European administrative cooperation
Poland’s amended Administrative Procedure Code includes a new chapter governing the conduct of European administrative cooperation.
The principle of sincere cooperation, mutual respect and assistance in pursuing the objectives of the EU is enshrined in Art. 4(3) of the Treaty on European Union. The necessity to cooperate in administrative procedures across various fields, as set forth in provisions of secondary EU law, has led Poland to include mechanisms for cross-border cooperation in the Administrative Procedure Code.
Chapter VIIIa of the Administrative Procedure Code, on European administrative cooperation (Art. 260a–260g), introduced by the Act of 7 April 2017 Amending the Administrative Procedure Code and Certain Other Acts, is designed to provide an ordered set of rules for cooperation between national administrative authorities and administrative authorities of other EU member states, and with EU institutions.
As indicated in the justification for the bill, the new provisions establish a set of norms similar to those governing international legal assistance in civil and criminal proceedings.
European administrative cooperation is to be realised in situations set forth in EU regulations as well as with respect to activities conducted within specific proceedings. In this context, the newly introduced rules are of a subsidiary and framework nature.
Thus administrative assistance is to be provided in instances where EU law so provides, and on the basis of EU regulations. It will include providing information about factual and legal circumstances and conducting procedural activities as part of legal assistance. As indicated in the justification by the proponents of the bill, assistance will mainly consist of forwarding data concerning the parties or other persons affected by administrative proceedings.
Consequently, it is necessary to ensure that persons whose data is shared can actively participate in the procedure, and first and foremost that they be informed of the actions taken as part of the European administrative cooperation.
These actions will be taken both at the Polish authorities’ own initiative, and at the request of the competent authorities elsewhere in the EU. The procedure is supposed to be deformalised, mainly using electronic communications, although any other form of communication is also allowed. Costs are to be settled on the basis of EU law, or in the absence of relevant regulations each authority will bear its own costs.
The competence to provide administrative assistance is to be determined pursuant to the Administrative Procedure Code unless otherwise provided by EU law.
An application for administrative assistance should be filed with the Polish authority in one of the EU’s official languages and contain a justification. After notification of any formal defects in the application, the defects must be cured within 14 days or the application will be returned to the sender.
The application should be considered within the period specified by EU law, or if no period is provided, then without undue delay.
If a Polish authority seeks administrative assistance, it must provide a justification for the application and prepare the application in the language determined by the interested parties (in the case of cooperation between countries) or in one of the EU’s official languages (if the application is directed to an EU institution).
Application of the Polish Administrative Procedure Code will be excluded if there is a conflict with provisions of EU law governing cooperation within the given administrative area. Similarly, the cooperation provisions of the code will be excluded if the given issue is addressed differently in other specific regulations.
The new regulations apply respectively to authorities from EFTA Member States that are parties to the EEA (Iceland, Liechtenstein, Norway) and to Switzerland.
Some of the solutions included in the Polish provisions on European administrative cooperation are inspired by the ReNEUAL Model Rules on EU Administrative Procedure adopted by the Research Network on EU Administrative Law.
Agnieszka Kraińska, EU Law practice, Wardyński & Partners
