Restrictions resulting from the state of epidemic, as well as extensive changes in law coming into force overnight, require a fresh look at many issues, including such mundane issues as when administrative decisions become final.
For example, let’s put ourselves in the shoes of an investor who in early March, at the beginning of the epidemic, obtained a building permit, receiving the requested decision before the Anti-Crisis Act of 2 March 2020 entered into force. However, the investor is not the only party to the proceedings, and before it can act in reliance on the decision, the decision must become legally final. Alternatively, the authority would have to order that the decision is immediately enforceable, but that is unlikely with construction permits. What will happen next in this case?
A need for finality
In principle, a decision becomes final when it has been duly served on the parties, and in addition:
- No appeal is filed by the deadline for appealing
- Other parties have waived their right to appeal
- An appeal was filed after the deadline
- Or, if a timely appeal was filed, the appellate body has issued its ruling on the appeal.
Let’s assume optimistically that none of the other parties are going to appeal, as they do not intend to block the project. This is quite common, especially if we are dealing with a conscientious investor, who has sited the development appropriately and resolved any issues with the neighbours. So, in the first place, it remains to serve the decision properly.
How to serve decisions during an epidemic
According to Art. 39 the Administrative Procedure Code, the standard method of service is by post. Other options are unlikely to be considered, given the current limitations of operations of administrative bodies and widespread remote work.
Once the investor learns that the expected decision has been issued, the investor may try to arrange to collect the decision in person at the authority’s offices, as it is interested in obtaining service of the decision. However, the other parties to the case may not have such urgency, so the decision must somehow be served on them.
Apart from ordinary postal delivery, electronic delivery could be considered in this respect, but it requires an application of a party or a party’s consent to such delivery by the authority (Art. 391 §1(2)–(3) of the Administrative Procedure Code). During an epidemic, it is worth considering this solution, for the party’s own convenience and safety.
Waiver of appeal
If the decision has already been served on the other parties and they have no interest in challenging it, there are also possibilities to accelerate the decision’s becoming final.
Now, Art. 127a of the Administrative Procedure Code, allowing for waiver of appeal (this provision entered into force on 1 June 2017), is gaining additional significance.
The possibility to waive appeal does not exclude the current suspension of time limits in many administrative cases. Pursuant to Art. 15zzs(1)(6) of the Anti-Crisis Act, during the period of epidemiological threat or state of epidemic declared due to COVID-19, procedural and judicial time limits in administrative proceedings shall not begin to run, and if begun shall be suspended for that period.
But at the same time, Art. 15zzs(7) provides that acts performed during that period are effective. This means it is possible to effectively waive an appeal, and thus speed up the time when the decision becomes final.
From when can an appeal be waived?
Assuming that it is correct to interpret the current deadline for appeal in many cases as not running, an interesting issue arises as to when a party can decide to waive an appeal.
Art. 127a §1 the Administrative Procedure Code states that a party may waive the right to file an appeal “during the time limit for filing an appeal.” Art. 129 §2 states that an appeal shall be filed within 14 days of service of the decision on the party, while Art. 57 §1 states that if the beginning of a period defined in days is a certain event, the day on which that event occurs shall not be taken into account in calculating the period.
Reading these provisions together raises a question whether, with the utmost caution, a party can submit a declaration waiving an appeal at the earliest on the day following the service of the decision. In our opinion, such a cautious interpretation is unjustified, as the deadlines for seeking appellate review are established in the interest of the party (so the party may wish to undertake specific acts more quickly) and, moreover, may be contrary to the interest of the party.
Upon service of the decision on the party, the party acquires the right to challenge the decision or to declare that it is waiving an appeal. So this right arises at the time of service of the decision, not earlier or later. This right must be exercised within the deadline prescribed by law. Art. 57 §1 of the Administrative Procedure Code specifies the method of calculating the time limit so that there is no doubt when the time limit expires, thus implementing the principle of guaranteeing the party’s rights, because the party must be certain when it can exercise its rights. An overly cautious interpretation would lead to the indefensible view that a party that is particularly alert, or pressed by circumstances (e.g. an urgent trip abroad), and files an appeal or declaration of waiver of the right to appeal on the same day as service of the decision would be accused of acting prematurely.
This is reflected in existing judicial decisions, such as the judgment of the Province Administrative Court in Warsaw of 6 February 2013, case no. VIII SA/Wa 795/12, where the court held that “the right of a party to file an appellate instrument starts upon service of the decision and ends upon expiration of the time limit specified in the procedural rules.” Consequently, “a party does not have to wait until the day after receiving the decision to file an appeal.” There is no reason not to apply this view also to an act such as waiver of an appeal.
The example discussed above is only one of many that can currently present problems and difficulties greater than in non-epidemic times. In proceedings where only the applicant is a party, it is worth asking the authority for electronic service in order to speed up receipt of the decision in the case. The current exceptional situation will continue for some time. This makes it all the more important to look for solutions that will allow all commercial operations to proceed as normally as possible.
Dr Maciej Kiełbowski, attorney-at-law, Administrative practice, Dispute Resolution & Arbitration practice, Wardyński & Partners
Tomasz Zasacki, attorney-at-law, Reprivatisation practice, Private Client practice, Wardyński & Partners