Issue No. 17: Legislation regulating administrative procedure

The Polish Administrative Procedure Code contains the following provision:

Article 5. [Definitions]

§ 1. If any provision of law generally invokes the provisions regarding the administrative procedure, it shall be understood as to refer to the provisions of the Code of Administrative Procedure.

Pursuant to the above provision, if special regulations stipulate that the procedure or only some procedural activities should be conducted in accordance with the provisions on administrative procedure, this means that the provisions of the Code of Administrative Procedure shall apply. The above interpretation rule applies to special provisions containing such general references, issued before the entry into force of the Code (1 January 1961), and established after that date. This rule does not apply when special provisions refer to the provisions of the Code of Administrative Procedure or refer to the (appropriate) application of the Code of Administrative Procedure. Currently, legislative practice in Poland consisting in referring by special provisions to the "Act of 14 June 1960 - Code of Administrative Procedure”, has become established.

Examples of such a reference are included in the Act of 17 June 1966 on Enforcement Procedure in Administration (Journal of Laws 2019.1438, c.t.):

Art. 18. [Referral]

Unless the provisions of this Act provide otherwise, the provisions of the Code of Administrative Procedure shall apply accordingly in enforcement proceedings.

Art. 18 [Application of the provisions of the Code of Civil Procedure]

To the extent not covered in this chapter, the provisions of the Code of Administrative Procedure shall apply.

Article 18 refers to the relevant provisions of the Code of Administrative Procedure. Appropriate application of the provisions of the Code of Administrative Procedure in enforcement proceedings means that the provisions of this Code may be applied only to the extent and in such a way as to supplement rather than modify the Act on administrative enforcement proceedings. Hence the necessity to selectively apply the provisions of the Code of Administrative Procedure and the inadmissibility of applying the provisions of this Code in such matters that have been exhaustively regulated in the Act on administrative enforcement proceedings.

Article 18t indicates that the provisions of the Code of Administrative Procedure may be applied directly (without modification) in matters not regulated within the scope indicated therein.

Below, there are examples of other legislative solutions related to the application (or lack thereof) of the Code of Administrative Procedure:

l Law of December 12, 2013 on Aliens (Journal of Laws 2018.2094, c.t.)

Art. 371. [Excluding the application of the provisions of the Code of Civil Procedure and LPBAC]

For the transit of a foreigner by air through the territory of the Republic of Poland, the provisions of the Administrative Procedure Code and the Act of 30 August 2002 - Law on Proceedings Before Administrative Courts shall not apply [...].

Art. 444. [Alien’s applications regarding data included in the list or the Schengen Information System for the purposes of refusing entry]

1. An alien whose data has been included in the list or the Schengen Information System for the purposes of refusing entry may submit to the Head of the Office an application for:

1) providing him with information about placing his data on the list or the Schengen Information System for the purposes of refusing entry, about the validity of the entry and the legal and actual basis of the entry;

2) correction of data if it is incomplete, out of date or false;

3) deletion of data if they were placed or stored in violation of the provisions of the Act.

[...]

Art. 445. [Application of the provisions of the Code of Administrative Procedure on issuing certificates]

To proceed with the application referred to in art. 444 paragraph 1, the provisions of section VII of the Code of Administrative Procedure shall apply.

l Act of 2 April 2009 on Polish Citizenship (Journal of Laws 2018.1829, c.t.)

Art. 10. [Application of the provisions of other legal acts in matters regulated by the Act]

1. In matters of granting Polish citizenship and consent to the renunciation of Polish citizenship shall not apply, subject to Article 28 section 5 and art. 53, the provisions of the Code of Administrative Procedure and the provisions of the Act of 30 August 2002 - Law on Proceedings Before Administrative Courts [...].

Art. 28. [Providing the applicant with information on granting or refusing citizenship] [...]

4. The voivode who has accepted the application for granting Polish citizenship shall deliver to the applicant the act of granting Polish citizenship or notification of refusal to grant Polish citizenship.

5. For the deliveries referred to in para. 4, the provisions of the Code of Administrative Procedure regarding service shall apply.

Art. 53. [Delivery of notifications on decisions concerning acceptance of applications for renunciation of Polish citizenship]

To deliver notifications on decisions concerning acceptance of applications for renunciation of Polish citizenship, the provisions of Art. 28 applies.

l Act of 14 December 2016 - Educational Law (Journal of Laws 2019.1148, c.t.)

Art. 60. [Additional provisions on pedagogical supervision]

[...]

6a. Provisions regarding the issuing of decisions on granting or refusing a degree of professional promotion to teachers of Polish schools and schools and school complexes referred to in art. 8 clause 5 point 2 lit. c, by the minister competent for education and upbringing shall apply accordingly to the head of the organizational unit referred to in the provisions issued pursuant to para. 6. To decisions issued by the head of this unit apply appropriately the provisions of art. 127 § 3 of the Act of 14 June 1960 - Code of Administrative Procedure.

l Act of 27 April 2001 on Environmental Protection Law (Journal of Laws 2019.1396, c.t.)

 

Article 400r.

 

1. The activity of the National Fund is supervised by the minister in charge of the environment.

 

2. Resolutions of the Supervisory Board of the National Fund are transmitted within 7 days of their adopting to the minister in charge of the environment.

 

3. An unlawful resolution of the Supervisory Board of the National Fund is null and void.

 

4. The resolution is annulled in part or in whole by decision of the supervisory authority within 14 days of its receipt. [...]

 

6. In the cases of annulling resolutions, the provisions of the Code of Administrative Procedure apply.[...]