The restrictions due to the state of epidemic are making life harder for all of us. But in pending administrative proceedings, there is no basis for holding back actions and resolution of matters, particularly as this could lead to a backlog. The lack of penalties for inaction or delay should not be an excuse for administrative authorities.
It is no secret that administrative proceedings in Poland often last months or even years. This was true before the COVID-19 epidemic and will no doubt be true after it is over. Nonetheless, the epidemic should not be allowed to create further delays in resolving administrative matters wherever possible.
Time limits under the Anti-Crisis Act
Art. 15zzs(1) of the Anti-Crisis Act addresses issues of non-commencement or suspension of time limits in various matters, including administrative cases. As stated in Art. 15zzs(1) (2) and (6), “During the period of a state of epidemiological threat or a state of epidemic declared due to COVID, the running of procedural and judicial time limits in … execution proceedings [and] administrative proceedings … shall not commence, and those commenced shall be suspended for that period.”
This provision refers to procedural time limits, which should be understood to mean primarily time limits set for the parties to proceedings to take certain actions. It should therefore not be directly applied to time limits for consideration of administrative matters provided for by the Administrative Procedure Code or separate regulations.
Exception for cases involving tacit approval
This conclusion, and the drafters’ intention that administrative authorities continue to operate as normally as possible, flows from various further provisions of the act. For example, Art. 15zzy(1) provides the possibility for a public administrative body which cannot perform public tasks due to the epidemic to transfer the tasks to another authority or an entity performing public tasks, for a specific time.
And where time limits for resolving matters are to be suspended, a special provision has also been introduced (for example Art. 31za of the Anti-Crisis Act for proceedings before the Financial Supervision Authority).
An exception from this rule is also provided by Art. 15zzs(8) of the Anti-Crisis Act, under which time limits:
- For tacit resolution of a matter
- In other matters where failure by an authority to object, or to issue a decision, order or other resolution, entitles a party or other participants in the proceeding to take an action or affects the scope of rights and obligations of a party or other participant, or
- For an authority to state a position or issue an individual interpretation (other than an individual interpretation referred to in the Tax Ordinance of 29 August 1997)
do not begin to run, or if they have begun are suspended for the period of the state of epidemiological threat or state of epidemic.
But there are relatively few such provisions, and thus it cannot be inferred from this provision that there is an intention to halt the consideration of administrative matters of all types—to the contrary, as exceptions should be interpreted narrowly.
Lack of penalties for inaction or delay should not be a defence
To a large degree, administrative proceedings are conducted in writing, at the authority’s desk, unlike judicial proceedings, which are mostly conducted at public hearings. In many administrative proceedings, the parties essentially have no personal contact at all with the authority or public official. An application is filed by post or with the authority’s reception desk, any additional correspondence during the proceeding is exchanged by post, and the decision concluding the proceeding is also delivered by post. On top of this, there is an extensive possibility to use electronic means, particularly a trusted profile in the ePUAP system. Thus there is no hindrance to continuing and resolving administrative matters.
This is also indicated by Art. 15zzs(9) of the Anti-Crisis Act, which expressly permits issuance during this period of decisions complying with the parties’ request. It states that during the period of epidemiological threat or epidemic, “the authority or entity may at its own initiative, as relevant, issue a decision wholly upholding the demand of the party or other participant in the proceeding or a certification of the absence of grounds for objection, express a position, or issue an individual interpretation.”
This is a provision that various authorities should primarily bear in mind, to the benefit of the parties but also for the sake of maintaining the flow of administrative matters and decisions.
The provision set forth in Art. 15zzs(11) of the Anti-Crisis Act under which an administrative authority may not be punished for inaction or delay in proceedings during the epidemic should thus be treated as a last resort. After all, many matters can be resolved by administrative authorities even while staff are working remotely, an option many state offices are currently following—particularly as during the epidemic officials need not devote time to other activities such as providing case files to the parties.
The epidemic isn’t the only problem
Many issues remain pressing despite the ongoing epidemic. Administrative decisions are needed to pursue business activity, and if business operations are restricted such decisions are needed to minimise businesses’ losses. For example, in the area of construction oversight and illegal construction, leaving matters unresolved can pose a threat of a construction disaster, and thus endanger human life and health. Matters involving social benefits and the like are equally pressing, as the beneficiaries’ need for such benefits may be more urgent now than it was before.
The current situation obviously gives rise to limitations in the operation of the public administration and its clients. This makes it particularly invaluable to take every effort to enable operations to continue as normally as possible. The parties’ interest in obtaining certain decisions permitting them to take further actions did not cease overnight when the epidemic was declared. Indeed, in the current situation, the parties’ needs have often become even more urgent.
Dr Maciej Kiełbowski, adwokat, Administrative practice, Dispute Resolution & Arbitration practice, Wardyński & Partners