Regulated activity — the change of registered office does not always require the Authority to decide to suspend administrative proceedings

From one of our clients performing business activities on the provision of protection services for persons and property, the supervisory authority has initiated a review procedure in view of the gross infringement of the Act of 22 August 1997 on the protection of persons and property and subsequently issued a decision to revoke the concession. The customer disagreed with the decision of the body and challenged the decision to the provincial administrative court, which divided the company’s arguments and annulled the contested decision.

The decision was subsequently contested by an authority to the NSA which dismissed the action of the authority and thus the decision of the provincial administrative court became final.

During the period between the judgment of the first instance and the planned case by NSA, the client of the law firm decided to change the seat of the company and did so. Please note that the provisions of the Act of 22 August 1997 the protection of persons and property shall specify the component elements of the content of the concession and the time limit within which the authority should be informed of the changes made.

According to  Article 18 Act on 22 August 1997 on the protection of persons and property:

The concession shall contain:

• 1) the undertaking, its registered office and address or address of residence;
• 1a) number of entrepreneurs in the National Court Register or information about entry in Central Register and Information on Business Activity and tax identification number (NIP);
• 2) names of shareholders or members of the Management Board, prosecutors and attorneys where they are established, with an indication of persons entered on the list of qualified physical protection workers or qualified technical security workers;
• 3) identification of the scope of business activities and the form of services;
• 4) an indication of the place of business;
• 5) determination of its duration;
• 6) identification of the area of economic activity for the protection of persons and property and the date of its commencement.

The concession may contain specific conditions for the exercise of an economic activity in respect of the protection of persons and property services laid down by the authority referred to in Article 16.

The entrepreneur is obliged to notify the concession authority of changes in the data referred to in section 1 points 1 and 1a and 2 and 4, time 14 days from the date of their establishment.

Where the trader does not notify the authority of the changes referred to in Article 18, it is liable to result in the possibility for the Authority to initiate administrative proceedings, which may even result in the withdrawal of the concession.[1]

The client of the law firm operating in the form of a limited liability company changed the registered office of the company and notified the body of the change. However, to surprise the customer, the body based on content Article 97(1)(4) He suspended the administrative procedure arguing that the suspension of the proceedings was compulsory because of the need to wait for the outcome of the judicial and administrative proceedings carried out by the NSA, since the decision of the court would depend on the direction of the case.

Provision Article 97(1)(4) It states that a public administration authority suspends proceedings where the examination of the case and the decision is subject to prior settlement of a preliminary question by another authority or court.

The provision in which the authority suspended the proceedings was devoid of the substance of the preliminary question.

Acting on behalf of the client, we lodged a complaint with the Provincial Administrative Court in Warsaw, in which we alleged a violation of the provisions referring to the mere justification of the judgment without legal justification, i.e. a compulsory element of any judgment or judicial order.

We have raised the plea that there is no need to suspend the procedure, as there were no grounds for doing so, and the court has not put forward a legal question. The WSA in Warsaw divided our position that the preliminary issue is only one issue that prevents the issue from being resolved. On the other hand, the fact that the outcome of another procedure may affect the content of the decision cannot demonstrate the existence of a preliminary question.

This case concerns a case under the signature of: V SA/Wa Directive 2099/22 (the judgment is final).

Written by Michał Pankiewicz