(by Dr. Karol Świtaj)
The Polish Act on Electronic Delivery of 18 November 2020 (“Act”) [1] is deemed a new step within the so -called “digital revolution” in providing services and notification between central and local authorities and between those authorities and citizens. Although the Polish legislator has not mentioned this aspect within the grounds for the aforementioned Bill when referring to the Tallinn Declaration on eGovernment of 6 October 2017 and the necessity to implement the EU regulations[2], the need of introducing this Act into the Polish legal system was accelerated by the current situation. The outbreak of the Covid–19 pandemic and the resulting lockdowns within social, business and public spheres forced the development of a new perspective on each of the spheres. This led to identifying different ways to keep those spheres alive and operating despite restrictions. As a result, a major part of business activities, services and social contacts moved to digital platforms and the Internet. In the time of intense fighting against the pandemic, this digital channel has become the main way of providing services and working also in the public sector. The lessons learned from lockdowns have resulted in the passage of a legislative initiative efficiently implementing those lessons. It was necessary to develop a comprehensive approach to digitalization of public services in a broad sense and there is no doubt that these services should currently be accessible especially in digital form.
The Act – as the name suggests- regulates the matter of electronic delivery (so – called: e-delivery). Although the term has not been defined by the legislator and there is also no definition of this term within the EU law, it can be assumed that the term refers to delivery mainly via electronic means of communications, i.e. such technical solutions as IT devices and associated software enabling remote communication through data transmission between IT systems, in particular electronic mail. [3].
It is to be emphasized that the Act regulates the delivery of correspondence using the public service of electronic delivery, public hybrid delivery and certified service of registered electronic delivery, which assumes a diversity of delivery methods depending on preferences or possibilities of collecting documents by recipients.
In the light of the new regulation, the default way of correspondence exchange, including delivery, will be the public service of registered electronic delivery. Such exchange will involve the sender to confirm the sending and the recipient to acknowledge the delivery of the correspondence. This method of delivery will be supplemented by public hybrid service which ensures the sending of correspondence in default electronic form also to persons who are digitally excluded or to those who are for different reasons still not prepared for exchanging correspondence via electronic means.
Moving to practical ground, it s[4]hould also be noted that delivery in legal terms encompasses activities of significant legal importance as these activities of factual nature result in certain legal consequences. For instance, an order for payment issued within legal default proceedings ceases to exist upon an objection to this order has been delivered to the competent court (see Article 505 § 2 of the Polish Code of Civil Procedure). Hence, the analyzed provisions of the Act will be of crucial importance in this respect. The correctness and punctuality of delivery of a letter by electronic means within administrative and civil proceedings will also have impact not only on the rights of persons to these proceedings but also on efficiency thereof. There is no doubt that the delivery of correspondence by electronic means, even when it occurs in the hybrid form where a digital letter is “transformed” into paper form (by means of printing) and finally supplied to the recipient, shall significantly speed up the action of central and local governmental bodies and courts and their decision making process without the need for waiting for a time-consuming traditional delivery and for the acknowledgement of its receipt. Deliveries by electronic means introduced by the new Act reduce the delivery time to the minimum necessary to ensure fast, efficient and certain delivery of a letter.
In addition, the Act will also facilitate the exchange of correspondence between administrative bodies/courts and citizens, among the administrative bodies and courts and among the citizens who themselves are parties to court proceedings. As a result, the new law fits well within the trend of ongoing changes in the field of electronic services and meets social and business expectations in this regard.
Central government administration and units funded from central budget, Social Insurance Institution, Agricultural Social Insurance Fund and funds managed by these units as well as National Health Fund have had to apply the regulations of the Act since 5 July 2021. As of 1 January 2024, the Act will apply to local government units and their associations, metropolitan units and entities funded from local budgets. As of 1 October 2029 the Act will apply to courts, law enforcement agencies including public prosecutors and bailiffs as well as penitentiary services.
At the moment it is rather difficult to judge as to how the process of implementation of electronic forms of delivery will be carried out in the future, in particular whether the Act will meet all expectations vested therein. It may be observed, however, that the Act has responded to the challenges of the present where transacting business is becoming more and more digitized. Even if the process of electronic delivery is applied with delays or difficulties, its implementation is unavoidable. Thus, the preparation for handling deliveries according to the Act especially in the field of business, by creating a certain IT environment, will be a key factor to success in the process implementation and the provisions of the Act on Electronic Delivery will be of significant importance for economic relations.
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[1] Official Journal of 2020, item 2320 as amended
[2] With reference to DIRECTIVE (EU) 2015/1535 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (codification) and to REGULATION (EU) No 910/2014 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.
[3] See Article 5.2 of the Act
[4] See M. Wilbrandt-Gotowicz [in:] Czaplicki, A. Gryszczyńska, M. Świerszczyński, K. Świtała, K. Wojsk, M. Wilbrandt-Gotowicz. Electronic Delivery Act. Commentary. LEX/el. 2021, Commentary to Artcle 3.
