On September 16, 2021, an amendment to the Code of Administrative Procedure (" KPA ") entered into force, among other things, regarding the determination of the invalidity of administrative decisions. Its purpose is to prevent the elimination of defective decisions from legal circulation through the application of one of the extraordinary administrative procedures – i.e., the determination of the invalidity of an act. The previous regulation contained in the KPA did not contain a time limit for initiating invalidity proceedings and determining the invalidity of a decision based on a gross violation of the law (Article 156 §1 item 2 of the KPA).
Meanwhile, the adopted changes exclude the possibility of :
- determining the invalidity of a decision issued in gross violation of the law, if 10 years have passed since the date of its service or announcement,
- initiation of proceedings for the declaration of invalidity after the expiry of 30 years from the date of its service or announcement.
Importantly, the amended provisions of the Code of Administrative Procedure also apply to proceedings initiated and not concluded with a final decision by 16 September 2021. Additionally, invalidity proceedings initiated after 30 years from the date of service or announcement of the decision and not concluded by the date of entry into force of the amendment will be discontinued by operation of law.
The question therefore arises as to the impact of the amendment on decisions issued under a special act in relation to the Code of Administrative Procedure, such as the Building Law, in particular on decisions granting building permits (" PnB decision ") and decisions granting occupancy permits (" PnU decision ").
Let us remind you that in accordance with the amendment to the Construction Law of 13 February 2020, which entered into force on 19 September 2020, the provisions do not declare invalidity of:
- PnB decision – if 5 years have passed since the date of its delivery or announcement (Article 37b of the Construction Law),
- PnU decision – if 5 years have passed since the date on which the decision became final (Article 59h of the Construction Law).
Both of the cited provisions refer to the application of the Code of Administrative Procedure in the event of the occurrence of the conditions set out in Article 158 § 2 of the Code of Administrative Procedure, i.e. the finding that the contested decision was issued in violation of the law and the indication of the circumstances due to which the decision cannot be declared invalid.
A similar regulation is contained in the Spatial Planning and Development Act, according to which a decision on determining the location of a public purpose investment is not declared invalid if 12 months have passed since the date of its delivery or announcement , and Article 158 § 2 of the Code of Administrative Procedure applies accordingly (Article 53 paragraph 7 of the Spatial Planning and Development Act).
The above means that the introduction of a 10-year period limiting the possibility of declaring an administrative act invalid will not, in principle, apply to PnB decisions and PnU decisions issued after the date of entry into force of the amendment to the Building Law in September 2020. The legislator provided that the above-mentioned decisions cannot be eliminated from legal circulation after the expiry of the 5-year period from the date of their delivery or announcement, so why wait for the expiry of 10 years.
However, due to the ambiguity of the transitional provisions of the act amending the Building Law, the amended provisions of the Code of Administrative Procedure will be applicable to cases where Building permit decisions or Building permit decisions were issued before September 19, 2020. In our opinion, although the provisions of the Building Law are special provisions in relation to the provisions of the Code of Administrative Procedure, in the case of Building permit decisions or Building permit decisions issued before the amendment to the Building Law, Article 156 § 2 of the Code of Administrative Procedure in its wording in force from September 16, 2021 will be able to be indicated as the basis for refuting the application for a declaration of invalidity. In practice, this means that investors do not have to fear the invalidation of Building permit decisions and Building permit decisions on the basis of Article 156 § 1 item 2) of the Code of Administrative Procedure, which were delivered or announced more than 10 years ago.
Furthermore, the effect of the changes introduced regarding the inadmissibility of initiating proceedings after the lapse of 30 years is to exclude the possibility of pursuing compensation through civil law . Previously, in the absence of grounds for declaring a decision invalid, due to irreversible legal consequences, the authority ruled that the decision was issued in violation of the law, which was the basic premise for liability for damages (based on the repealed Article 160 of the Code of Administrative Procedure in accordance with the resolution of the full bench of the Supreme Court of March 31, 2011, III CZP 112/10, applicable to decisions issued before 2004, and Article 4171 of the Civil Code regarding decisions issued after 2004). Under the amended regulations, without initiating proceedings, there will be no basis (preliminary ruling) for compensation proceedings. In accordance with the applicable regulations, the lack of a prejudicial ruling will result in a refusal to grant compensation from the statio fisci of the State Treasury that issued a defective decision causing damage, including a PnB decision or a PnU decision.
In summary, as the above considerations indicate, the amended Code of Administrative Procedure, as a general rule, will impact all administrative decisions, not just reprivatization proceedings, which were identified as the primary objective of the amendment. In turn, with respect to decisions issued under the Construction Law, the amended provisions will apply to decisions issued before September 19, 2020. However, it is worth noting that each case requires an individual assessment of the specific factual circumstances regarding the applicability of the provisions in question.
Next week we will discuss the changes to the Construction Law adopted by the Sejm resulting from the implementation of the Polish Deal program.
This alert is for informational purposes only and does not constitute legal advice.
author:
