CONCEPTION OF A PARTY TO PROCEEDINGS IN POLISH GENERAL ADMINISTRATIVE PROCEDURE

Abstract

The authors characterizes the Polish concept of a party to administrative proceedings. The authors proves that a party to proceedings is a central institution of Polish general administrative procedure. The authors indicates that complete absence of a subject or absence of a subject that may be considered a party to administrative proceedings leads to a situation in which an administrative procedure may not proceed – it will not be initiated if this fact comes out prior to such initiation (as a result of preliminary check) or will be discontinued nonsubstantively (without any resolution in the case) if such fact comes out in the course of proceedings or if a given subject loses the status of a party to pending proceedings. ABSTRAKT Autori charakterizujú koncept účastníkov konania v poľskom všeobecnom správnom konaní. Autori dokazujú, že účastník konania je ústrednou inštitúciou poľského všeobecného správneho konania. Autori naznačujú, že úplná neprítomnosť subjektu alebo neprítomnosť subjektu, ktorý môže byť považovaný za účastníka správneho konania, vedie k situácii, keď správne konanie nemusí pokračovať nebude začaté, ak k tomu dôjde pred takýmto začatím (v dôsledku predbežnej kontroly) alebo bude zastavené bezdôvodne (bez prípadného rozhodnutia vo veci), ak takáto skutočnosť vyjde v priebehu konania alebo ak daný subjekt stratí postavenie účastníka v prebiehajúcom konaní. I. GENERAL REMARKS Specification of the range of the parties to proceedings is one of the first actions undertaken by the competent public administration authority. Consequences of the findings made by the authority are essential to further existence of administrative proceedings. In effect, it is beyond doubt that the institution of a party to proceedings is an essential institution of administrative procedure and, as such, deserves extensive analysis both from theoretical and practical perspective. This study, with a view to fully discussing that procedural institution, is going to rely on the currently available literature in the field (output of the doctrine of administrative procedure) and the latest opinions of the judiciary, including predominantly case-law of administrative courts (Supreme Administrative Court, Voivodeship Administrative Courts) 1 PhD Candidate, Uniwersytet Śląski w Katowicach, Wydział Prawa i Administracji, Polska University of Silesia in Katowice, Faculty of Law and Administration, Poland, ORCID NO: 0000-0003-3775-2815. 2 Master's degree, Uniwersytet Śląski w Katowicach, Wydział Prawa i Administracji, Polska University of Silesia in Katowice, Faculty of Law and Administration, Poland, ORCID NO: 0000-0002-9264-1598. 3 C.f judgment of the Voiveodeship Administrative Court in Poznań of 6 November 2019, file reference: IV SA/Po 276/19, Legalis no. 2246867. 4 Hereinafter referred to as “SAC.” 5 Hereinafter referred to as “VAC.” Since there are several Voivodeship Administrative Court in Poland, the seat of the court will also be indicated to distinguish between them. STUDIA IURIDICA Cassoviensia ISSN 1339-3995, ročník 8. 2020, číslo 2 https://doi.org/10.33542/SIC2020-2-04 46 and the Supreme Court. Rulings delivered by ordinary courts may also be incidentally cited. The analysis was carried out predominantly using the formal dogmatic method, based on the Polish legislation applicable to the discussed subject matter, and, complementarily, using the empirical method, based on the abovementioned judicial practice. II. LEGISLATION ON POLISH ADMINISTRATIVE PROCEDURE The principal legislative act on Polish general administrative procedure is the Act of 14 June 1960 – Code of Administrative Procedure. CAP governs (Art. 1, Art. 2 and Art. 2a CAP): 1) proceedings before public administration authorities in cases that are within the jurisdiction of such authorities and individually decided by way of administrative decision or without notice; 2) proceedings before other state authorities and other entities appointed to decide matters specified in item 1 by operation of law or on the basis of agreement; 3) in disputes regarding jurisdiction between local government authorities and governmental authorities or between the authorities and entities referred to in paragraph 2; 4) proceedings in matters regarding the issuance of certificates; 5) imposition or meting out of administrative monetary penalties or granting relief in the enforcement of such penalties; 6) the procedure of European administrative cooperation; 7) procedure in matters of complaints and proposals (Part VIII) before state authorities, local government authorities or governing bodies of social organisations; 8) compliance with of the duty specified in Art. 13(1) and (2) of the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) in matters listed in items 1-7 above (in CAP, such scope has been provided for in Art. 1 CAP – in respect of items 1 to 6 and in Art. 2 CAP – in respect of item7). Regardless of the above, the Polish legislator decided also to introduce an exhaustive catalogue of matters in which the CAP shall not apply. This catalogue was specified in Art. 3 CAP. In the Polish legal order, there is a principle presuming application of the CAP (interpretative rule). Under Art. 5 § 1 CAP, if a provision of law mentions generally provisions 6 Hereinafter referred to as the “SC.” 7 I.e. Dz.U. 2020, item 256; hereinafter referred to as “CAP.”. As regards the last major amendment to the Act, c.f. K. Majewski, General principles of Code of Administrative Procedure after amendment of 2017, Annuals of the Administration and Law no. 17 (1), Sosnowiec 2017, p. 165-182. 8 OJ L 119 of 04.05.2016, p. 1, as amended.; hereinafter referred to as “GDPR.” 9 At the same time, CAP stipulates that performance of the duty mentioned in Art. 13(1) and (2) GDPR shall be independent of the duties of public authorities as provided in the CAP and shall not affect the course and outcome of the proceedings (Art. 2a § 2 CAP). 10 Regarding consequences of such an approach, c.f. judgment of the SAC of 12 March 2014, file reference: II OSK 2477/12, Legalis no. 1067705. 11 Certain authors refer to that principle as “principle of exclusive application of the CAP’s provisions,” c.f. ADAMIAK B., ,Komentarz do art. 5 Kodeksu postępowania administracyjnego, In: ADAMIAK B., BORKOWSKI J., Kodeks postępowania dministracyjnego. Komentarz, Warszawa 2019, Legalis. However, such an approach to the provision of Art. 5 § 1 CAP is not accurate. Exclusive application of the CAP’s provisions would exclude the possibility of applying other provisions. InThe Polish legal order, there are plenty procedural provisions contained in other statutory acts which not only apply directly but also modify the solutions adopted in the CAP. They may be referred to as lex specialis in relation to the provisions of the CAP. An example of such provision is Art. 11 of the Act of 21 July 2006 on financial market supervision (i.e. Dz.U. of 2020, item 180). As regards the abovementioned modifications, see the judgment of the SAC of 12 December 2016, file reference: II GSK 1924/15, Legalis no. 1591300, judgment of the SAC of 29 April 2014, file reference: II GSK 320/13, Legalis no. 1042396, judgment of the SAC of 27 January 2014, file reference: II GSK 1626/12, Legalis no. 909829, judgment of the SAC of 7 August 2013, file reference: II GSK 567/12, Legalis no. 737850, judgment of the VAC in Warsaw of 10 November 2009, file reference: VI SA/Wa 1092/09, Legalis no. 828525. STUDIA IURIDICA Cassoviensia ISSN 1339-3995, ročník 8. 2020, číslo 2 https://doi.org/10.33542/SIC2020-2-04 47 of administrative procedure, this shall be understood as the CAP provisions. As a result, it is beyond any doubt that the CAP shall apply to administrative proceedings held by public administration authorities. The rule under Art. 5 § 1 CAP is subject to certain restrictions. In literature of the subject, it is accepted that “it does not refer to situations when legal provisions expressly invoke specific norms of the Code (most often citing specific article numbers) or provide for merely appropriate application of the CAP’s provisions.” It must be emphasized, as P. Gołaszewski and K. Wąsowski did, that an (external) reference mentioned in Art. 5 § 1 CAP should be included in generally applicable legal provisions. The presumption of applicability of the CAP does not prevent the legislator from including procedural rules of administrative nature in other statutory acts. Such provisions, once enacted, are in principle lex specialis in relation to the norms of the CAP. In the light of the above, according to the principle lex specialis derogat legi generali, they will exclude application of the CAP’s provisions or result in their appropriate application. Introduction of the rule assuming application of the Code of Administrative Procedure (k.p.a.) should be considered positive. This principle fills in a possible gap in the legislation and, in consequence, makes the system consistent and complete. Therefore, the Polish legal order does not require supplementation in that area. III. CONCEPTION OF A PARTY TO PROCEEDINGS IN THE CAP The definition of party to administrative proceedings was included in Art. 28 CAP. Under that provision, a party to proceedings (“a party”) is any person whose legal interests or obligations are the object of the proceedings or who requires the intervention of an authority in respect of their legal interests or obligations. The literal understanding of the above provision indicates that the precondition (criterion) of recognizing a given subject as party to the proceedings is the establishment (existence) of a legal interest or obligation. None of the two concepts derive from procedural law provisions, but they r