|The extraordinary complaint is a novelty among extraordinary means of appeal, which appeared in the Polish legal order at the end of 2017. This institution owes its extraordinary character primarily to the strictly specified types of judgments, that may be appealed against with an extraordinary complaint, and a closed list of entities that are entitled to submit such a complaint.|
The subject of the allegation by means of extraordinary complaint
Polish legislator in art. 89 §1 of the Act on the Supreme Court indicated that an extraordinary complaint may be filed against a final judgment of a common court or a military court ending proceedings in a case where – it is necessary to ensure compliance with the principle of a democratic legal state realizing the principles of social justice and were – the final judgment:
1. infringes the principles or freedoms and rights of a human being and citizen set out in the Constitution, or
2. grossly violates the law through its misinterpretation or misapplication, or
3. there is a clear contradiction between significant findings of the court and the content of evidence collected in the case,
and it is not possible to set aside or amend it under other extraordinary means of appeal.
In view of the above, it is essential to point out that the discussed institution of an extraordinary complaint may be applied only in relation to a specific type of judgment – final, ending the proceedings in cases issued by a military court or a common court of law. As a consequence, the institution of an extraordinary complaint cannot be applied to non-final judgments, which do not end the proceedings in a case, i.e. which may be reviewed by way of an appeal. The extraordinary complaint is also not applicable to any judgments of administrative courts or decisions issued by the prosecutor, even if these judgments end the proceedings in a given case.
Bearing in mind the above-mentioned narrow scope of judgments that may be reviewed by way of an extraordinary complaint, it is necessary to consider the relation of the extraordinary complaint to cases, which were subject to the decision and verdict of the Supreme Court in cassation proceeding. First of all, a judgment of the Supreme Court issued as a result of the cassation proceedings cannot be qualified as a “final decision of a common court or military court, ending the proceedings in the case”. The Supreme Court, in accordance with the provisions of Article 175 in conjunction with Article 183 of the Polish Constitution, is not a common court, nor is it a military court. The Supreme Court was established to exercise supervision over the designated sections of the judiciary and to carry out other activities specified in the regulations of the Polish Constitution and separate acts. Consequently, it is not possible to challenge any decision of the Supreme Court with an extraordinary complaint.
The above – despite the seemingly rigorous approach of the legislator to the subject of the complaint – does not mean, however, that it is not possible to bring an extraordinary complaint in a case, which was the subject of examination before the Supreme Court in cassation proceedings. It should be kept in mind that the trial, which led to the initiation and settlement of the cassation proceedings before the Supreme Court, consisted of a number of court decisions, including in particular a final judgment ending the proceedings, against which a cassation appeal was brought to the Supreme Court and the cassation proceedings were initiated. With this in mind, and in accordance with the specific provisions of the Supreme Court Act, it should be pointed out that in a case that was heard before the Supreme Court during the cassation proceedings, it is possible to file an extraordinary complaint. However, it should not be filed against the decision of the Supreme Court made as a result of the cassation proceedings, but against a final decision of a common court or military court that concludes the proceedings in the case.
To sum up, the possibility to challenge a final judgment of a common court or military court is not excluded, if an appeal in cassation has been filed against such decisions, the cassation proceedings have been conducted, and a judgment has been issued by the Supreme Court.
The remarks presented in the above paragraphs find an appropriate translation into a situation in which the Supreme Court accepted a cassation appeal against a final judgment of a common court or military court and at the same time issued a substantive judgment, deciding on the essence of the case. Then, such a judgment remains a judgment issued by the Supreme Court, so it is not possible to bring an extraordinary complaint against such a decision. A special situation occurs also when the Supreme Court accepts the cassation complaint and decides to refer the case for reconsideration. Then, as a result of the referral, a common or military court will rule again on a case that it has already decided. Such “subsequent” final and conclusive judgment of a common or military court following a transfer by the Supreme Court may be appealed by way of an extraordinary complaint. On the other hand, a judgment of the Supreme Court transferring a case for retrial may not be appealed by way of an extraordinary complaint.
It is also important to point out that the extraordinary complaint has a subsidiary character, i.e. it may not be raised in a situation where in a given case it is possible to overturn or change a decision as a result of raising other extraordinary means of appeal. Thus, for example, the possibility of bringing a cassation complaint in a given case will exclude the possibility of bringing an extraordinary complaint. It should be noted that an extraordinary complaint may be introduced in a situation when, although it was possible to raise other extraordinary remedies, negligence of a party in the procedural aspect prevented it from being submitted.
Entities entitled to bring a cassation appeal
The legislator has established the following entities, which are exclusively entitled to file an extraordinary complaint:
I. General jurisdiction – as to all cases in which an extraordinary complaint may be filed – has been assigned to:
II. Prosecutor General,
III. the Commissioner for Civil Rights Protection.
I. Specific competence – limited to the scope of competence and scope of cases for which the following authorities are appointed to resolve, and which are specified in the acts establishing the indicated authorities – has been granted to:
II. Financial Ombudsman, Ombudsman for Small and Medium Enterprises,
III.The Chairman of the Financial Supervision Commission,
IV. The President of the Office of Competition and Consumer Protection,
V. The President of the General Prosecutor’s Office of the Republic of Poland,
VI. The Children’s Rights Ombudsman,
VII. The Patient’s Rights Ombudsman.
The above-mentioned authorities may launch an extraordinary complaint by taking their own initiative, or by acting on the basis of a request submitted by the party/entity – in whose case an extraordinary complaint is to be made. Such request should present as fully as possible the allegations to be raised in the given case, together with their justification, supporting the legitimacy of the authority in question to bring an extraordinary complaint. A correctly completed request increases the chances that the competent authority will accept the request, and consequently, that an extraordinary complaint will be lodged in the given case.
The above-mentioned remarks allow us to explicitly state that the extraordinary complaint, being a novelty in the area of extraordinary remedies and challenging final court decisions, has been limited in terms of the right to file it to a closed catalog of entities and it is not directly applicable in relation to decisions of the Supreme Court. The decisions of the Supreme Court made as a result of cassation proceedings are not subject to appeal by means of an extraordinary complaint, regardless of their type. Such decisions of the Supreme Court, however, do not eliminate the possibility of challenging the final decisions of common courts or military courts ending proceedings in a given case, providing the case was examined in the course of cassation proceedings. In particular, it is possible to appeal against final decisions of common courts or military courts ending proceedings in a given case, which were made as a result of a decision of the Supreme Court issued in the course of cassation proceedings and referring the case for re-examination to the indicated courts. The decision which, in accordance with the foregoing, may be challenged by way of an extraordinary complaint, must be characterized by a specific defect that needs to be demonstrated and must meet the conditions as indicated at the outset and set out in Article 89 §1 of the Supreme Court Act.
 Article 89 §3 in connection with Article 9 §2 in connection with Article 94 §2 of the Supreme Court Act.
 against which, in the situation under consideration, a cassation complaint has been submitted to the Supreme Court in cassation proceedings.
In 1959, the European Court of Human Rights was established in Strasbourg under the Convention for the Protection of Human Rights and Fundamental Freedoms. Since its establishment, the Court has found more than 24,000 violations of the fundamental rights and freedoms which are guaranteed to every person under the Convention. What, however, should be done in a situation where the addressees of decisions made by state authorities, that violate the law, are legal persons acting
in legal and economic turnover in the form of commercial law companies?
The basis for lodging an individual complaint to the ECHR is Article 34 of the aforementioned Convention. This provision states that any person, non-governmental organization, or group of individuals who believes that their rights or freedoms have been violated by the administrative organs of a state, that is a signatory to the Convention, may bring a complaint.The first criterion in that provision, therefore, defines the catalog of entities capable of bringing such a complaint. The second criterion is that the applicant believes that the state authorities have infringed his or her rights or freedoms guaranteed to him by the Convention. The second criterion is that the applicant believes that the state authorities have infringed fundamental rights or freedoms guaranteed to him by the Convention.
The catalog of entities indicates that any person, non-governmental organization, or group of individuals has the right to lodge a complaint. The use of the term “any person” in the Polish translation does not unequivocally determine whether it should be understood to mean only natural persons, or natural persons together with legal persons. In this context, one may also point to the discrepancy between the French and English translations of the Convention. The French translation “toutte persone physique” clearly indicates a natural person, whereas
the English translation “any person”, similarly to the Polish one, leaves the field of interpretation open.
A direct answer concerning the rules of interpretation may be found in Article 1 of Protocol No. 1 to the Convention. This provision extends the catalog of rights protected by the Convention with the right to property and explicitly indicates that every natural and legal person has the right to respect his property. In the light of the above, the right of legal persons to bring a complaint before the Court can be regarded as indisputable, which has also been reflected in the Court’s case law.
Furthermore, due to the discrepancies in the legislation of the States signatory to the Convention, the catalog of entities indicated in Article 34 of the Convention also includes the term “non-governmental organization”, which is not defined under Polish law. The objective term, using a negative criterion, directly indicates that the addressee in question is an organization that does not constitute an element of state authority. Therefore, on the basis of this criterion, it is also possible to derive the legitimacy of legal persons, which are not public administration entities, to make an individual complaint to the ECtHR.
However, the status of a legal entity does not in itself determine the possibility of filing a complaint to the ECtHR. The second criterion adopted in the text of Article 34 of the Convention clearly states the necessity of violation by public authorities of the rights or freedoms of these individuals. The Convention and its subsequent protocols establish a broad catalog of protected rights and freedoms guaranteeing fundamental issues in the 21st century such as the right to life, the right to a fair trial and the right to protection of property. Infringement of any of the established rights or freedoms constitutes grounds for a complaint. It is also obvious that a legal person can only challenge a violation of the right to which it may be an addressee therefore a joint-stock company will not be able to accuse state authorities of a violation of the prohibition of torture, but only of those rights that actually affect it, i.e., for example, the right to a fair trial or the aforementioned right to respect for property.
Summing up the discussion on the legitimacy of legal persons, including commercial law companies, to bring an individual complaint to the European Court of Human Rights, it should be indicated that these entities are entitled to bring such complaints in situations where their rights or freedoms have been violated. The aim of the Convention for the Protection of Human Rights and Fundamental Freedoms is to guarantee respect for the rights of every person, whether natural or legal. Failure to guarantee any of those persons the right to challenge the actions of state authorities by means of an individual complaint would therefore be contrary to the very nature of the Convention and the reasons for which the Court was established.
Trainee Attorney-at-Law Aleksander Husar
In the course of changes in legislation aimed at revolutionizing the conduct of business in Poland, alongside the Act from the 6th of March 2018.
– In entrepreneurs’ Law, the legislator has established a new legal institution – succession management of an enterprise in inheritance. The details of this form of enterprise management are described in the Act from the 5th of July 2018 on succession management of a natural person’s enterprise.
Who, when, and how may appoint a succession manager?
The appointment of a succession manager is possible in the situation of the death of a natural person conducting business activity entered in the Central Register of Business Activity and Information. The task of the succession manager is primarily to ensure the continuity of the business after the owner’s death so that his sudden death does not cause negative financial effects for the new owners.
A succession manager may be appointed in two ways – he may be appointed while the entrepreneur is still alive (in which case he takes over the management as a rule at the moment of the entrepreneur’s death) or appointed after the entrepreneur’s death (in which case he takes over the management at the moment of entry in the Central Register of Economic Activity (CEIDG).
In order to validly appoint a successor manager during the entrepreneur’s life, it is necessary to keep a written form – under pain of nullity. What is important, the succession manager himself must also consent to the appointment in writing.
If the succession manager was not appointed upon the entrepreneur’s death, the succession manager may be appointed after his/her death by his/her spouse (if he/she is entitled to a share in the business in the estate), statutory or testamentary heir of the entrepreneur who accepted the inheritance or a legatee who accepted a legacy of inheritance, if he/she is entitled to a share in the business inheritance. After the decision on the confirmation of inheritance acquisition becomes valid, the succession manager may only be appointed by the new owner of the enterprise. What is important is that the appointment of a succession manager after the death of the entrepreneur requires a form of a notarial deed and must be made within 2 months – after that time the right to appoint a successor manager expires.
The activity of the succession manager
A succession manager performs his role acting in his own name, but on behalf of the owners of the inherited company. This means that the owners of the business under succession are responsible for the liabilities incurred by the succession manager and they are entitled to the profits he earns.
The rights and obligations of a successor manager in the area of civil law relations are not significantly different from the rights and obligations of a deceased entrepreneur – the manager may be sued and he/ she is entitled to sue. Moreover, statements and documents regarding the business may be delivered to him/her. He/she also takes over the employer’s obligations towards the employees of the business under inheritance (provided that he/she is appointed within 30 days of the employer’s death). The act also allows for retaining, for a certain period of time, the right to use some of the administrative and legal decisions issued in favor of the entrepreneur (e.g. concessions). What is important, in the case of appointing an estate administrator and a succession manager at the same time, the inherited business is not subject to the estate administrator – the business therefore acts, so to speak, independently from the rest of the remaining inheritance mass.
Succession management allows to maintain continuity in the functioning of an enterprise after the death of its owner. Thanks to this institution, contracts concluded by the entrepreneur do not expire, but are continued – to the benefit of both contractors and heirs of the deceased. By means of this institution, the legislator has given the heirs a chance to put the deceased’s affairs in order and take control over the enterprise in an organized and planned manner, without the need to introduce sudden changes in the structure and the necessity to build relations with contractors from scratch. It is undoubtedly an institution that secures the interests of those entrepreneurs who as sole proprietors have created a large and prosperous enterprise with a well-developed structure and a network of regular business partners.
A modern Law Firm offers its Clients support not only in the area of litigation, but also, or rather first of all, in the area of broadly understood business comfort. This includes: assistance in setting up a company, drafting clear and reliable contracts with contractors, supervision of their execution, ongoing legal, investment and tax advice, prevention of disputes, and if they do arise, resolving them efficiently, cheaply and effectively, preferably amicably.
The use of amicable methods of dispute resolution, so called ADR (Alternative Dispute Resolution) is common in common law countries (legal order characteristic for Anglo-Saxon countries) and in most Western European countries. The “queen” of ADR is mediation, which in Poland, on the basis of provisions of the Code of Civil Procedure, may be used in order to resolve civil disputes (including economic ones) since 2006. Mediation proceedings are initiated both on the basis of an agreement of the parties on mediation
(the so-called pre-court mediation) as well as on the basis of an order of the court in cases already pending before the court.
Compared to traditional court proceedings, mediation is much cheaper, quicker, confidential and guarantees full control over the outcome. Its main advantage is that in accordance with Article 18315 § 1, a settlement agreement made before a mediator (both in the course of a trial and before filing a claim), once it has been approved by a court, has the force of a court settlement agreement, and if the agreement has been approved by means of an enforcement clause, it also becomes a writ of enforcement. Thus, mediation offers the possibility of achieving an effect equal to a court judgment, but not within 3 years, for example, but within 3 months, and with a guarantee of enforceability.
The legislator has also introduced an economic incentive to encourage mediation in civil cases in the form of provisions concerning the reimbursement of court fees or their appropriate part in the event of a conciliatory settlement of a dispute. In accordance with Article 79 of the Act on Court Fees in Civil Cases, if in the course of court proceedings, after the commencement of the hearing, a settlement agreement is reached before a mediator, the court will refund three-quarters of such fee (in the case of a settlement reached before the first hearing, the refund covers 100%). The legislator clearly “promotes” settlements made in the course of mediation, as in the case of concluding a settlement in the course of court proceedings the reimbursement of the fee is only 50%.
For years CDD law firm has been recommending to its clients amicable methods of dispute resolution in an attempt to minimise their effects (also non-material). In this field we offer you the support of professional attorneys and experienced mediators, who have been cooperating with many entrepreneurs, law firms and courts for over a dozen years.
Magdalena Cetera permanent mediator at the District Court in Wrocław