Amendment of CPA regulations

Amendment of CPA regulations

The lengthiness of proceedings is a frequent problem in the adjudication of administrative cases. This issue is particularly relevant when it comes to various kinds of proceedings related to business activity, such as the obtaining of a concession.

Works are currently underway in the Polish Senate to amend the provisions of the Code of Administrative Procedure of 14 June 1960 (hereinafter: CPA). In the statement of reasons for the bill[1], it is mentioned that the amendment was necessitated by, among other things, frequent failures by public administration authorities to keep the deadlines for the consideration of cases and inefficient communication with the parties as to the factual and legal circumstances which affect their legal position. The new regulations are expected to introduce solutions which will streamline and accelerate administrative proceedings while contributing to a more partnering approach of the administration to citizens.

1. Introduction of the principles of adjudication to the party's advantage

The amendment of the CPA provisions provides for changes in the regulations which govern the conduct of administrative proceedings by adding Article 7a and Article 81a which establish a principle that any factual doubts should be resolved to the advantage of the concerned party. According to the above-mentioned provisions, if the administrative proceedings concern the imposition of an obligation onto the party, or the restriction or withdrawal of a right from the party, and some doubts as to the substance of the relevant legal norm or unresolvable doubts as to factual situation remain, such doubts should be resolved to the advantage of the party unless this is contrary to, inter alia, disputed interests of the parties or third party interests directly affected by the outcome of the proceedings. The above-mentioned principles have been introduced with a view to implementing a more friendly administration.

2. Introduction of authority reminder

In order to ensure greater clarity and consistency of CPA regulations, as well as to provide an effective measure for complaining about the administration's failure to act or lengthiness of proceedings, the bill introduces the definitions of these concepts (failure to act and lengthiness of proceedings) and establishes a new remedy in the form of remainder (in lieu of the current appeal to remove a breach of the law). At the same time, the introduction of the obligation to submit the appeal together with copies (rather than originals, as currently required) of the case files will not withhold the possibility for the first instance authority to continue with the consideration of the case.

3. Change of principles for communication with the parties

According to the proposed Article 79a of the CPA, in proceedings initiated at request of a party, the public administration authority will be obliged to indicate the prerequisites which are within the control of the party and have not been met or demonstrated as at the date of sending the relevant information, which may result in the issuance of a decision contrary to the request of the party. The introduction of this provision is intended to motivate public administration authorities to thoroughly investigate the content of the party's demands at all stages of proceedings initiated at request of such party.

4. Optional application for reconsideration of the case

The bill also introduces optionality principle with respect to the application for reconsideration of the case. A party will still be able to exercise its right to have its case considered twice on a merit basis by the same authority, but the exercise of this right will no longer be a prerequisite for the submission of a complaint to an administrative court.

From the entrepreneurs' point of view, including those operating in the mining sector, the planned changes go in the right direction. The proposed solutions will certainly contribute to the accelerated adjudication of administrative cases, remove excessive formalism and introduce the principles for resolution of doubts to the advantage of the entrepreneur.

At the moment, the bill is being processed by the Senate. The expected effective date for the above regulations is 1 June 2017.

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