Issue No. 25: Repeal of an unlawful administrative act

Articles 417–421 of the Polish Civil Code (Journal of Laws 2019.1145, c.t.) regulate the liability of the State Treasury and other legal persons exercising public authority for damages caused in the exercise of this authority, i.e. damages that result from actions belonging to the sphere of the empire, not from the exercise of functions within the dominion. This division of tasks of the state and local self-government consists in the fact that on the one hand state and self-government organs perform imperious actions towards other legal entities (this is the sphere of the empire, which is the domain of public law), on the other, they also take actions belonging to the broadly understood property management, appearing on an equal level with other entities (the sphere of dominion, subject to the regulation of private law). Compensation for damage caused by tort, when performing activities within the scope of dominium, is subject to the general regulation of the Civil Code dedicated to torts, and the responsibility of the State Treasury and self- government units is no different in this area from the liability of other entities. Articles 417–421, on the other hand, tighten the liability of legal persons exercising public authority only in the sphere of the empire, in which other entities are subordinated to the will of the state, and therefore far more exposed to harm than outside of this sphere.

It should be noted that absolute certainty of the given action falling within the scope of the empire applies only to those situations where a given body or legal entity may unilaterally shape the legal situation of another entity, which is thereby subject to the authority of that body or person. Apart from this area of authority, in its most literal and immediate sense, there is also the sphere in which tasks of significant importance to the public interest are undertaken, and which are not necessarily carried out by means of administrative law. The concept of public authority, covering primarily the described imperious activities, also includes public tasks implemented in other forms than direct imperious shaping of the individual's situation. Namely, these tasks, the improper performance of which may deprive a citizen of the benefits due to him guaranteed by public law, and thus put him in a forced situation. An important criterion that can determine the problem of belonging to such tasks in the public sphere is whether they can also be carried out by private entities (e.g. educational activities can be carried out by both public and non-public schools, which puts it in principle outside the scope of public authority; however, public school activities undertaken in imperious forms should be considered an exception, e.g. a student being expelled by a public university).

The entities exercising public authority are the State Treasury, a self-government unit or another legal entity which operates in the described sphere of the empire. Therefore, this power is exercised by both central and local state organs, local government units (municipalities, inter-commune associations, poviats, associations of poviats, voivodships), as well as legal persons performing public tasks primarily in imperious forms (e.g. state agencies). Competences to perform activities belonging to public authorities may result from legal provisions or from an agreement which, pursuant to the relevant provisions, was concluded between a public authority body and a local government unit or other legal person.

The source of competence is important when determining the subjective scope of responsibility (Article 417 § 1 and 2 of the Civil Code). If a given legal person exercises this power under the law, it bears full responsibility for any damage resulting therefrom. If, on the other hand, public authority was carried out on the basis of an agreement, the commissioning person and the person performing these tasks bear joint and several liability for damages which strengthens the position of the injured party. These agreements should be understood as arrangements made on the basis of public law, the purpose of which is to delegate specific public tasks to a designated entity. The responsibility of the contractor of tasks in the field of public authority commissioned under the agreement, as well as the responsibility of the entity that gave such an order, is based on the principles set out in Article 417 § 1 of the Civil Code.

Article 417.

§ 1. The State Treasury or an entity of local government or some other legal person who by virtue of law exercises public authority shall be liable for the damage inflicted by an illegal act or omission committed while exercising the public authority.

§ 2. Where the exercise of duties within the scope of public authority has been commissioned on the basis of an agreement to an entity of local government or to some other legal person, the executor of those duties and the entity of local government or the State Treasury commissioning it shall be held jointly and severally liable for the damage incurred.

Article 417¹.

§ 1. If the damage has been inflicted by issuing a normative act, one may demand its redress after it has been acknowledged in an appropriate proceeding that this act contradicts the Constitution, a ratified international treaty or a statute.

§ 2. If the damage has been inflicted by issuing a final court ruling or a final decision, its redress may be demanded after it has been acknowledged in an appropriate proceeding that the ruling or decision contradict the law unless otherwise provided by separate provisions. It shall also apply to the case where the final ruling or the final decision have been issued on the basis of a normative act incompatible with the Constitution, a ratified international treaty or a statute.

§ 3. If the damage has been inflicted by the failure to issue a ruling or a decision where the law provides for a duty to issue them, its redress may be demanded after it has been acknowledged in an appropriate proceeding that the failure to issue the ruling or the decision contradicted the law, unless separate provisions provide otherwise.

§ 4. If the damage has been inflicted by the failure to issue a normative act where the law provides for a duty to issue it, a court of law that hears the case for the redress of the damage may adjudicate that a failure to issue that act contradicts the law.

Article 417².

Where an injury to a person has been inflicted by the exercise of the public authority compliant with the law, the injured party may demand a complete or partial redress of it as well as pecuniary compensation for the wrong suffered, where the circumstances and in particular an inability of the injured party to work or his grave financial situation indicate that the reasons of equity require it.

Article 421.

The provisions of articles 417, 417¹ and 417² shall not apply if liability for the damage inflicted while exercising public authority has been regulated in specific provisions.

Article 444.

§ 1. In the case of a bodily harm or a health disorder the redress of the damage shall include all expenditures resulting from it. At the request of the injured party, the person obliged to redress the damage shall lay out in advance an amount required to cover the treatment costs and where the injured party has become a disabled person, an amount required to cover the costs of training for another profession as well.

§ 2. Where the injured party has lost ability to carry out gainful work entirely or in part or where his needs have increased or his prospects for the future success have been reduced, he may demand a relevant pension from the party obliged to redress injury.

§ 3. If at the moment of issuing the ruling the extent of injury is impossible to be assessed precisely, a temporary pension may be granted to the injured party.

Article 445.

§ 1. In the case provided for in the preceding article, a court of law may grant to the injured party a relevant amount on account of pecuniary compensation for the wrong suffered.

§ 2. The above provision shall also apply in the case of false imprisonment or in the case of inducing somebody by deceit, violence or abuse of a dependency relation to submit to an indecent act.

§ 3. A claim for compensation shall devolve on heirs only where it has been acknowledged in writing or where statements of claim were instituted during the life of the injured party.

Article 446.

§ 1. If the injured party died due to bodily harm or health disorder, the party obliged to redress the injury shall reimburse the treatment and the funeral expenditure to the person who incurred them.

§ 2. A person towards whom the deceased had a statutory maintenance duty may demand from the party obliged to redress the injury a pension calculated according to the needs of the injured party as well as to the earning and proprietary capacity of the deceased throughout the period of the probable duration of the maintenance duty. Other persons in close relations with the deceased to whom he provided means of subsistence voluntarily and on a permanent basis, may demand the same pension if it results from the circumstances that it is required by the principles of community coexistence.

§ 3. A court of law may also grant relevant damages to the closest family members of the deceased where due to his death a considerable deterioration in their living situation has occurred.

§ 4. A court of law may also grant a relevant amount to the closest family members of the deceased on account of pecuniary compensation for the wrong suffered.

The Code of Administrative Procedure contains provision regulating damage suffered as result of a decision being quashed or amended.

Due to the fact that a competent public administration body, by annulling or changing the decision pursuant to which a party had acquired a right, deprives the party without its consent of the previously acquired rights, the party is entitled to a claim for compensation for damage caused by the legal action of a public administration body (Article 161 § 3).

Pursuant to the provision of art. 161 § 3, the party is entitled to a claim for compensation for actual damage suffered as a result of annulment or change of decision. Therefore, the premise for applying the commented provision is the occurrence of damage and the existence of a causal link between the repeal or amendment of the final decision and the damage caused. "The provision of art. 160 § 1 of the Code of Civil Procedure constituting a derogation from the general rule contained in art. 361 § 2 of the Civil Code, grants a claim for compensation only within the limits of actual damage, i.e. the loss suffered by the injured party (damnum emergens), and not the return of lost profits (lucrum cessans).

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. 26: Law of the Republic of Kazakhstan "On Legal Acts"

In Poland there is no special statue on normative acts. The term „normative act” is not defined in binding laws, however it is commonly used in legislature. Meaning of this term has been worked out in legal doctrine and in judicature. The concept of a normative act is strictly connected with the concept of sources of law. The system of sources of law is exhaustively regulated in the Constitution of the Republic of Poland of 1997 in Art. 87 - 94.

 

Article 87.

 

The sources of universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations.

Enactments of local law issued by the operation of organs shall be a source of universally binding law of the Republic of Poland in the territory of the organ issuing such enactments.

 

Article 88

 

The condition precedent for the coming into force of statutes, regulations and enactments of local law shall be the promulgation thereof.

The principles of and procedures for promulgation of normative acts shall be specified by statute.

International agreements ratified with prior consent granted by statute shall be promulgated in accordance with the procedures required for statutes. The principles of promulgation of other international agreements shall be specified by statute.

 

Article 89

 

Ratification of an international agreement by the Republic of Poland, as well as renunciation thereof, shall require prior consent granted by statute - if such agreement concerns:

 

1) peace, alliances, political or military treaties;

 

2) freedoms, rights or obligations of citizens, as specified in the Constitution;

 

3) the Republic of Poland's membership in an international organization;

 

4) considerable financial responsibilities imposed on the State;

 

5) matters regulated by statute or those in respect of which the Constitution requires the form of a statute.

 

The President of the Council of Ministers (the Prime Minister) shall inform the Sejm of any intention to submit, for ratification by the President of the Republic, any international agreements whose ratification does not require consent granted by statute.

The principles of and procedures for the conclusion and renunciation of international agreements shall be specified by statute.

 

Article 90

 

The Republic of Poland may, by virtue of international agreements, delegate to an international organization or international institution the competence of organs of State authority in relation to certain matters.

A statute, granting consent for ratification of an international agreement referred to in para.1, shall be passed by the Sejm by a two-thirds majority vote in the presence of at least half of the statutory number of Deputies, and by the Senate by a two-thirds majority vote in the presence of at least half of the statutory number of Senators.

Granting of consent for ratification of such agreement may also be passed by a nationwide referendum in accordance with the provisions of Article 125.

Any resolution in respect of the choice of procedure for granting consent to ratification shall be taken by the Sejm by an absolute majority vote taken in the presence of at least half of the statutory number of Deputies.

 

Article 91

 

After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.

An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.

If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.

 

Article 92

 

Regulations shall be issued on the basis of specific authorization contained in, and for the purpose of implementation of, statutes by the organs specified in the Constitution. The authorization shall specify the organ appropriate to issue a regulation and the scope of matters to be regulated as well as guidelines concerning the provisions of such act.

An organ authorized to issue a regulation shall not delegate its competence, referred to in para. 1 above, to another organ.

 

Article 93

 

Resolutions of the Council of Ministers and orders of the Prime Minister and ministers shall be of an internal character and shall bind only those organizational units subordinate to the organ which issues such act.

Orders shall only be issued on the basis of statute. They shall not serve as the basis for decisions taken in respect of citizens, legal persons and other subjects.

Resolutions and orders shall be subject to scrutiny regarding their compliance with universally binding law.

 

Article 94

 

On the basis of and within limits specified by statute, organs of local government and territorial organs of government administration shall enact local legal enactments applicable to their territorially defined areas of operation. The principles of and procedures for enacting local legal enactments shall be specified by statute.

 

Question of publication of sources of law is regulated by the Law of 20 July 2000 on the Publication of Normative and Certain other Legal Acts (Journal of Laws 2019.1461, c.t.). Due to its provisions publication of a normative act in the official journal is mandatory, but a separate law may exclude the obligation to publish a normative act that does not contain universally binding provisions.