NEWSLETTER No 72, July 2017
Amendments to the Administrative Process Code – Part II
1 June 2017 witnessed the coming into force of the legislative Act regarding amendment of the Administrative Process Code and of certain other statutes (“the Act”). Set out below is the second part of our summary of some of the key changes to the Administrative Process Code.
By introducing the legal institution of silent, or tacit, settlement, the Polish legislature implemented one of the prescriptions of the European Parliament and Council Directive concerning services on the internal market. Silent settlement will be possible for matters expressly indicated in specific regulations. A matter may be deemed to be silently settled if, within the statutory deadline (usually set at one month), the public administration authority: (i) does not issue a decision or ruling concluding proceedings in the case (tacit conclusion of proceedings) or (ii) does not lodge an objection in the form of a decision (tacit permission). Under these circumstances, the matter at hand shall be deemed to have been settled as requested by the party.
Clarificatory proceedings, cassation decisions
Upon consideration of an appeal, the competent authority generally rules on the merits of the case, e.g. by overturning the decision complained of and issuing a new one. If, however, the original decision had been issued in breach of the procedural rules, and the aspect of the case which requires clarification is of material relevance to the outcome, the appeals authority may repeal the decision in its entirety and refer it for renewed consideration at first instance (in what is known as a cassation decision, or decyzja kasatoryjna). Consequent to the amendment of the Administrative Process Code, in a case where there arise prerequisites for issue of a cassation decision but, in its appeal, the appellant had requested that all material circumstances of the case be clarified by the appeals authority, the latter shall be bound to carry out clarificatory proceedings in this scope, whereupon issue of a cassation decision will not be possible in that it will now be up to the appeals authority to rule on the merits of the case.
Consequent to the recent amendments, the Administrative Process Code now provides for simplified proceedings, which may be resorted to in cases expressly covered by specific regulations (most of these concern legal interests or duties of one party only). Under this fast track procedure, evidentiary proceedings will, in general, be limited to: (i) evidence adduced by a party along with its application for commencement of proceedings and (ii) evidence which can be verified in reference to information at the disposal of the competent authority. Such simplified proceedings will generally qualify for silent settlement, as described above. As a general rule, cases handled under the simplified procedure should be completed promptly, and not later than within one month following commencement.
Other changes – An overview
Under the amended Administrative Process Code, duly authorised employees of administrative authorities now have the power to certify documents, and documents endorsed by them as authentic have the status of official documents.
In a noteworthy development, in cases initiated at the request of a party, a public administrative authority, when notifying such party of the possibility of stating its position with respect to evidence and materials assembled in the case, must specify any requirements on the side of such party which have not been met and which, if they will not be met, will preclude the ruling requested by such party.
Sessions in cooperation
The new art. 106a of the Administrative Process Code elaborates upon the principle of cooperation between public authorities for the good of the proceedings, providing that the authority handling the case may call a joint session with another authority in accordance with art. 106 if, as a result, such other authority might adopt its position on the case more quickly.
Amicable settlement, mediation
Amendment of art. 114 of the Administrative Process Code extends the catalogue of matters which may be settled amicably. The previous requirement to the effect that amicable settlement must be preceded by “simplification or acceleration of the proceedings” no longer applies. The amendments also involved insertion into the Administrative Process Code of new arts. 96a through 96n, regulating the legal institution of mediation. The unique features of mediation in administrative proceedings include the trait that mediation may be pursued not only between the parties to administrative proceedings, but also between the parties and the public authority before which the proceedings are being pursued; in the latter case, an impartial mediation must be involved.
Waiver of the right to appeal
Under the amended rules of administrative procedure, a party may waive its right to lodge an appeal (before the deadline for appeal has elapsed) by serving a declaration to that effect on the authority which had issued the decision. Apart from that, the amended art. 130 §4 of the Administrative Process Code provides that a decision may be implemented prior to elapse of the deadline for appeal not only if such decision was in line with the requests of all parties concerned (as was hereuntil the case), but also if all the parties have waived their right to appeal.
Facultative application for renewed consideration of the case
In cases in which there is no higher authority over that ruling at first instance (e.g. cases ruled upon by a self-government collegiate appeals body or by the Polish Financial Supervision Authority), a party unsatisfied with the original decision, rather than appealing it, may request renewed consideration by that same body. Until the amendments came into force, an application for renewed consideration by the same body was mandatory before a complaint to the administrative courts became an option; now, a party dissatisfied with the original decision may skip this step, and take its complaint directly before the administrative courts.
The overarching objectives of this major spate of amendments to the Administrative Process Code comprised shortening the duration of administrative proceedings and reducing red tape. Just how far the presently introduced institutions – in particular silent settlement, simplified proceedings, and the possibility of waiving the right to appeal – go in this direction will become apparent in administrative proceedings commenced after 1 June 2017.
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