a single instance, however the Court acted in Warsaw and in city branches of the Court created for one or more provinces, so consequently the city branches of the Court could not be considered separate courts of first instance.

 

The adoption of the new Constitution of the Republic of Poland of 2 April 1997, which entered into force on 17 October of the same year, was a stimulus for subsequent changes in administrative jurisdiction. Due to Article 176 of the Constitution “Court proceedings shall have at least two stages.” The same article also states that: “The organizational structure and jurisdiction as well as procedure of the courts shall be specified by statute.” In addition, in accordance with Article 185 of the Constitution, “The President of the Supreme Administrative Court shall be appointed by the President of the Republic for a 6-year term of office from among candidates proposed by the General Assembly of the Judges of the Supreme Administrative Court.” The first Act – the Law on the System of Administrative Courts – was adopted on 25 July 2002, the Act on Proceedings before Administrative Courts and the Act on Proceedings before Administrative Courts, Rules (implementing regulations) introducing the Act on Proceedings before Administrative Courts were adopted on 30 August 2002. All three acts reforming administrative jurisdiction in Poland entered into force on 1 January 2004. From that moment the era of two instance administrative courts began in Poland. First of all it should be mentioned that in Poland, in the light of the Constitution, the judiciary consists of two separate branches or hierarchies of courts:

– courts of general jurisdiction and military courts headed by the Supreme Court, and

– administrative courts headed by the Supreme Administrative Court.

 

The structure of administrative courts consists of voivodship (regional) administrative trial courts, established to consider all court-administrative cases not reserved for the Supreme Administrative Court, and the Supreme Administrative Court, established to consider appeals against the judgments of the voivodship administrative courts. A Provincial Administrative Court is formed for each province or for a number of provinces. Thus in contrast with the general judiciary, there are no district courts. Sixteen voivodship administrative courts exist in Poland. It should be noted that the supreme supervision over the administrative activity of the administrative courts is exercised by the President of the Supreme Administrative Court. This is of great importance because the administrative court cannot in the slightest way be dependent on the government administration. Additionally, the administrative courts are not supervised by the Supreme Court. On the other hand, courts of general jurisdiction in the field of administration (not as to adjudication) are supervised by the Ministry of Justice.

 

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.