COVID-19 and failure to act by public bodies
The solutions provided for in the Anti-Crisis Shield are intended to activate extraordinary instruments supporting businesses during the pandemic. Can changes in the running of time limits provided for by law, including proceedings before public administrative bodies and administrative courts, be regarded as such a solution?
The changes introduced by the Anti-Crisis Shield, i.e. the amendment to the Anti-Crisis Act of 2 March 2020, affect public administrative bodies as well as parties and other participants in proceedings before those bodies.
During the period of the state of epidemiological threat and the state of epidemic declared due to COVID-19, the running of time limits for administrative and judicial proceedings does not start and, if started, is suspended for that period.
Examples of such deadlines are those set out in the Administrative Procedure Code or the Administrative Court Procedure Law:
1. Applicable to parties to proceedings—
- 14 days to lodge an appeal
- 7 days to lodge a complaint
- 30 days to file suit with the administrative court
2. Applicable to public administrative bodies—
- Time limit for resolving a matter requiring an investigation—one month, or in a particularly complicated case, two months from initiation of the proceeding, and in appellate proceedings, one month from receipt of the appeal.
Another example is the deadlines relating to the development process defined in the Construction Law, e.g.:
1. Applicable to the party (investor)—
- Duty imposed by the construction supervision authority in recovery proceedings to present an inventory of performed construction works or relevant technical assessments or expert appraisals within 30 days from service of an order to suspend construction works
2. Applicable to public administrative bodies—
- Time limits for filing an objection, e.g. to commencement of construction works on the basis of a notification, to occupancy of a facility or change in use of a facility
- 14 days for agreeing, consenting or issuing an opinion with regard to a building permit
- 65 days for issuing a building permit.
Suspended deadlines, undecided cases
Therefore, the application of provisions governing time limits to be observed by public bodies, parties and other participants in the proceedings has been suspended. At the same time, parties have been deprived of the possibility of asserting their rights for failure to act or for overlong proceedings and the right to have their case heard without undue delay.
These regulations may halt all activities in proceedings conducted by administrative courts and public bodies. Letters, complaints, applications, etc, submitted by parties or other participants in proceedings will not be considered, and public administrative bodies will not suffer any consequences as a result.
Parties have been deprived of their existing rights, including those arising under the general rules in the Administrative Procedure Code, in particular the principle of speed and simplicity of proceedings.
Matters relating to preventing, counteracting and combating COVID-19 and crises caused by it are an exception. The Anti-Crisis Act uses this term to cover all activities related to control of infection, prevention of spreading, prophylaxis, and combating the effects of the disease, including socio-economic effects.
But where possible, should not combating the socio-economic impact of the disease be based on support by public administrative bodies for economic activity?
The adopted solution will ensure that after the end of the state of epidemiological threat or epidemic declared due to COVID-19, public administrative bodies will have such a backlog of matters to deal with that the effects of coronavirus will be visible long after the pandemic is over. Therefore, it is difficult to regard the act as a protective shield for businesses in this respect.
But there is a way out, depending on the goodwill of the public body
These regulations provide that actions taken during the period when time limits do not begin to run or are suspended are nonetheless effective.
A party or other participant in proceedings is obliged, if ordered by an authority, court or entity conducting proceedings or an inspection, as the case may be, to perform a specified action within the specified time, if failure to perform the action could pose a threat to human or animal life or health, cause serious harm to the public interest, or threaten irreparable material harm. This also applies to public administrative bodies asked to take a position on a matter under investigation in an administrative proceeding.
The following may be issued at the authority’s own initiative accordingly:
- Decisions fully satisfying the demand of a party or other participant in proceedings
- A statement on lack of grounds for filing an appeal.
Also, official positions may be expressed or individual interpretations issued.
Examples of decisions fully satisfying the demand of a party or participant in proceedings include:
- Decision transferring a land-use decision
- Decision transferring a building permit
- Decision issuing an occupancy permit.
In specific situations, other decisions may also meet this requirement. In particular, this applies to a building permit, where the facility’s area of impact is limited to real estate whose owner (or perpetual usufructuary) is the investor.
A party has the right to appeal against an administrative decision. The decision may not be enforced before the deadline for filing an appeal. However, if requested by all parties, it may be enforced before that period expires.
Therefore, there do not appear to be any obstacles to matters being resolved in accordance with the parties’ demand.
However, in this respect, issuance of a decision or expression of a position would occur at the initiative of the public administrative body. Although requested by a party, administrative proceedings are undertaken or continued by the will of the public body.
The practice will show whether the solution indicated by the parliament is applied, as well as whether after the state of epidemiological threat or state of epidemic ends, failure to take possible actions at public administrative bodies’ own initiative will constitute grounds for finding inaction or tardiness by those bodies.
Iwona Kasperek, Construction practice, Wardyński & Partners
