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- INTRODUCTION (History, purpose of the review and classification of administrative acts, definition of an administrative authority)
- 1. Main dates in the evolution of the review of administrative acts
Control over the performance of administrative bodies commenced with the coming into force of the Supreme Administrative Court Act of 31st January 1980 (Journal of Laws of 1980, No. 4, item 8), which restored administrative judiciary in Poland after more than 60 years. Pursuant to this Act, the Supreme Administrative Court became a specialized court (since 1981 with regional branches), competent in cases involving complaints against administrative decisions and the inaction of administrative bodies. It remained under the judicial supervision of the Supreme Court, which examined extraordinary revisions of judgments and adopted resolutions on doubtful legal issues.
Major amendments to this statute were introduced by the Act of 24th May 1990 amending the Act of 14th June 1960 – Code of Administrative Proceedings (Journal of Laws 1990, No. 34, item 201). The scope of jurisdiction (cognition) of the Supreme Administrative Court included administrative decisions issued under the proceedings regulated in the Code of Administrative Proceedings and in other particular administrative proceedings.
The scope of administrative acts subject to judicial review was considerably expanded by the Supreme Administrative Court Act of 11th May 1995 (Journal of Laws of 1995, No. 74, item 368).
The Constitution of Republic of Poland of 2nd April 1997 (Journal of Laws of 1997, No. 78, item 483) established the obligation to introduce a system of two administrative instances within 5 years of its coming into force. On its basis, three acts were passed which provided the basis for a reform to administrative jurisdiction in Poland; these acts came into force on 1 January 2004. They are: the Act of 25th July 2002 Law on the System of Administrative Courts (Journal of Laws of 2014, item 1647 – consolidated text), the Act of 30th August 2002 Law on Proceedings Before Administrative Courts (Journal of Laws of 2012, item 270 - consolidated text) and the Act of 30th August 2002 – The Provisions introducing the both of above mentioned acts (Journal of Laws of 2002, No. 53, item 1271).
In the new (since 2004 existing) structure of administrative judiciary, voivodship administrative courts have acquired virtually the full scope of the competencies of the “old” Supreme Administrative Court and shall hear all administrative court cases, except for matters reserved for the jurisdiction of the Supreme Administrative Court. The “new” Supreme Administrative Court shall hear means of appeal (cassation appeals and interlocutory appeals) against the judicial decisions of voivodship administrative courts.
The Act of 9th April 2015 on the amendment of the Law on Proceedings Before Administrative Courts (Journal of Laws 2015, item 658; entered into force on 15th August 2015) aims to accelerate and improve the effectiveness of proceedings before administrative courts of both instances, extends the competencies of the Supreme Administrative Court to examine cassation appeals on their merits and grants also the courts of first instance (voivodship administrative courts) the power of adjudicating on the merits.
The Act of 10th July 2015 on the amendment of the Law on the Courts of General Jurisdiction and certain other Acts (among others Law on the System of Administrative Courts) (Journal of Laws 2015, item 1224; entered into force on 1 January 2016) amended certain provisions concerning the “court assessors” - legal institution comparable with German “Richter auf Probe” – “Judge on probation”, whose appointment takes place with the intention that the he / she would be employed later in his / her lifetime as a judge for an indefinite period.
- 2. Purpose of the review of administrative acts
The basic task of the Supreme Administrative Court and the voivodship administrative courts is to control the legality of the activities of the public administration. This includes adjudicating on the legal compliance of resolutions adopted by territorial self-government bodies and of normative instruments passed by regional bodies of government administration. The subject of that compliance control is an adherence to the law by public administration bodies, in other words the protection of substantive law, and the result of this control – if the administrative court determines that a breach of substantive law has occurred – is the application of the legal resources envisaged by the law, e.g. the revocation of a decision. But most often, the protection of substantive law involves the protection of the normative rights of citizens which derive from the norms of substantive law and which have been breached as a result of the unlawful action of public administrative bodies. The protection of these rights was the basic purpose of creating the institution of judicial review of the activity of public administration (from the point of view of conformity with law – legality).
The Act of 9th April 2015 on the amendment of the Law on Proceedings Before Administrative Courts modified the way of implementation of the review of administrative acts by the administrative courts. The Act of 2015 extends the competencies of the Supreme Administrative Court to examine appeals on their merits. Until 2015 the Law on Proceedings Before Administrative Courts did not stipulate the possibility for the Supreme Administrative Court to adjudicate on the essence of the case unless significant breaches of procedural law would be discovered. In such a case, the Supreme Administrative Court was obliged to repeal the judgement and to refer the case to the voivodship administrative court for re-examination. Since 2015 the Supreme Administrative Court is competent to examine the appeal on its merits if it considers that the essence of the case has been sufficiently clarified.
Also the voivodship administrative courts (courts of first instance) the Act of 2015 granted the power of adjudicating on the merits. In accordance with the new provisions, if the authority does not observe the court’s obligation to issue a decision or ruling within a time limit specified by the court, the court will, at the party’s request, issue a decision on the merits, if this is allowed by the circumstances of the case. Furthermore, voivodship administrative courts have been provided with self-inspection powers. Until now a court of the first instance was unable to change its decision in the event of filing a cassation appeal even if it determined that such appeal is, in fact, well-founded. Currently, if, after the filing of a cassation appeal and before its submission to the Supreme Administrative Court, the administrative court finds grounds for determining the invalidity of the proceedings or if it determines that the grounds of the cassation appeal are obviously justified, it is obliged to repeal the judgement on its own and to re-examine the case during the same session (while maintaining the possibility to submit a cassation appeal against the new judgement issued in such manner).
The protection of civil rights is also served by additional competencies of the Supreme Administrative Court. The Supreme Administrative Court is empowered to adopt resolutions intended to clarify legal regulations whose implementation has caused discrepancies in the jurisdiction of administrative courts, as well as resolutions which contain decisions on legal issues which raise serious doubts regarding a specific administrative court case. The President of the Supreme Administrative Court may also submit a motion to the Constitutional Tribunal regarding the compliance of given legal instruments with the Constitution. What is more, just like all other courts in Poland, the administrative courts may submit questions to the Constitutional Tribunal regarding the conformity of a normative act to the Constitution, ratified international agreements or statute, if the answer to such a question will determine the outcome of a case pending before a court.
- 3. Definition of an administrative authority
Bodies of public administration should be taken to mean ministers, central bodies of government authority, voivodes, other regional bodies of government administration (incorporated or unincorporated) acting on their own or on someone else’s behalf, and other state authorities and other bodies, if they have been formed by the force of law or on the basis of agreements in order to resolve individual matters being determined by way of administrative decisions.
One may mention bodies possessing systemic significance, in other words bodies created for the sole or main purpose of performing public administrative tasks, and bodies of functional significance, for whom public administrative tasks are not the sole or main tasks, such as high schools and the legal professional bodies of lawyers, legal counsellors and notaries public.
- 4. Classification of administrative acts
Administrative instruments may be divided into:
- universally binding and internal instruments,
- instruments which apply to the whole territory of Poland or just a region,
- instruments issued on the basis of particular prerogatives and instruments issued on the basis of regulations which govern competencies,
- instruments regarding material administrative law, procedural law and political law.
- I – ORGANIZATION AND ROLE OF THE BODIES, COMPETENT TO REVIEW ADMINISTRATIVE ACTS
- A. COMPETENT BODIES
- 5. Non-judicial bodies competent to review administrative acts
The submission of a complaint to a court by a prosecutor or by the Commissioner for Citizens’ Rights, and the possibility for them to take part in court proceedings, may be regarded as a form of control.
Furthermore, if a resolution by a body of territorial self-government or a directive by a voivode is not compliant with the law, the prosecutor asks the body that issued the resolution to amend or annul it, or submits a request to this effect to the relevant supervisory body. In the case of a resolution passed by a body of territorial self-government, the prosecutor may also apply to an administrative court to determine its legal non-compliance.
The Supreme Chamber of Control also possesses control powers. It controls the activity of government administrative bodies, Polish National Bank, state institutions and other state organisational entities from the point of view of legality, thrift, expediency purpose and honesty. It may also control the work of territorial-self-government bodies, communal institutions and other communal organisational units from the point of view of legality, thrift and honesty.
In Poland a court of arbitration cannot control administrative instruments.
- 6. Organization of the court system and courts competent to hear disputes concerning acts of administration
Control of administrative activity is performed by two-instance administrative jurisdiction. Administrative courts are the Supreme Administrative Court and voivodship administrative courts in 16 voivodships. Cases that lie within the scope of administrative courts are considered in the first instance by the voivodship administrative courts. The Supreme Administrative Court supervises the work of the voivodship administrative courts regarding their jurisdiction under proceedings set forth in statutes, and in particular it considers appeals against adjudications issued by these courts and considers other matters that fall within the scope of the Supreme Administrative Court on the basis of other laws. The voivodship administrative courts are divided into divisions, whilst the Supreme Administrative Court consists of 3 chambers, each of which is divided into 2 divisions. There are no administrative courts with special prerogatives and the Constitutional Tribunal has no direct control over the instruments and work of the administration.
- B. RULES GOVERNING THE COMPETENT BODIES
- 7. Origin of rules delimiting the competence of ordinary courts in the review of administrative acts
Pursuant to the Polish Constitution of 2nd April 1997 (Journal of Laws of 1997, No. 78, item 483), control over the performance of the public administration, within the scope set forth in statutes, is exercised by the Supreme Administrative Court and other administrative courts (Article 184). Their status is regulated primarily by the Act of 25th July 2002 Law on the System of Administrative Courts (Journal of Laws of 2014, item 1647 – consolidated text) and the Act of 30th August 2002 Law on Proceedings Before Administrative Courts (Journal of Laws of 2012, item 270 - consolidated text).
In principle, the general courts are not competent to consider administrative disputes, unless they possess particular powers in this regard on the basis of special legislation, such as the Social Insurance System Act of 13 October 1998 (Journal of Laws of 2015, item 121 – consolidated text), Public Procurement Act of 29 January 2004 (Journal of Laws of 2015, item 2164 – consolidated text), Act of 24th July 2015 – Law on Assemblies (Journal of Laws of 2015, item 1485) and Competition and Consumers Protection Act of 16 February 2007 (Journal of Laws of 2015, item 1634 – consolidated text).
- 8. Existence and origins of specific rules related to the competence and duties of the administrative courts or tribunals
see answer 7.
- C. INTERNAL ORGANIZATION AND COMPOSITION OF THE COMPETENT BODIES
- 9. Internal organization of the ordinary courts competent to review administrative acts
- 10. Internal organization of the administrative courts
Administrative courts are the Supreme Administrative Court and voivodship administrative courts, created in the 16 voivodships. The biggest voivodship administrative court – Warsaw one – has also its regional branch in Radom.
Cases that lie within the scope of administrative courts are considered in the first instance by the voivodship administrative courts. The Supreme Administrative Court supervises the work of the voivodship administrative courts. The voivodship administrative courts are divided into divisions, whose number depends on the voivodship (between 2 and 7 divisions). The Supreme Administrative Court is composed of 3 chambers: general administrative, commercial and financial. Each chamber is divided into 2 divisions. The Supreme Administrative Court is headed by the President of the Supreme Administrative Court, and the chambers are headed by Vice Presidents of the Supreme Administrative Court. A Voivodship Administrative Court is headed by a President of the Voivodship Administrative Court, and its divisions are headed by the President or Vice President of the Court, or by an appointed judge.
- D. JUDGES
- 11. Status of judges who review administrative acts
Judges who control the administration are not a particular category of judges, and such judges are not subdivided into individual categories. Judges are appointed for an indefinite period by the President of the Republic on the recommendation of the National Council of the Judiciary, and are not removable, but their tenure expires at a certain age set by the law. They are subject only to the Constitution and the statutes.
Also the court assessors, within the exercise of their office, shall be independent and subject only to the Constitution and statutes.
- 12. Recruitment of judges in charge of review of administrative acts
The judges of administrative courts are appointed by the President of the Republic on the recommendation of the National Council of the Judiciary. The judges of administrative courts are appointed to the post of a voivodship administrative court judge assigned to an official location (bench), or to the post of a Supreme Administrative Court judge.
To be appointed as a judge of a voivodship administrative court, a person must:
1) possess Polish citizenship and enjoy full civil and civic rights,
2) be of a flawless character,
3) have completed law studies in Poland and earned a Master’s of Law degree, or an equivalent foreign qualification recognised in Poland,
4) be medically fit to perform the duties of a judge,
5) be over 35 years of age,
6) possess a high level of knowledge of the public administration, administrative law, and other spheres of law connected with the work of public administration bodies,
7) have served at least eight years as a judge or prosecutor or been employed for at least eight years as a lawyer, legal counsel or notary public; or served ten years in public institutions, occupying positions involving the implementation or creation of administrative law; or been employed as a court assessor in a voivodship administrative court for at least two years.
To be appointed as a judge of the Supreme Administrative Court, a person must be over 40 years of age and have served at least ten years as a judge or prosecutor or been employed for at least ten years a lawyer, legal counsel or notary public. The age requirement of 40 years does not apply to a judge who has served as a voivodship administrative court judge for at least three years.
To be appointed as a court assessor a person must:
1) be over 30 years of age,
2) possess Polish citizenship and enjoy full civil and civic rights,
3) be of a flawless character,
4) have completed law studies in Poland and earned a Master’s of Law degree, or an equivalent foreign qualification recognised in Poland,
5) be medically fit to perform the duties of a judge,
6) possess a high level of knowledge of the public administration, administrative law, and other spheres of law connected with the work of public administration bodies,
7) have served (has been employed or in service) as judge, prosecutor or president, vice-president, senior counsel or counsel of the general prosecutor’s office, or have performed for at least four years the profession of attorney, legal counsel or notary public, or served occupying in public institutions positions connected with application or making of administrative law.
The application for the position of court assessor shall be submitted to the president of the appropriate voivodship administrative court, who - after confirming that the candidate complies with the appropriate conditions and requirements - transfers the application to the President of the Supreme Administrative Court. The President of the Supreme Administrative Court, after the consultation with the court board, shall present the application to the position of court assessor to the National Council of the Judiciary together with the evaluation of qualifications.
The court assessors are appointed by the President of the Republic on the recommendation of the National Council of the Judiciary, for the period of five years with designation of the official location (seat) of a court assessor in the voivodship administrative court.
- 13. Professional training of judges
All judges have completed law studies in Poland and earned a master’s degree, or an equivalent foreign qualification recognised in Poland. To become an administrative court judge, they must also have a long-term experience as a judge, lawyer, legal counsellor or notary public, or have occupied a position involving the implementation or formulation of administrative law, or hold the title of doctor habilitatus or professor.
- 14. Promotion of judges
The judges of administrative courts are appointed by the President of the Republic on the recommendation of the National Council of the Judiciary. The judges of administrative courts are appointed to the post of a voivodship administrative court judge assigned to an official location (bench), or to the post of a Supreme Administrative Court judge.
To be appointed as a judge of the Supreme Administrative Court, a person must be over 40 years of age and have served at least ten years as a judge or prosecutor or been employed for at least ten years as a lawyer, legal counsellor or notary public. The age requirement of 40 years does not apply to a judge who has served as a voivodship administrative court judge for at least three years.
- 15. Professional mobility of judges
Judges are not removable. The transfer of a judge to another bench or position may occur only with his consent. Transfer to another bench or position against his will may occur only by virtue of a court decision and only in those instances prescribed in statute. Where there has been a change of court system or changes to the boundaries of court districts, a judge may be allocated to another court or returned with maintenance of his full remuneration.
The President of the Supreme Administrative Court may delegate a judge of a voivodship administrative court, with his permission and for a fixed period, to perform the duties of a judge in the Supreme Administrative Court.
The Minister of Justice, at the motion of the President of the Supreme Administrative Court, may delegate an appeal court or district court judge, with his permission and for a fixed period, to perform the duties of an administrative court judge.
Judicial officials may also occupy positions in the state administration.
- E. ROLE OF THE COMPETENT BODIES
- 16. Available kinds of recourse against administrative acts
A complaint about the activities of the administration is made by filing a complaint with a voivodship court or, in certain cases, by submitting an application for the instigation of proceedings. Before administrative proceedings may begin, all the means of appeal in administrative proceedings must have been exhausted. The court examines the activities of the administration from the point of view of its conformity with the law; it possesses the powers of appeal, and has no authority to consider a case on its substance. The court may reject the complaint if it determines that no breach of the law has occurred. If it does determine that a breach of the law has occurred, it will annul a decision that has been complained against, or declare it void in the case of a manifest breach of the law, or determine that the decision was issued in breach of the law. In the event of a complaint about the passiveness of a body of authority, the court may pas a judgment obliging the authority to remedy its lack of activity.
An administrative court cannot annul an agreement reached between a private individual and an administrative body, nor award damages to anyone who has suffered a loss as a result of a faulty administrative decision. A court may, however, impose a public penalty upon the administrative body, notify a higher-level body of the faulty work of the body that issued the faulty decision, or consider the case on behalf of a public administrative body.
- 17. Existence of mechanisms for the delivery of a preliminary ruling apart from the procedure under the Article 234 of the EC Treaty
Existence of mechanisms for the delivery of a preliminary ruling apart from the procedure under the Article 267 of the Treaty on the Functioning of the European Union (TFEU)
- 18. Advisory functions of the competent bodies
Administrative bodies do not perform advisory functions vis-a-vis the executive or the legislature.
- 19. Organization of the judicial and advisory functions of the competent bodies
- F. ALLOCATION OF DUTIES AND RELATIONSHIP BETWEEN THE COMPETENT BODIES
- 20. Role of the supreme courts in ensuring the uniform application and interpretation of law
The President of the Supreme Administrative Court may refer a question of law to the Constitutional Tribunal as to the conformity of a normative act with the Constitution, ratified international agreements or statute. In addition, any court may refer a question of law to the Constitutional Tribunal as to the conformity of a normative act with the Constitution, ratified international agreements or statute, if the answer to such a question of law will determine an issue currently before a court.
The Supreme Administrative Court may also adopt a resolution amending a decision on legal issues that raise serious doubts in a given administrative case.
A legal assessment and guidelines regarding further proceedings expressed in court adjudication are binding upon the court or authority whose action or inaction was the subject of the complaint. Furthermore, if a decision of a court of first instance is quashed by the Supreme Administrative Court, the court of first instance is bound by the Supreme Administrative Court’s legal interpretation of the matter.
- II – JUDICIAL REVIEW OF ADMINISTRATIVE ACTS
- A. ACCESS TO JUSTICE
- 21. Preconditions of access to the courts
The basic condition for permitting the submission of a complaint to an administrative court is that the means of appeal must have been exhausted, if the complainant had recourse to such means during proceedings before the relevant body. The exhaustion of means of appeal is understood as a situation where a party has no further means of appeal envisaged in the law, such as a complaint, appeal or request for a reconsideration of his case, at his disposal.
However, a prosecutor and the Polish Ombudsman are exempt from this requirement. If a party has no recourse to resources of appeal in a case that is the subject of the complaint, a complaint against acts or deeds may be submitted after the relevant body has been requested in writing to remedy its breach of the law. Such a request may be considered an extraordinary legal resource, for it need not lead to a re-examination of the act or deed that was committed, and its purpose is the creation of an additional possibility for a body to revise its own actions.
- 22. Right to bring a case before the court
A complaint may be submitted to a court by anyone (both a natural and a legal person) who has a legal interest in doing so. Whether an individual possesses a protected legal interest in a given case is determined by the provisions of the law. A complaint is filed to a voivodship administrative court as a result of a breach of the complainant’s legal interests.
The prosecutor and the Commissioner for Citizens’ Rights constitute a separate category of complainants; in administrative court proceedings, they can act having the rights of a party.
A social organisation is also entitled to submit a complaint regarding the legal interests of other persons, if the case falls within its statutory activity and the organisation has taken part in administrative proceedings.
Furthermore, other entities entitled by law to submit a complaint may do so, such as a commune (gmina), inter-commune association, district (powiat) or self-governing voivodship.
- 23. Admissibility conditions
The basic condition for submitting a complaint to an administrative court is the possession of a legal interest in doing so. Therefore the complainant must disclose that he has a legal interest in the performance of a judicial control into the legal conformity of a specific act or deed, as well as a legal interest in making the act or deed conform to the provisions of law.
A further essential condition for court action is that the means of appeal in administrative proceedings must have been exhausted, the complaint must be filed within the statutory time-limits, and it must be filed via the body whose action or inaction is the subject of the complaint and which is obliged to convey the matter to the court within 30 days.
- 24. Time limits to apply to the courts
A complaint to a voivodship administrative court is filed within thirty days from the date on which the complainant received a decision in his case. If a party has no recourse to means of appeal in administrative proceedings, the complaint is filed within thirty days from the date on which a reply was delivered from the body in response to a demand to remedy the breach of the law, and if the body failed to issue a reply, within sixty days of the date on which the demand to remedy the breach of the law was issued.
The prosecutor or Polish Ombudsman may submit a complaint within six months of the date on which a party to an individual case received a reply, and in other cases within six months of the date on which the act or deed which justified the complaint came into effect. This deadline does not apply to the submission of complaints concerning local legal acts by units of territorial self-government and local government administrative bodies.
A complaint of cassation is filed within thirty days of the date on which the party received a copy of the adjudication, with justification. This deadline for the submission of a complaint of cassation is also binding upon the prosecutor and the Polish Ombudsman. But if no adjudication is served to the party, the prosecutor and the Polish Ombudsman may, within thirty days of issue of the adjudication, request a justification of the adjudication and submit a complaint of cassation within thirty days of receipt of a copy of the adjudication with justification.
A complaint to the Supreme Administrative Court against a decision is filed within seven days of the receipt of the decision.
If a party fails to submit a complaint in time through no fault of its own, the court will, at the party’s request, decide to restore the deadline. A restoration of deadline is not permissible if this causes negative consequences for the parties in court proceedings. There is a right of appeal against a restoration of deadline or against a refusal to do so.
- 25. Administrative acts excluded from judicial review
The enormity of a case is not a factor that determines justification for administrative court control. The administrative courts control the work of the administration in all the cases envisaged in the Act on proceedings before administrative courts and in others acts of law.
Administrative courts shall have no competence in following 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 issued to an alien being a family member of a national of the European Union member state, family member of a national of a member state of the European Free Trade Association – a party to European Economic Area Agreement or 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 (Journal of Laws No. 144, item 1043);
5) relating to local border traffic permits issued by consuls.
- 26. Screening procedures
The procedure for the examination of complaints by a voivodship administrative court with respect to its permissibility and the existence of the prerequisites to reject them may be regarded as a form of preliminary control into complaints. This may be done by the court at an open session, or in camera by means of a decision.
A voivodship administrative court may also reject a complaint of cassation that was submitted after the timelit set by law or was impermissible for other reasons, as well as a complaint of cassation whose shortcoming were not corrected by a party within the required deadline.
Furthermore, the Supreme Administrative Court may reject a complaint of cassation or refer it back to the voivodship administrative court if the complaint was subject to rejection by a court of I instance. In such a case, a decision on rejection is reached in camera by a single judge.
So far, the procedure for rejecting a complaint or complaint of cassation has not been the subject of an investigation regarding compliance with international and European law.
- 27. Form of application
A complaint to a voivodship administrative court must, first of all, fulfil the conditions set forth in the court correspondence related to the proceedings, in other words it should contain the name of the court to which it is addressed, the names of the parties and their statutory representatives and attorneys, a description of the type of correspondence, the background to the application, the signature of the party or his statutory representative or attorney, a list of enclosures and, as the first correspondence in the case – a statement of the home address or, if there is no home address, the address for correspondence or the registered seat of the parties and their statutory representatives and attorneys, and the subject of the case. The complaint should also contain: a description of the decision or other act of deed being complained against, the name of the body whose action or inaction is being complained against, and a description of the breach of law or breach of legal interests.
A power of attorney should be attached to the complaint, if it is submitted by an attorney who did not submit a power of attorney previously.
A complaint of cassation should fulfil the conditions set forth in the court correspondence related to the proceedings and contain a description of the adjudication that is being complained against, with an indication whether the adjudication is being appealed against in whole or in part, a statement of the basis for the cassation with justification, and a request to annul or amend the adjudication, with an indication of the extent of the required annulment or amendment.
- 28. Possibility of bringing proceedings via information technologies
A complaint in electronic form, in the form of an e-mail, appears permissible if it is furnished with an electronic signature verified by means of a valid security certificate. In such a situation, the electronic signature would be deemed to have the same legal effect as a handwritten signature. However, the recognition of complaints in this form would necessitate the introduction of solutions to check the authenticity of the electronic signature.
- 29. Court fees
A court fee in the form of a permanent or relative entry is levied on correspondence initiating proceedings before an administrative court, i.e. complaints, complaints of cassation and requests to renew proceedings. A relative entry is levied in cases where the subject of the complaint is a pecuniary debt. In other cases, a permanent entry is made. The court fee should be paid when the correspondence is submitted to the court, wither in cash or by bank transfer to the account of the relevant court.
- 30. Compulsory representation
There is no obligation to have a legal representative in proceedings before a court of I instance. Only a complaint of cassation or an appeal against a rejection of a complaint of cassation, submitted to the Supreme Administrative Court, must be prepared by a lawyer or a legal counsellor. However, this obligation does not apply if these, means of appeal are prepared by a judge, prosecutor, notary public, professor or doctor habilitatus who are a party to proceedings or a representative or attorney thereto, or if the appeal is submitted by a prosecutor or by the Polish Ombudsman.
- 31. Legal aid
Legal aid takes the form of an exemption from court fees or the appointment of a lawyer, legal counsellor, tax advisor or patent attorney. Legal aid is granted to a party either to a full extent or partial extent. Legal aid is granted to a natural person to a full extent if he demonstrates that he cannot afford to pay any costs of proceedings whatsoever, and to a partial extent if he demonstrates that he cannot afford to pay some of the costs of the proceedings without affecting his financial existence and that of his family.
Legal aid may also be granted to a legal person, as well as an entity devoid of legal personality, to a full extent if he demonstrates that he cannot afford to pay any costs of proceedings whatsoever, or to a partial extent if he demonstrates that he has insufficient resources to cover the full cost of the proceedings.
An application for legal aid is considered by the voivodship administrative curt before which proceedings are taking place or are due to take place. There is a right of appeal against the court's decision in this matter.
- 32. Fine for abusive or unjustified applications
No penalties are envisaged for incorrect or unjustified applications.
- B. MAIN TRIAL
- 33. Fundamental principles of the main trial
The basic principles in administrative court proceedings are:
- the principle of the right to an administrative court,
- the principle of two instances of administrative court proceedings,
- the principle of the faculty of disposal in administrative court proceedings,
- the principle of the adversary trial system in administrative court proceedings,
- the principle of the openness of administrative court proceedings,
- the principle of assistance for the parties to administrative court proceedings,
- the principle of the equality of the parties to administrative court proceedings.
The source of the principles in administrative court proceedings are both Polish law, especially the Constitution of the Republic of Poland, and the Act on Proceedings Before Administrative Courts and the Convention on the Protection of Human Rights and Fundamental Freedoms.
- 34. Judicial impartiality
The principle of impartiality in court proceedings is enshrined in the Constitution. The institution of the exclusion of judges is an important guarantee of this principle. A judge may be excluded ex lege or upon application.
A judge is excluded ex lege in the following cases:
1) cases in which he is a party or maintains such a legal relationship towards one of the parties that the outcome of the case would affect his rights or duties;
2) cases involving his spouse, relatives or kinsmen in direct line, lateral relatives up to the fourth degree, and lateral kinsmen up to the second degree;
3) persons connected to him by virtue of adoption, care or tutelage;
4) cases in which he was or remains an attorney to one of the parties;
5) cases in which he has rendered legal services to one of the parties or any other services in connection with the case;
6) cases in which he has taken part in the handing down of the adjudication that is being complained against, as well as in cases determining the validity of a given legal instrument which he prepared or took part in preparing, as well as in cases in which he took part as a prosecutor;
7) cases in which he has taken part involving the activity of public administrative bodies.
The reasons for exclusion continue upon the termination marriage, adoption, care or tutelage.
A judge who has taken part in the issue of an adjudication covered by an appeal to renew proceedings may not adjudicate on this appeal.
Furthermore, a court excludes a judge at his own request or at the request of a party if the kind of relationship exists between the judge and the party or his attorney that might cast doubts upon the judge’s impartiality.
- 35. Possibility to rely on the new legal arguments in the course of proceedings
After submitting a complaint during proceedings before a court of the I instance, the complainant may elaborate on both the legal basis and the statement of reasons for the complaint. The voivodship administrative court decides within the limits of a given case, and is not bound by the charges and motions of the complaint, or by the cited legal basis.
However, a different principle applies in proceedings before the Supreme Administrative Court. This court is bound by the limits of the complaint of cassation, and considers ex officio only the invalidity of the proceedings. Following submission of complaint of cassation, the party may only provide a new statement of reasons for the cassation.
- 36. Persons allowed to intervene during the main hearing
The parties to an administrative court case are the complainant and the body whose action or inaction is the subject of the complaint. A party who has taken part in administrative proceedings and has not submitted a complaint, but whose legal interests are affected by the outcome of the court proceedings, is a participant to the proceedings having the same rights as a party. Participation may also be claimed by a person who has not taken part in administrative proceedings, if the results of the proceedings concern his legal interests. A social organisation may take part in proceedings also if the case falls within the scope of its statutory activity.
- 37. Existence and role of the representative of the State (“ministère public”) in administrative cases
The prosecutor or Polish Ombudsman may participate in any proceedings and submit a complaint, complaint of cassation, appeal, or request to renew proceedings, if in their opinion this is necessary in order to safeguard the rule of law or civic and civil rights. In such a case, they are entitled to the rights of a party.
- 38. Existence of an institution or a person with a role analogous to the French "Commissaire du gouvernement"
See answer 37.
- 39. Termination of court proceedings before the final judgment
A court issues a decision on the termination of proceedings when:
1) the complainant has effectively withdrawn his complaint;
2) in the event of the death of a party, if the subject of the proceedings relates solely to the rights and duties of the deceased person, unless a person whose legal interests are connected with the outcome fop the proceedings applies for participation therein;
3) if the proceedings have become groundless for other reasons.
- 40. Role of the court registry in serving procedural documents
Correspondence reaching a court is directed by the director of the secretariat to the head of the division, who issues an instruction on how to proceed with the correspondence. Case correspondence and conclusions are not sent to the parties unless such an instruction is issued.
- 41. Duty to provide evidence
Public administration body in administrative proceedings has to collect and consider all evidences of the case. In general the court is not conducting the evidence proceedings. Only exceptionally, the court acting ex officio or at the request of the party, can conduct the supplement evidence proceedings on documents. That’s possible only when such proceedings are necessary for clarifying serious doubts and will not cause excessive extending of court’s proceedings.
- 42. Form of the hearing
In principle, court proceedings are open. Apart from the parties and summoned persons, only adults may enter the courtroom. Only summoned witnesses have access to proceedings in camera. The court decides ex officio whether the entire proceedings should be held in camera or just a part thereof, if holding the proceedings in public might endanger morals, state security or the public order, and also if details that are a state or official secret might be divulged. At the request of a party, a court orders proceedings to be held in camera if this is required in order to protect a party’s private life or other important private interest. The following may be present during proceedings in camera: the parties, their statutory representatives and attorneys, the prosecutor, and the confidantes, two for each party.
After the judge has delivered his report, first the complainant and then the administrative body submit their demands and conclusions and provide explanations orally. They may also indicate the legal and factual basis for their demands and conclusions. The presiding judge allows the parties to speak according to the order of priority he has given them.
- 43. Judicial deliberation
Before delivering judgment, a court holds a consultation behind closed doors. It should be held immediately after the proceedings have closed. The members of the adjudicating bench and the recording clerk are present at this consultation, unless the presiding judge considers the recording clerk’s presence to be superfluous. A judge who has taken part in the adjudication on the case is not excluded from this consultation. The consultation and the voting on the outcome of the case are secret, and no exemption is allowed. The consultation includes a discussion, a vote on the verdict to be handed down and on the fundamental reasons behind the decision, and the recording of the verdict in writing.
The presiding judge collects the votes of the judges, beginning with the judge with the shortest length of service as an administrative court judge, and himself casts the last vote. The judge rapporteur, if appointed, votes first. A verdict is passed by a majority of votes. A judge who voted against the majority may submit a votum separatum and is obliged to justify it in writing before signing it. A votum separatum may concern the same statement of reasons. The filing of a votum separatum is publicly announced, and if the member of the adjudicating bench who has submitted a votum separatum agrees to the disclosure of his name, his name is also disclosed. The verdict is signed by the entire adjudicating bench.
- C. JUDGMENT
- 44. Grounds for the judgment
The statement of reasons for a verdict should contain a concise description of the case, the claims raised the opinions of the remaining parties, the legal basis for the decision, and a justification thereof. If, following a consideration of the complaint, the case is to be reconsidered by the administrative court, the statement of reasons should also contain instructions regarding further proceedings. The statement of reasons should also include an indication of the binding provisions and its significance and interpretation in relation to the case in question. The Supreme Administrative Court justifies all its decisions ex officio. The Voivodship Administrative Court only justifies ex officio those judgements in which a complaint has been recognised.
- 45. Applicable national and international legal norms
The most frequently cited legal instruments in judgments are: the Act of 30th August 2002 Law on Proceedings Before Administrative Courts (Journal of Laws of 2012, item 270 - consolidated text); The Regulation of the Council of Ministers of 16 December 2003 on the amount and detailed rules for collecting charges in proceedings before administrative courts (Journal of Laws of 2003 No. 221, item 2193, as amended); the Constitution of the Republic of Poland of 2nd April 1997 (Journal of Laws of 1997, No. 78, item 483); the Act of 25th July 2002 Law on the System of Administrative Courts (Journal of Laws of 2014, item 1647 – consolidated text); and, as of 1 May 2004, European Union law.
- 46. Criteria and methods of judicial review
In principle, an administrative court is a court of cassation which investigates the compliance with the provisions of law of an act or deed by an administrative body. If the court decides that the act or deed does not comply with the law, it rescinds it or declares it void. When delivering judgment, the court performs a legal assessment of the act and provides guidelines regarding an application of the law in a given individual case, or states that the decision that was complained against is ineffective. This brings the administrative court’s role to a close, and the case reverts to the administrative bodies, who take further action.
Therefore, the administrative court merely investigates questions to the facts of law on the basis of the factual status established by an administrative body. Ex officio or at the request of the parties, the court may conduct additional evidence from the documents, if this is necessary in order to clarify major doubts and will not unduly prolong the proceedings. Neither the scope of the administrative court’s control powers nor the criteria for the controls performed by the court provide the basis on which to assess the expediency of the consideration of the case by the administrative body.
However, since the Act of 9th April 2015 on the amendment of the Law on Proceedings Before Administrative Courts entered into force (15th August 2015):
1) the Supreme Administrative Court has possibility to examine the appeal on its merits if it considers that the essence of the case has been sufficiently clarified;
2) the voivodship administrative courts (courts of first instance) have been granted the power of adjudicating on the merits – if the authority does not observe the court’s obligation to issue a decision or ruling within a time limit specified by the court, the court will, at the party’s request, issue a decision on the merits, if this is allowed by the circumstances of the case.
- 47. Distribution of legal costs
In principle, the parties bear the costs of their involvement in a case. A court may award legal aid to a party, if the party applies for it prior to or during proceedings. Legal aid takes the form of an exemption from court fees or the appointment of a lawyer, legal counsellor, tax advisor or patent spokesman. Legal aid is granted to a party either to a full extent or partial extent. Full legal aid consists of an exemption from court fees or the appointment of a lawyer, legal counsellor, tax advisor or patent spokesman. Partial legal aid consists only of an exemption from court fees in whole or in part, or only from court fees and expenses, or only the appointment of a lawyer, legal counsellor, tax advisor or patent spokesman. Partial exemption from fees or charges may involve release from the duty to pay a fraction of these costs or a specific sum thereof.
- 48. Composition of the court (single judge or a panel)
In principle, an administrative court adjudicates in a bench composed of three judges in both instances. A verdict is issued by the court in a full bench of the judges who took part in the adjudication. The verdict may be issued only by the judges before whom the proceedings took place immediately prior to the issue of the judgement.
In case of adjudicating in camera an administrative court is composed of a single judge.
- 49. Dissenting opinions
A judge who voted against the majority may, when signing the sentence, provide a votum separatum and is obliged to justify this opinion in writing before signing it. A votum separatum may concern the same statement of reasons. The filing of a votum separatum is publicly announced, and if the member of the adjudicating bench who has submitted a votum separatum agrees to the disclosure of his name, his name is also disclosed. The verdict is signed by the entire adjudicating bench, in other words also by the judge who submitted a votum separatum.
- 50. Public pronouncement and notification of the judgment
A verdict is announced at an open session. The absence of the parties does not prevent the delivery of the verdict. If the announcement of the verdict was postponed, it may be announced by the presiding judge or one of the members of the adjudicating bench. A verdict is announced by reading the sentence. After the sentence has been read, the president or judge rapporteur states the reasons for the decision orally, but may refrain from doing so if the verdict was decided upon behind closed doors. A justification of the verdict is prepared ex officio only when court considers the claim. When the claim is dismissed a justification is prepared on the request of interested party.
- D. EFFECTS AND EXECUTION OF JUDGMENT
- 51. Authority of the judgment. Res judicata, stare decisis
A court verdict is binding if there is no recourse of appeal against it. A lawful verdict is binding upon not just the parties and the court which issued it, but also upon other courts and other state authorities, and also other persons, if the provisions of law states so. A binding judgement is a res iudicata only in respect of that which was the subject of the decision regarding the complaint.
- 52. Powers of the court in limiting the effects of judgment in time
The effects of a verdict cannot be limited in time.
- 53. Right to the execution of judgment
Execution is governed by two separate regulations. The first of them is laid down in the Code of Civil Procedure. Pursuant to this Code, a valid court verdict is a deed of execution, to which an enforceability clause is provided by the regional court competent for the debtor. If the area of jurisdiction cannot be determined, the enforceability clause is provided by the regional court in whose area the execution is to be performed, and if the creditor intends to undertake execution abroad – by the regional court in whose area the deed of execution was drawn up. A deed of execution furnished with an enforceability clause is an executive instrument, providing the basis for execution carried out under the terms of the Code of Civil Procedure.
A second procedure is envisaged by the Act on Execution Proceedings in the Administration. Administrative execution is applied to obligations stemming from the decisions of the relevant bodies or - with regard to the government administration and units of territorial self-government – execution is applicable directly from the letter of the law, unless court execution proceedings are required for these duties on the basis of specific legal regulations.
Furthermore, if an administrative body declines to abide by the decision of a court reached during proceedings and in connection with the consideration of a case, the court may impose a penalty on that body.
- 54. Recent efforts to reduce the length of court proceedings
Protection against protraction of a case is envisaged in the Act of 17 June 2004 Law on complaints about a breach of the right to a trial within a reasonable time (Journal of Laws No. 179, item 1843). It regulates the principles and manner in which to consider the complaint of a party whose right to have his case considered without undue delay has been breached as a result of the action or inaction of a court. According to this act, a party may submit a complaint to determine that in the proceedings in question, his right to have his case considered without undue delay has been breached, if the proceedings are taking longer than the amount of time necessary to determine the legal and factual circumstances that are important for determining on the outcome of the case, or longer than the amount of time necessary to arrange execution or the performance of a different court verdict (protraction of proceedings).
The provisions thereof are applicable to proceedings before administrative courts.
On 1 May 2009, an amendment to the aforementioned law came into force. The amendment has introduced the obligation, inter alia, to award of a pecuniary compensation in the event there are sufficient grounds for complaint about the length of the proceedings, where the amount of the compensation ranges from PLN 2,000 (ca. EUR 500) to PLN 20,000 (ca. EUR 5,000).
In addition to the existing complaint alleging inaction on the part of a body, a complaint concerning the excessive length of proceedings before public administration bodies has been introduced. The change was introduced by the Act amending the Code of Administrative and the Law on Proceedings before Administrative Courts (Journal of Laws of 2015, No. 6, item 18 and No. 76, item 409), which has become effective as of 11 April 2011.
The above mentioned Act of 9th April 2015 on the amendment of the Law on Proceedings Before Administrative Courts aims to contribute to the acceleration and improvement of the effectiveness of administrative proceedings.
- E. REMEDIES
- 55. Sharing out of competencies between the lower courts and the supreme courts
Administrative jurisdiction consists of two stages. The administrative courts exercise control over the activities of public administration and resolve disputes regarding competencies between units of territorial self-government and between self-government bodies of appeal. Voivodship administrative courts, being courts of I instance, consider all administrative matters, except for those reserved for the exclusive jurisdiction of the Supreme Administrative Court.
The Supreme Administrative Court:
1) considers appeals against the judgments of voivodship administrative courts in accordance with the terms of the statute;
2) adopts resolutions intended to clarify legal provisions whose implementation has caused discrepancies in the jurisdiction of administrative courts;
3) adopts resolutions containing a decision on legal matters that raise serious doubts in a specific court administrative matter;
4) resolves disputes regarding competencies between units of territorial self-government and between self-government bodies of appeal;
5) considers other matters belonging to the scope of the Supreme Administrative Court on the basis of separate statutes.
- 56. Recourse against judgments
The Supreme Administrative Court is an administrative court of II instance. A party dissatisfied with a verdict or decision issued by a voivodship administrative court can submit a complaint of cassation to the Supreme Administrative Court. A complaint of cassation may be based on the following basis: a breach of substantive law through faulty interpretation or incorrect implementation thereof; and a breach of the provisions on the proceedings, if this might have affected their outcome. In cases envisaged in the statute, it is also possible to submit a complaint against an order by a Voivodship Administrative Court. The Supreme Administrative Court will consider the matter within the confines of a complain of cassation, but shall consider the invalidity of the proceedings ex officio. The control of the adjudications of a voivodship administrative court concerns only their compliance with the law.
- F. EMERGENCY AND SUMMARY PROCEEDINGS / APPLICATIONS FOR INTERIM RELIEF
- III – NON-JUDICIAL SETTLEMENT OF ADMINISTRATIVE DISPUTES
- 60. Role of administrative authorities in the settlement of administrative disputes
Administrative disputes are resolved by administrative bodies that act in accordance with the provisions of the Code of Administrative Procedure. These bodies guard the rule of law and take all the steps necessary to carefully clarify the stat of affairs and resolve the issue, with regard to the social interests and the justified interests of citizens.
These bodies see to it that the parties to proceedings and other participants therein suffer no harm through an ignorance of the law, and ensure the parties of active involvement in every stage of the proceedings. Administrative proceedings occur in two instances. Administrative court proceedings may be initiated only after all the means of appeal have been exhausted, if the complainant had recourse to such resources during proceedings before the relevant court.
- 61. Role of independent non-judicial bodies in the settlement of administrative disputes
Administrative disputes cannot be considered by independent bodies.
It is possible to hold mediation proceedings, presided over by a judge or court referee. Such proceedings are held at the request of a complainant or body of authority, submitted prior to the start of the court case. The purpose of these proceedings is to clarify and consider the factual and legal circumstances of the case and lead the parties to agree on ways of resolving the despite within the confines of binding law. On the basis of the decisions agreed upon in the mediation proceedings, an administrative body annuls or amends the act that was complained against, or takes other actions appropriate to the circumstances of the case and within the limits of its competencies.
- 62. Alternative dispute resolution
In Poland, administrative disputes cannot be resolved by a court of arbitration.
- IV – ADMINISTRATION OF JUSTICE AND STATISTIC DATA
- A. FINANCIAL RESOURCES MADE AVAILABLE FOR THE REVIEW OF ADMINISTRATIVE ACTS
- 63. Proportion of the State budget allocated to the administration of justice
Pursuant to the budget law of 2015, state budgetary expenditures are fixed at no more than PLN 336 680 000 000 (ca. EUR 84 170 000 000)of which PLN 7 180 133 000 (ca. EUR 1 795 033 250) (inclusive: Supreme Court, Constitutional Tribunal, Ministry of Justice, National Council of Judiciary) has been allocated to the judiciary. The administrative jurisdiction (Supreme Administrative Court and 16 voivodship administrative courts) has received PLN 405 552 000.
- 64. Total number of magistrates and judges
There are about 10000 judges in Polish legal system. There are no magistrates in our court system.
However it exists in Polish legal system the legal institution of „court assessor” both in common courts and in administrative courts. The appointment as court assessor both in common courts and in administrative courts was has been suspended after the judgment of Polish Constitutional Tribunal of 24th October 2007 (file no. SK 7/06) on constitutionality of assessors.
In case of court assessors in administrative judiciary see topics 11 and 12 (D. Judges)
- 65. Percentage of judges assigned to the review of administrative acts
There are 112 judges in Supreme Administrative Court and 499 judges working in voivodship administrative courts in Poland. The total number of judges in Poland is slightly higher than 10 000.
- 66. Number of assistants of judges
Administrative court judges use the services of assistants. Assistants have higher legal education in the field of law. Some of them are trainee barristers. The Act of 12 February, 2010 amending the Act – Law on the on the System of Administrative Courts and Act – Law on Proceedings before Administrative Courts (entered into force on 10 April, 2010) introduced the post of senior assistant (assistant, who has held her/his post for at least 5 years may be employed as senior assistant.
It is further planned to provide an individual assistant for each administrative judge. Currently some judges of voivodship administrative courts still have to share an assistant.
In the Supreme Administrative Court in the goal was reached and number of assistants equals the number of judges. There are 112 assistants employed by the Supreme Administrative Court and 274 assistants employed by all the 16 voivodship administrative courts.
- 67. Documentary resources
The Supreme Administrative Court has a library containing collections of legal documents, periodicals and textbooks on every branch of law, especially administrative law, and press reviews.
- 68. Access to information technologies
Every employee at the Supreme Administrative Court has a computer, with suitable software with which to edit texts and manage documentation, legal databases and Internet access. The Supreme Administrative Court also has an internal information system on the subject of cases dealt with. Thanks to this, information can be transferred between individual Court’s departments, and statistics can be kept.
- 69. Websites of courts and other competent bodies
The administrative courts (and other courts and tribunals) and most administrative bodies have their own websites. The most important ones are:
- B. OTHER STATISTICS
- 70. Number of new applications registered every year
|2015 ||Number of cases accepted ||Number of cases resolved ||Cases pending ||Average duration of a case |
|Supreme Administrative Court ||18 634 (plus 22 064 left over from the previous period) ||14 892 ||40 698 ||18 months |
|Voivodship Administrative Courts ||83 531 (plus 30 989 others left over from the previous period) ||81 353 ||114 520 ||3 - 6 months |
- 71. Number of cases heard every year by the courts or other competent bodies
see answer 70.
- 72. Number of pending cases
see answer 70.
- 73. Average time taken between the lodging of a claim and a judgment
see answer 70.
- 74. Percentage and rate of the annulment of administrative acts decisions by the lower courts
Voivodship administrative courts in 2015 had annulled 22,03 % of administrative decisions claimed. In years 2014 and 2013 these numbers were 22,20 % and 24,36 % respectively.
- 75. The volume of litigation per field
Claims (cassation appeals) filled in the Supreme Administrative Court in 2015:
- Cases concerning foreigners: 88 cases – 0,47 % of new applications
- Cases concerning taxes: 7885 cases – 42,31 % of new applications
- Cases concerning urban planning: 695 cases – 3,73 % of new applications
- Cases concerning architecture: 1280 cases – 6,87 % of new applications
- Cases concerning environmental protection: 407 cases – 2,18 % of new applications
- Cases concerning customs duties: 440 cases – 2,36 % of new applications
- Cases concerning public roads and railway: 754 cases – 4,04 % of new applications
- C. ECONOMICS OF ADMINISTRATIVE JUSTICE