On 14 August 2021 Polish President signed an amendment to the Code of Administrative Proceedings (CAP, pol. KPA). The amendment will come into force on 16 September 2021. The main change is the introduction of a 10-year time limit after which it is not possible to declare invalidity of an administrative decision issued in gross violation of the law (or without legal basis). It is worthwhile to refer to the effects it will have on the legal system.
Past practice
In legal transactions, administrative decisions issued a dozen or more years ago, or even several dozen years ago, were often held invalid. This solution was not conducive to security and certainty in legal transactions. For example, it is difficult to justify a situation where 30 years after construction of a building, a building permit was declared invalid. The more so as the ownership of such a building changed. These problems were recognised both by the Parliament and the Constitutional Tribunal.
Amendments introduced
The declaration of invalidity of an administrative decision has ex tunc (retroactive) effect. It has an overwhelming impact on the administrative proceedings, as it can also lead to other decisions that were issued in connection with the eliminated decision being overturned. The adopted act interestingly contains only two legal provisions. However, they introduce significant changes in administrative proceedings.
Article 1 of the adopted act amends Article 156 § 2 of the CAP. In accordance with the enacted wording, an administrative decision shall not be declared invalid if ten years have lapsed from the date of its delivery and if the decision has produced irreversible legal effects. Moreover, under Art. 2 of this act, if thirty years have elapsed from the date on which the decision was delivered, proceedings to declare the decision invalid will not be commenced.
Seemingly, this short amendment constitutes a novelty within the administrative procedure. Previously, it was possible to declare a decision invalid because it was issued in gross violation of the law, regardless of how long had passed since its issue.
Amendment to the Construction Law
It is worth noting that this is not the only amendment that limits the possibility of challenging final decisions. In 2020 the Parliament amended the Construction Law. A ban was introduced on declaring a construction permit null and void if five years have passed since its delivery. This solution is similar in content to the amended Art. 156 § 2 of the CAP. It introduces a much shorter period in which it is possible to declare a construction permit invalid. This is due to the fact that as part of the implementation of the decision on the construction permit, a building is created, which cannot be easily removed despite the lack of a construction permit.
Position of the Constitutional Tribunal
In turn, the Constitutional Tribunal in its judgment of 12 May2015. (Case No. P 46/13) stated that Article 156 § 2 of the CAP is inconsistent with Article 2 of the Constitution of the Republic of Poland to the extent to which it is permissible to declare invalid a decision issued in gross violation of the law when there has been: (i) a considerable lapse of time and (ii) the decision was the basis for acquiring a right.
The judgment was rendered in a case where an attempt was made to annul a decision issued in 1948. The entity had been using the decision for nearly 70 years. This raised the issue of whether justice could be sought after several decades. The Constitutional Tribunal stated that the Constitution imposes an obligation to stabilize social relations. Moreover, it is difficult to assess whether there has been a gross violation of the law after several decades have passed. Such an assessment must be made at the time of the authority’s action and not from a contemporary perspective.
In the explanatory statement to a bill in question, it was explicitly stated that the amendment is aimed at adapting the legal system to the Constitutional Tribunal’s judgment.
Assessment of the changes
In fact, it introduces key changes to invalidity proceedings, however, these changes result from objective circumstances.
It should be noted that the amendment itself only solves the problem of the scope of application of the Constitutional Tribunal’s judgment. The judgment is binding for public administration bodies and administrative courts in the process of applying the law. However, it does not indicate what time lapse from the moment of delivery of the decision excludes the possibility of declaring the decision invalid. The Supreme Administrative Court in one of its judgments assumed that the period should be no less than 30 years. The court disagreed with the refusal to hold a decision issued 14 years earlier invalid. Consequently, the time limitation on the possibility of declaring an administrative decision invalid has been in force in the legal system for over 6 years.
Regardless of whether the discussed amendment to the CAP is enacted, at present it is not possible to annul an administrative decision indefinitely. The amendment will have effect on proceedings that have already been initiated. However, against the background of the Constitutional Tribunal’s judgment, an administrative authority and an administrative court in such proceedings should refuse to hold a decision invalid anyway.
Consideration is given to the possibility of extending the period for ascertaining the invalidity of decisions issued in gross violation of the law from 10 to 30 years. This would be in line with the view of the above judgment. The court rightly assumed that gross violation of law is the most serious premise. For this reason, the period excluding the possibility of annulment should be longer than in the case of other grounds (e.g. violation of the rules of jurisdiction).
Dr Adrian Sypnicki, Senior Associate, attorney-at-law
