On July 3, 2021, the Act of May 28, 2021, amending the Code of Civil Procedure and certain other acts (Journal of Laws of 2021, item 1090) entered into force. One of the provisions of this act is to enable electronic delivery of documents in civil proceedings during a state of epidemic threat or a state of epidemic declared due to COVID-19. For professional attorneys, this means that court documents addressed to them will be delivered via an information portal.
The above paragraph deliberately uses the term "e-delivery" instead of "electronic delivery" because the analysis conducted by the District Court in Warsaw shows that delivery via an information portal, introduced by Article 15zzs(9) section 2 of the Act of 2 March 2020 on specific solutions related to the prevention, counteracting and combating of COVID-19, other infectious diseases and crisis situations caused by them (hereinafter referred to as the "COVID-19 Act"), does not constitute electronic delivery within the meaning of Article 131(1) paragraph 1 of the Code of Civil Procedure. This is because an information portal is not an ICT system supporting court proceedings, which is a mandatory premise for speaking of electronic delivery*.
Furthermore, documents posted on the information portal as part of e-delivery do not contain the signature of the person issuing the document or the court's official seal, and therefore do not meet the formal requirements for a copy of a document. It should therefore be assumed that in this case, there can be no question of service of the document, only of delivery of its content. The above statement is expressly reflected in the regulations, as the legislator clearly indicates that service of documents under Article 15 zzs(9) of the COVID-19 Act occurs by posting only their content, not the documents themselves, on the information portal.
However, terminology aside, Article 15zzs(9) of the COVID-19 Act stipulates that the court must serve court documents on an attorney, legal counsel, patent attorney, or the General Counsel to the Republic of Poland by posting their content on the IT system used to make these documents available, i.e., the information portal. This amendment, however, is not permanent; it will apply during the state of epidemic threat or the state of epidemic declared due to COVID-19, and for one year after the last of these states is lifted. Mandatory service via the portal only applies to cases heard under the provisions of the Code of Civil Procedure.
It is important that service through the information portal applies only to professional legal representatives, while service of documents on parties or witnesses is still carried out in the traditional manner.
Article 15zzs(9) of the COVID-19 Act stipulates that all court correspondence addressed to a professional legal representative shall be served via the information portal, with the exception of documents that must be served together with copies of the parties' procedural documents or other documents not originating from the court. Furthermore, the aforementioned article stipulates that waiver of service via the information portal will be mandatory if such service is impossible due to the nature of the document.
However, it is crucial that legally, whether a professional attorney has an account on the information portal is irrelevant to the effectiveness of service via the information portal. Therefore, from the date these provisions enter into force, every professional attorney is required to have an account on the information portal. This is because, pursuant to Article 15zzs(9), paragraph 3, sentence 2 of the COVID-19 Act, if the professional attorney has not reviewed a court document, the document will be deemed served 14 days after its posting on the information portal. Therefore, a document is deemed served via the information portal in two cases:
1) when the court document posted on the portal is read by the attorney, i.e. when the document is clicked and displayed on the information portal,
2) after 14 days from its posting on the information portal.
Moreover, the legislator imposes on a professional representative an additional procedural obligation arising directly from Article 15zzs(1) of the COVID-19 Act, which requires the representative to provide an e-mail address for service and a contact number in the first procedural document, while failure to provide such information results in the document being deemed formally invalid.
However, importantly for legal representatives, the amendment to the COVID-19 Act, although permitting the service of court documents on professional legal representatives via an information portal, does not allow for the submission of documents via the information portal to these representatives. The idea of service via the information portal, as expressed in the amendment, assumes only one-way communication between the court and the representative. Therefore, the applicable regulations only allow for the submission of court documents to an attorney via the information portal, and do not permit such an attorney to communicate remotely with the court.
The change described in this article is sometimes compared to blockchain networks in the legal community, and indeed, certain similarities can be observed. One of the features of blockchain networks is the placement of data in a distributed ledger network and the sharing of information about this data via advanced IT tools. This shared data is not printed or delivered traditionally, but is made available for reading. Therefore, the concept of e-delivery is very similar and involves sharing documents rather than delivering them traditionally.
* P. Szymaniak, S. Cydzik, Total chaos in electronic deliveries, Official website of Dziennik Gazeta Prawna, https://serwisy.gazetaprawna.pl/orzeczenia/arty… (accessed: 15/09/2021).
This alert is for informational purposes only and does not constitute legal advice.
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