SSW’s procedural success: Co-financing without contesting the Voivode’s decision
Yesterday, on October 3, 2019, the Provincial Administrative Court in Warsaw (WSA) announced its final judgment on a compliant made by Laude Smart Intermodal S.A. . The case concerned the negative assessment of a project carried out by the Center for Union Transport Projects (CUPT). The WSA agreed with the company, and stated that the project assessment was carried out in a way that infringed the law, and that the breach had a significant impact on the project’s assessment. He referred the matter to the CUPT for reconsideration.
In 2018, Laude – a transport and logistics operator – submitted an application for funding under the OPI & E. The CUPT declining the application because they claimed there was a lack of documents confirming that the public was informed about the issuing of the Voivodes’ decision regarding the conditions of consent for the implementation of the project, as well as the decision approving the construction project and the granting the building permit together with the amending decisions.
CUPT made this assessment, despite the fact that during the procedure the Voivode showed that all the decisions were in accordance with the law and that the public was properly informed.
The SSW team filed a special complaint with the Provincial Administrative Court under the Cohesion Policy Act. In the complaint, our lawyers raised both environmental and procedural issues. They argued that the Viovode’s decisions questioned by CUPT were final and were never contested, and that the investments were already based on these decisions (the oldest contested decisions were made in 2009 and 2010). Our SSW experts argued that the CUPT did not have the power to challenge the final decisions of another public administrative body, and the company itself had no legal possibility to correct any errors in positive decisions received by its competent administration bodies.
The above arguments were upheld by the Provincial Administrative Court. In the verbal justification the court stated that the terms of the assessment cannot be formulated in a way that is impossible to fulfill. The WSA emphasized that it is not the company that issues decisions, but that it is done by a public administrative body, which, according to the WSA, operated under legal provisions. The Provincial Administrative Court found that the CUPT condition is exclusive because it eliminates all projects whose investment process took place before the implementation of the 2011 directive. It also stressed that the entities participating in the assessment did not have the procedure to correct any deficiencies in the final administrative decision.
The WSA pointed out that the body assessing applications for EU subsidies has no right to question the legality of administrative decisions issued by other bodies.
This is a landmark ruling by the Provincial Administrative Court that should affect ongoing and organized in the future competitions.
The complaint was prepared by an interdisciplinary team at SSW, including specialists in administrative proceedings, environmental law and EU funds: Anita Palukiewicz, Wojciech Szaruch, Krystian Trzciński. The team was managed by Łukasz Karpiesiuk, a partner, leader in the practice of public aid and EU funds in the SSW.
Laude Smart Intermodal S.A. is a provider of transport and logistics services and is one of the fastest growing companies in the transport and logistics sector. The company’s main area of activity is the comprehensive organization of transport of various groups of goods using intermodal transport and innovative Laude containers, as well as conventional road, rail, inland and sea transport. The company is an operator of intermodal trains connecting Poland with Ukraine, Russia and Moldova. In addition, the company provides transhipment services at the modern Laude Logistics Center in Zamość.