The Administrative Procedure in Coronavirus Times
The COVID-19 epidemic brings restrictions on the scope of work of businesses, offices, post offices, etc.
How to ensure efficient communication with the offices conducting administrative proceedings? This is currently the dilemma faced by businesses whose activity is regulated and closely related to the possession of government-sanctioned permits, licenses or concessions.
Necessary legislative changes
Under the governmental measures in response to the COVID-19 pandemic, indicate that the course of procedural deadlines will not start even in administrative court proceedings and administrative proceedings, and deadlines already started will be suspended during the epidemic.
Unfortunately, the above measures are not a remedy for lapsing of material deadlines or the validity of legal decisions.
By way of example: you have a permit with an expiry date and you are currently in the process of renewing it. If, for reasons related to the inability of you (as a the permitholder) or the relevant authority or you as a party, no renewal decision is issued before that date, the permission expires. Once the reasons stopping the renewal proceedings have ceased to exist, the renewal proceedings cannot be continued as there is no longer any subject of these proceedings. There would, thus, be a risk of conducting business without the requisite permission(s), which is usually subject to financial penalties or even criminal sanctions. In this respect it is necessary to introduce special statutory solutions.
We recommend that businesses review their permits, clearances and/or concessions in terms of their validity. It is also necessary to verify, in individual acts of Parliament, any material terms/deadlines, which will not be extended by law, and failure to do so may result in expiry of the permits held.
By way of example: a building permit expires if construction work does not start within three years of the permit being granted.
As we are awaiting the introduction of the government’s specific measures, it is worth bearing in mind that the existing provisions of the Administrative Procedure Code. However, blow we present some practical tips in terms of what can be done, when dealing with a governmental agency or authority – so that, despite the ongoing quarantine, the proceedings are not halted.
Although, pursuant to the KPA, a written rule, it is possible to deviate from it . Unless it is expressly stipulated to the contrary, matters may be dealt with orally, by telephone, by electronic means of communication or by other means.
Sending letters to the authority
Applications (requests, clarifications, appeals, complaints) may be submitted in writing, by telegraph, by fax or orally – for the protocol, as well as by other electronic means of communication – via the public administration’s electronic mailbox (such as e-PUAP).
An application in the form of an electronic document should be submitted:
1) include a qualifying electronic signature, a trusted signature, a personal signature, or be authenticated in such a way that the origin and integrity of the verified data can be confirmed electronically;
2) when forms are boilerplate, contain data in an accepted format; and/or
3) contain the electronic address of the applicant.
Creating a trusted profile is simple; virtually all banks offer a way to set up such trusted profile. It is also possible refer to the OBYWATEL.GOV.PL website, where one can find out how to sign a document with a trusted signature.
It is possible to send letters by post; however, please note that to meet the relevant deadline, the use of couriers is not recommended as the date of the postmark or the date of actual delivery of the letter is the relevant date in the eyes of the governmental authorities.
In cases which do not require in-person dealing, an attorney may be appointed. It does not have to be a solicitor or a barrister; it can be any natural person. Moreover, in smaller matters, a governmental authority/agency may not require a power of attorney from a member of the party’s immediate family or household, if there is no doubt as to the existence and scope of the authorisation to act on behalf of the party.
Receipt of letters
After two notifications of letters from offices by post, the presumption of proper delivery of a given letter is established. This is important, as in the case of delivery of a letter with the relevant decision, the time limit for lodging of an appeal starts to run.
The authority may serve letters by means of electronic communication, if a party:
submits an application in the form of an electronic document via the electronic mailbox of the public administration body;
requests the authority to do so and indicates an electronic address to the public administration;
agrees to service of letters in the proceedings by these means and indicates to the public administration body an electronic address.
It is also possible to act through a proxy.
Suspension of Proceedings
Suspension of the proceedings may also be granted at the request of a party. Suspension is subject to the condition that there are no objections from other parties and that there are objections on the basis of public interest objections / conflict. Suspension may last up to three years.
Please note: Only procedural deadlines specified in the KPA are subject to suspension, not material deadlines or deadlines specified in other acts.
Application for reinstatement of a time limit
If, due to health problems, you have not received the letter and you have not met the deadlines as a result of that, e.g. for completing the documents, you can apply for a reinstatement of the deadline. However, you must make sure that the breach was through your own fault.
You must submit a request for reinstatement within seven days from the date on which the cause ceases to exist. At the same time, along such request, you must complete the requisite action for which the original deadline was set.
Please note that restoration of deadlines does not apply to material legal deadlines. It will be up to the relevant governmental authority to ascertain whether this has happened with no fault of the side of the party.
Summons to appear
In cases where the requested person cannot appear because of illness or other obstacle which is impossible to overcome, the authority may take a specific action or accept an explanation or question the requested person in his place of residence. Of course, provided that the circumstances in which the person is found allow it.
