Less bureaucracy, American Investor, June 2011
Cases should now be handled more smoothly by administrative authorities
Amendments to the Polish Administrative Procedure Code entered into force on April 11, 2011, with the goal of streamlining administrative procedure and closing gaps in the law. Among the new solutions, the possibility of filing a complaint for delay of proceedings handled by an administrative authority and the changes concerning issuance of a decision by an administrative review authority deserve particular attention.
New complaint for delay in administrative proceedings
The amendment introduced a means for parties to file a complaint with the administrative court against delay in proceedings before a public administrative authority. Before it was only possible to file a complaint for inaction of an authority, i.e. failure to resolve a matter by the applicable deadline, but in practice that did not solve the problem because the authorities would often extend the deadline without any good reason so that technically they were not “inactive.” Now, a complaint for delay may be filed before the deadline for resolving the matter.
The complaint is heard by the administrative court. The code does not define “delay” precisely, so to determine whether the proceedings before the authority have continued longer than necessary to handle the matter, the court will consider the complexity of the case, both factual and legal, as well as the conduct of the parties. If the complaint is upheld, the court will order the administrative authority to issue a decision or take other action by a specific deadline. If the authority fails to comply, the party may seek a fine against the authority.
Administrative review should decide the merits
The amendment limits the ability of administrative review bodies to remand cases for reconsideration by the original authority. Vacating a decision issued in the first instance and remanding the case for reconsideration was supposed to be a minor exception to the rule that an administrative authority reviewing a decision by the original authority should decide the merits of the matter. In practice, administrative review authorities began to issue such decisions as a matter of course, avoiding an examination of the merits of the case and thus extending the proceedings. The amendment has limited the possibility of vacating a decision and remanding the matter to the authority of first instance to situations where the decision was issued in breach of procedural regulations and the issues requiring clarification have a material impact on the outcome of the case.
If, however, the regulations provide for issuance of a decision on an official form, including by means of electronic communication, and there are grounds to amend the decision, the appellate body should now vacate the decision and order the authority of first instance to issue a particular decision.
Attorney or agent for service
Another important change concerns service of papers on a party with its registered office outside of Poland. As in civil procedure, the party should now appoint an attorney in Poland or an agent for service. Otherwise, papers addressed to the party will now be left in the case file and deemed served.
Notice by telephone
In urgent matters it is now possible to summon a party to participate in an operation undertaken by the authority or to provide explanations or testimony by telephone.
Reopening final decisions
Another amendment concerns final decisions, which previously could be amended or set aside either by the authority that originally issued the decision or by an authority at a higher level (acting in this case as an authority of first instance). Now a final decision may be amended or set aside only by the authority that issued the decision. If a party acquired a right through the decision, however, consent of the party is also required. The Parliament found that the previous approach led to pointless competition between authorities or unnecessary disputes over jurisdiction.
The amendment introduced a solution seeking to put a stop to the practice of repeated challenges in a matter that the authority has already resolved, when the facts have not changed. Now, if a petition challenging an administrative decision has been considered and held to be groundless, and the groundlessness is indicated in the response to the petition, but the party nonetheless renews the petition without demonstrating any new circumstances, the authority may uphold its position without notifying the party, but merely enter a relevant notation in the case file.
In short, the amendment to the Administrative Procedure Code closes several gaps in the procedure and provides new solutions to expedite the resolution of administrative matters. It remains to be seen how these solutions work in practice.
Published in: American Investor, June 2011