Principles of administrative proceedings.

The Polish administrative proceedings are regulated by the Law on Proceedings Before Administrative Courts (LPBAC). In this law, similar to Code of Civil Procedure, general provisions were introduced (Articles 1-12), in which there are stipulated regulations for administrative court cases, administrative court proceedings, entities participating in administrative court proceedings, but also relating to the effectiveness of the principle of equality of participants in proceedings, the principle of open examination of cases and transparency for the parties to the case files, as well as the binding force of judgments of criminal courts.

 

It must be noted that there is a strict link between Polish administrative proceedings and civil proceedings. The doctrine of civil procedural law distinguishes supreme principles of justice and procedural rules, as well as procedural demands of a certain normative significance. Introduction to the Law on Proceedings Before Administrative Courts of a significant number of provisions derived from the Code of Civil Procedure - and what is very important - the transfer of them in certain complexes regulating procedural institutions and closely related procedural issues, requires referring to the scope of the rules of civil procedure when examining and adjudicating in administrative court cases.

 

The legal writers pointed out the following principles of civil exploratory proceedings:

1) the principle of equality (equal rights) of parties and participants in proceedings,

2) the principle of availability,

3) the adversarial principle (contradictory proceedings),

4) the principle of concentration (focus) of process material,

5) principle of judicial leadership,

6) the principle of free assessment of evidence,

7) the principle of directness,

8) the principle of oral use,

9) the principle of moderate procedural formalism.

 

To this catalog should be attached both the guiding principle of substantive truth, as well as the fragmentary principle of reimbursement of costs of proceedings, because the new assumptions regarding the regulation of reimbursement of procedural costs, including between parties, have acquired great significance in two-instance proceedings in administrative court cases.

 

The principle of material truth must be applied within the limits of the administrative court jurisdiction set out in Article 1 § 1 and 2 the Law of 25th July 2002 on the System of Administrative Courts (Dz.U.2018.2107 c.t.) and in Art. 3-5 of the Law on Proceedings Before Administrative Courts.

Art. 1. § 1. Administrative courts shall administer justice through reviewing the activity of public administration and resolving disputes as to competence and jurisdiction between local government authorities, appellate boards of local government, and between these authorities and government administration authorities.

 

§ 2. The review referred to in § 1 shall be performed from the point of view of conformity with law, unless otherwise provided by statute.

 

Art. 3. § 1. Administrative courts shall exercise review of the activity of public administration and employ means specified in statute.

 

§ 2. The review of the activity of public administration by administrative courts shall include adjudicating on complaints against:

1) administrative decisions;

2) orders made in administrative proceedings, which are subject o interlocutory appeal or those concluding the proceeding, as well as orders resolving the case in its merit;

3) orders made in enforcement proceedings and proceedings to secure claims which are subject to an interlocutory appeal, with the exclusion of the orders of a creditor on the inadmissibility of the allegation made and orders dealing with the position of a creditor on the allegation made;

4) acts or actions related to public administration regarding rights or obligations under legal regulations other than acts or actions specified in points 1–3, excluding acts or activities taken in the course of administrative proceedings specified in the Act of 14th June 1960 – Code of Administrative Proceedings [...], proceedings specified in sections IV, V and VI of the Act of 29th August 1997 – Tax Ordinance [...], proceedings referred to in section V in chapter 1 of the Act of 16th November 2016 on the National Tax Administration [...] and proceedings to which the provisions of the quoted acts apply;

4a) written interpretations of tax law issued in individual cases, protective tax opinions and refusal to issue protective tax opinions;

5) local enactments issued by local government authorities and territorial agencies of government administration;

6) enactments issued by units of local government and their associations, other than those specified in subparagraph 5, in respect of matters falling within the scope of public administration;

7) acts of supervision over activities of local government authorities;

8) lack of action or excessive length of proceedings in the cases referred to in subparagraphs 1–4 or excessive length of proceedings in the case referred to in subparagraph 4a;

9) lack of action or excessive length of proceedings in cases relating to acts or actions other than the acts or actions referred to in subparagraphs 1–3, falling within the scope of public administration and relating to the rights or obligations arising from the provisions of law, taken in the course of the administrative proceedings referred to in the Code of Administrative Procedure of 14th June 1960 and procedure referred to in sections IV, V and VI of the Tax Ordinance Act of 29th August 1997 as well as proceedings to which the provisions of the abovementioned acts apply.

 

§ 2a. Additionally, administrative courts shall issue rulings in appeals against decisions issued under Article 138 § 2 of the Act of 14th June 1960 – Code of Administrative Procedure.

 

§ 3. Administrative courts shall also adjudicate in respect of matters where provisions of specific statutes provide for judicial review, and shall employ means specified in those provisions.

 

Art. 4. Administrative courts shall resolve jurisdictional disputes between local government authorities and between self-government appellate boards, unless a separate statute provides otherwise, and shall resolve disputes as to competence between local government authorities and government administration agencies.

 

Art. 5. Administrative courts shall have no competence in matters:

1) ensuing from organisational superiority or subordination in relations between public administration authorities;

2) ensuing from official submission of subordinates to superiors;

3) relating to refusal to appoint for an office or to designate to perform a function in public administration authorities, unless such obligation of appointment or designation ensues from the provision of law;

4) relating to visas issued by consuls, except for visas:

(a) referred to in Article 2 points 2 to 5 of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ L 243, 15.9.2009, p. 1, as amended),

(b) issued to a foreigner being a family member of a national of the European Union Member State, a family member of a national of a Member State of the European Free Trade Association (ETFA) – a party to the European Economic Area Agreement or a family member of a national of the Swiss Confederation, within the meaning of Article 2(4) of the Act of 14 July 2006 on the Entry into, Residence in and Exit from the Republic of Poland of Nationals of the European Union Member States and their Family Members [...];

5) relating to local border traffic permits issued by consuls.

 

The principle of free assessment of evidence is is expressly subject to limitation by virtue the Law on Proceedings Before Administrative Courts, which applies to evidence from documents constituting the administrative case file forwarded to the court (Article 54 § 2), court files, supplementary evidence from documents (Article 106 § 3) and notorious facts (Article 106 § 4).

 

Art. 54.

§ 2. The authority referred to in § 1 shall transfer the complaint, together with complete and ordered case files and the response to the complaint, to a court within thirty days of its receipt. The minister competent for foreign affairs shall forward to the court the complaint lodged through the intermediary of the consul together with complete and orderly case files and the reply to the complaint, in paper or electronic version, within sixty days of the same being received by the consul.

 

Art. 106.

§ 3. The court may, on its own motion or at the request of the parties, request additional documentary proof, if this is necessary to resolve substantial doubts and will not extend excessively the proceedings on the case.

§ 4. The court shall consider commonly known facts, even if they are not invoked by the parties.

§ 5. The provisions of the Code of Civil Procedure shall apply as appropriate to the evidentiary proceedings referred to in § 3.

 

The principle of availability has been explicitly stated in Art. 63 of the Law on Proceedings Before Administrative Courts regarding the instances of initiating administrative court proceedings at the request of various entities, and also with regard to disposing of the complaint and admissibility of its consideration at various stages of the action after the complaint has been lodged.

 

Art. 63. Court proceedings shall be initiated upon filing of an application, where so is provided by statute.

 

Several regulations have been included in general provisions of the Law on Proceedings Before Administrative Courts, some of which may be treated as the rules of conduct, while others may be considered as postulates of the nature as directives on normative effects.

 

In art. 6 of LPBAC the court was obliged to take care of the procedural efficiency of the principle of equality by providing legal information to parties involved in the process without professional legal assistance. The provision was transferred to LPBAC from art. 5 of the Code of Civil Procedure, however, it has a different significance in maintaining the principle of equality of parties in a court-administrative matter than in a civil case. In most administrative court cases, the complainant, who has an administrative body as a procedural opponent, whose permanent task is to consider administrative matters and apply the law in terms of jurisdiction and competence, is usually the weaker party to the dispute regarding the legality of an act. Therefore, the importance of legal regulation serving to equalize the procedural position of the parties is significant.

Art. 6. An administrative court shall, if necessary, provide the parties to a proceeding that are not represented by an advocate, legal adviser, tax adviser or a patent attorney with necessary information on procedural steps and the consequences of their omissions.

The principle of openness of administrative court proceedings is stipulated in Art. 10 of LPBA has a narrower scope than that regulated in Art. 9 of the Code of Civil Procedure, which extends beyond the examination of the case to the openness of court files of the case for parties and participants in the proceedings. LPBAC regulates the right of parties to inspect the case files, moreover - consisting of administrative files submitted by an administrative body (previously available to the party in the administrative procedure) and court files containing documents collected in court pursuant to the provisions of LPBAC; the courts have departments of judicial information providing parties with access to the case file according to the court office rules.

Art. 10. Cases shall be heard in public, unless a special provision provides otherwise.

Postulate speed of proceedings resulting from Art. 7 of LPBAC, considered in isolation from its other regulations, as well as the Law on System of Administrative Courts, may present itself as vague. This postulate acquires the full normative content only in connection with some provisions concerning e.g. court meetings (Article 92 § 2, Article 107, 108, 111 § 1 and 2, Article 112 of LPBAC), with the legal regulation of simplified proceedings (Article 119-121 of LPBAC), as well as with the provisions of Art. 22 § 3 and art. 35 § 1 of the Law on System of Administrative Courts on supervision of administrative activities of courts.

 

Art. 7. An administrative court should undertake actions aimed at quick settlement of the case and should try to decide it at the first sitting.

 

Art. 92.

§ 2. Absence of a public prosecutor, the Commissioner for Human Rights (Ombudsman) or the Commissioner for Children’s Rights from the trial shall not stay the hearing of the case by the court.

 

Art. 107. Failure by parties or their agents to attend a trial shall not stay the hearing of the case.

 

Art. 108. In case of absence of a party or its agent from the trial, the presiding judge or a judge-rapporteur designated by him/her shall present their conclusions, arguments and evidence contained in the files of the case.

 

Art. 111. § 1. The court shall rule that a number of individual cases pending before it be combined to be heard jointly or also to be determined if they would have been subject to one complaint.

§ 2. The court may rule that combining a number of individual cases pending before it be combined to be heard jointly or to be determined if they are connected with each other.

 

Art. 112. Should the authority persistently fail to comply with an order of a court or a ruling of the presiding judge made in the course of proceedings and in connection with the determination of the case, the court may decide to impose a fine on the authority in the amount specified in art. 154 § 6. The order may be rendered in camera. The provision of art. 55 § 3 shall apply accordingly.

 

Art. 119. The case may be heard in accordance with the simplified procedure if:

1) the [administrative] decision or order has been affected by invalidity referred to in Article 156 § 1 of the Code of Administrative Proceedings or to other rules or have been

issued in violation of the law which provides a basis for reopening of the proceedings;

2) a party has requested that the case be referred for a hearing in accordance with the simplified procedure, and none of the other parties has demanded, within 14 days from the notification of the filing of the request, that a trial be conducted;

3) the subject of the complaint is an order made in administrative proceedings which is subject to an interlocutory appeal or concludes the proceedings as well as an order ruling on the merits of the case and orders made in enforcement proceedings and proceedings to secure claims which are subject to an interlocutory appeal;

4) the subject of a complaint is the failure to act or excessive length of proceedings.

5) a decision has been issued in simplified proceedings referred to in Section II Chapter 14 of the Act of 14th June 1960 – Code of Administrative Proceedings

 

Art. 120. The court shall hear cases in accordance with the simplified procedure in camera sitting with three judges.

 

Art. 22

§ 3. In the event that irregularities have been found in respect of effectiveness of the court proceedings, the President of the Supreme Administrative Court and the president of a voivodship administrative court may point out such irregularities and may demand that their consequences be eliminated.

 

Art. 35

§ 1. The President of the Supreme Administrative Court shall have the right of access to activities of the Supreme Administrative Court, he/she may attend a trial held in camera and may demand explanation and elimination of irregularities. In the event that irregularities have been found in respect of effectiveness of the court proceedings, the President of the Supreme Administrative Court may point out such irregularities and may demand that their consequences be eliminated.

§ 2. The functions referred to in § 1 shall not enter into the area in which judges are independent.

 

In the Law on Proceedings Before Administrative Courts, as in the Civil Procedure Code, there are no legislative provisions that are to constitute the catalog of general principles applicable in administrative court proceedings. It should be noted that legal similarities between the Law on Proceedings Before Administrative Courts and civil proceedings allow the transfer of many doctrinal findings of the law of civil procedure to the theoretical analysis of administrative court proceedings, but with some caution, required by the specificity of the subject which is the administrative court case. A separate issue is the application of the main principles of the judiciary exercised by the administrative judiciary through the control of public administration activities, which are based on constitutional provisions regarding judicial power. These issues relate primarily to the administrative court system, but also affect the proceedings in administrative court cases, as is the case with regard to civil proceedings. Below there are presented the most significant provisions of administrative proceedings:

Art. 11. The findings of a legally binding judgment given in the criminal proceedings, in which the offender has been convicted of an offence, shall bind the administrative court.

 

Art. 12a.

§ 4. Case files shall be made accessible to the parties to a proceeding. Parties shall have the right to examine case files as well as to receive transcripts, copies or excerpts from the files.

Art. 90. § 1. Unless a specific provision provides otherwise, court sessions shall be public, and the decision-making court shall hear cases at trial.

§ 2. The court may refer the case for hearing in open court and may designate a trial also when the case is to be heard in camera.

 

Art. 134. § 1. The court shall determine a case within its limits while not being bound by the charges and requests of the complaint and the legal basis invoked, subject to art. 57a.

§ 2. The court may not issue a decision in disfavour to the complainant, unless the court finds that there has been a violation of law resulting in the declaration of invalidity of the challenged act or action.

 

Art. 135. The court shall apply measures prescribed by statute in order to remedy the violation of law in relation to acts or actions issued or taken in all the proceedings carried out within the limits of the case to which the case relates, if this is indispensable to pursue the case to its final conclusion.

 

Art. 136. A judgment may be issued only by those judges before whom the trial immediately preceding the issuing of a judgment has been held.

 

Art. 140. § 1. The presiding judge shall provide a party that is not represented by an advocate, legal adviser, tax adviser or a patent attorney and that is present during the delivery of a judgment with guidelines as to the time limit for bringing an appellate measure and the manner in which an appellate measure should be brought.

§ 2. The court shall, on its own authority, serve a transcript of the conclusion of the judgment, together with information about the time limit for bringing an appellate measure and the manner in which an appellate measure should be brought, within a week of the delivery of the judgment on a party that is not represented by an advocate, legal adviser, tax adviser or patent attorney and that was not present during the delivery of

the judgment due to the deprivation of liberty.

§ 3. If a court serves a transcript of the conclusion of a judgment handed down in camera on a party that is not represented by an advocate, legal adviser, tax adviser or a patent attorney, the court shall inform the party about the time limit for bringing an appellate measure and the manner in which an appellate measure should be brought.

 

Art. 141. § 1. Reasons for a judgment shall be prepared ex officio within fourteen days of the date of delivery of the judgment or the date of signature of the conclusion of a judgment handed down in camera. § 2. In cases, in which the complaint has been dismissed, reasons for judgment shall be given at the request of a party filed within seven days from the day of pronouncement of the judgment or delivery of a transcript of its operative part of the judgment. Reasons of judgment shall be given within 14 days from the day of filing the request.

§ 2a. In a complicated case, where it is not possible to prepare the reasons for the judgment within the time limit referred to in § 1 and 2, the president of the court may extend the time limit for a fixed period of time no longer than thirty days.

§ 3. Refusal to give reasons for judgment shall be made by an order issued in camera. § 4. Reasons for judgment shall include provision of a brief picture of the state of the case, the charges of the complaint, the positions taken by other parties, the legal basis of the determination and its explanation. If, as a consequence of granting the complaint, the case is to be reconsidered by an administrative authority, the reasons should additionally include suggestions as to further proceeding.

 

Art. 142. § 1. A transcript of the judgment with reasons given by the operation of law shall be served on each of the parties.

§ 2. If the reasons for the judgment have been given at the request of a party, a transcript of the judgment with reasons given shall be served only on that party which has filed the request.

 

Art. 144. The court shall be bound by the judgment rendered from the moment of its pronouncement and, if the judgment has been rendered in camera – from the signing of the operative part of the judgment.

 

Art. 153. The legal assessment and indications as to the further course of action presented in a decision rendered by a court shall be binding on the authorities whose action, failure to act or excessive length of proceedings was the subject of the complaint as well as on courts, unless the provisions of law have been amended.

Art. 158. The court which has issued a judgment shall resolve by an order any doubts as to its content. An order in the matter may be issued by the court sitting in camera.

 

Art. 168. § 1. A decision of the court shall become legally binding, in no appellate measure lies against it.

§ 2. Despite inadmissibility of a separate review, orders subject to hearing by the Supreme Administrative Court shall not become legally binding, when that Court hears the case in which they have been issued.

§ 3. The judicial decision which has been challenged only in part, shall become legally binding in the remaining part after the expiration of the time limit for review, unless the Supreme Administrative Court may on its own authority hear the case in that part as well.

 

Art. 169. § 1. At the request of a party as well as in the case referred to in art. 286 § 1, a voivodship administrative court shall declare in camera whether a decision is legally binding. The order shall be served only on the party that has filed the request.

§ 2. On order declaring that a decision of a voivodship administrative court is legally binding may be made by a court referendary.

 

Art. 170. A legally binding judicial decision shall bind not only the parties and court which has issued it, but also other courts and state authorities, and – in instances provided in statute – also other persons.

Art. 171. A legally binding judgment shall have the force of res judicata only on that what in relation with the complaint has constituted the subject of the determination.

 

Art. 187. § 1. If a legal issue causing serious doubts arises in the course of hearing of a cassation appeal, the Supreme Administrative Court may adjourn the hearing of the case and refer that issue to be resolved by a panel of seven judges of that Court.

§ 2. The resolution of a panel of seven judges of the Supreme Administrative Court shall be binding upon the case.

§ 3. The Supreme Administrative Court sitting in a panel of seven judges may decide to hear the case itself.

 

Art. 190. Interpretation of law made in a case by the Supreme Administrative Court shall bind the court to which the case as been referred. A cassation appeal from a judicial decision issued after rehearing of the case may not be based on grounds incompatible with the interpretation of law set forth in this case by the Supreme Administrative Court.

Issue No. 4 “Legal capacity and capacity of participants of administrative procedure”

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.