Code of Administrative Procedure - The legislator introduces investment-friendly reform | SSW Legal Alert
The Polish Sejm is currently working on a draft amendment to the Code of Administrative Procedure (CAP). This is the last part of the legislative procedure (the Sejm considers the amendments proposed by the Senate and will refer the bill to the President for signature). The new provisions will introduce solutions which will improve the administrative proceedings, shorten their duration and contribute to a more partnership-like approach between the government and citizens (including entrepreneurs).
The most important suggested amendments of the CAP are as follows:
1. GENERAL RULES OF ADMINISTRATIVE PROCEDURE
The draft envisages introducing the following new principles to the general rules that apply to administrative procedure:
- resolving any unremovable doubts about the facts of the case in favour of the non-governmental party,
- rule of proportionality (the content and form of government action must be proportionate to the aim pursued, in order to maintain balance between the protection of public and individual interests),
- rule of impartiality of government bodies and equal treatment of parties,
- resolving cases in accordance with a government body’s consistent practice (the system of precedent),
- amicable settlement of disputes (mediation and administrative settlement).
The draft also allows envisages a departure from the general principle that a first-instance decision may always be appealed against.
2. EXCESSIVELY LENGTHY PROCEEDINGS AND INACTION BY A STATE AUTHORITY
- defining the concepts of: inaction and excessive length/duration,
- introducing a new remedy in cases of excessively lengthy proceedings or inaction by a state authority: a “reminder” which replaces the current “complaint” made to the higher-level public administration authority
- 7 days term for examining the “reminder”,
- a claim made in respect of excessively lengthy proceedings or inaction may be filed to the administrative court at any time after sending the “reminder” to the relevant organ.
3. CHANGING THE RULES ON INFORMING THE PARTIES
- prior to issuing a decision, a state authority shall be obliged to inform the parties which conditions must be fulfilled in order for a positive decision to be issued.
4. SILENT SETTLEMENT
- the draft amendment includes details of a silent settlement procedure.
5. CHANGES TO APPEALS PROCEEDINGS
- it will be possible to file a claim to the administrative court without applying for a retrial (in situations where a decision may not be appealed against),
- creating a “waiver of the right to appeal” (in order to allow a decision to become final sooner),
- the relevant state authority may uphold a claim by issuing a new decision (without referring the case to the administrative court).
6. CHALLENGING A DECISION TO REMAND A CASE FOR RE-EXAMINATION AT FIRST INSTANCE
- creating a right to challenge a decision to remand a case for re-examination at first instance; this right will replaces a party’s current right to file a “complaint” to the administrative court against such a decision,
- such a challenge must be filed with the administrative court within 14 days of the date on which the re-examination decision was handed down; the challenge will be examined by the court within 30 days.
7. MEDIATION AND ADMINISTRATIVE SETTLEMENTS
- creation of mediation procedure in administrative proceedings,
- mediation will be permissible not only between the parties to a dispute but also between the parties and the relevant government organ,
- government organs will be entitled to suggest initiate concluding a dispute by way of an administrative settlement.
8. CHANGES TO ADMINISTRATIVE COURT PROCEEDINGS
- the applicable deadline for filing a complaint will be retained, even if the complaint is sent directly to the administrative court,
- abolishing the need for party’s to file a summons to the relevant government organ (requesting that it desist from/remedy an unlawful situation) prior to filing a complaint with the administrative court insofar as concerns acts which may not be challenged in administrative proceedings.
From the perspective of entrepreneurs, the proposed amendments should be assessed positively. The proposed solutions will help to accelerate administrative proceedings, to remove excessive formalism and to introduce the principle of resolving doubts in favour of entrepreneurs.
These amendments are expected to enter into force on 1 June 2017.
Should you have any questions concerning the above, or wish to receive further information, please do not hesitate to contact us.
Maciej Krus Ph.D., Of Counsel, Attorney at law
Marta Bokiej, Junior Associate