The Supreme Court, as a result of the actions taken by the Attorney General, has issued an interesting ruling relating to the condition that an emergency action may be brought.
Judgment of 3 June 2020 (reference no. I NSNc 46/19, hereinafter ‘SN’ The Supreme Court stated that, in the light of the extraordinary action, the assessment of whether a ‘dangerous’ infringement has occurred depends primarily on the gravity of the breach of the standard and does not necessarily concern the case of a judgment without the applicable legal basis.
Background
Prosecutor-General on 18 March 2019 brought an emergency action, bringing an action against the judgment of the district court of 8 May 2003 (hereinafter referred to as ‘the judgment’), alleging that the aforementioned judgment, inter alia, violated in a gross manner the substantive law by its misuse, i.e.
based on a legal basis which was not in force at the time of the judgment (Article 210 Act dated 16 September 1982 – Cooperative Law).
Furthermore, in an extraordinary complaint, the Attorney General alleged that the judgment given infringes the principles, freedoms and rights of man and of the citizen, as defined in the Constitution of the Republic of Poland of 2 April 1997 In an emergency complaint, the Attorney General requested the annulment of the contested judgment in its entirety and a ruling on the substance of the case.
The judgment itself concerned the court's ordering the defendant to leave and empty the premises. The Court of First Instance took the action into consideration, indicating that the defendant is entitled to a social establishment.
The grounds for the judgment stated that Article 210 the cooperative rights of the former member of the cooperative shall be obliged to empty the residential premises as membership expires.
In addition, the court found that the defendant was effectively excluded from membership of the cooperative, which resulted in the expiry of his right to a dwelling.
Conditions for bringing an emergency action
The grounds for bringing an emergency action have been indicated under Article 89 The Supreme Court Act. An emergency action shall be based on a final decision, a general court or a military court terminating the proceedings, where this is necessary in order to ensure the principle of a democratic rule of law which implements the principles of social justice provided that:
- 1) the judgment infringes the principles or freedoms and rights of man and of the citizen laid down in the Constitution, or
- 2) the judgment in a gross manner infringes the law by misinterpretation or misuse, or
- 3) there is an obvious contradiction between the substantive findings of the court and the content of the evidence collected,
- – and the judgment may not be revoked or amended by other exceptional remedies.
Definition of a ‘dangerous’ infringement
Supreme Court in judgment of 3 June 2020, did not decide to give a reform decision, as requested by the Attorney General, but based on Article 89(1)(1) in conjunction with Article 115(2) The Supreme Court Act limited itself to stating that the contested judgment was given in violation of the law — Article 64(2) The Constitution of the Republic of Poland. The Supreme Court did not share arguments concerning most of the allegations contained in the emergency complaint, including the complaint concerning the violation in a gross manner of substantive law.
In the judgment of the Supreme Court, it was stressed that even though the regional court referred in the justification of the judgment to an existing provision, the wording was Article 210 the cooperative rights were repeated on the date of the ruling and on the date of expiry of the defendant's right to housing Article 7 Act dated 15 December 2000 about housing cooperatives, which replaced the same provision.
According to the Supreme Court, a ‘dangerous’ violation of the law referred to by the Attorney General in an emergency complaint is a different than an ‘obvious’ violation of the law, i.e.
a visible to the average lawyer prima facie, without the need for careful analysis (see, for example, the justification of the Supreme Court order from 29 March 2019, V CSK 326/18 and the Supreme Court judgment of 8 June 2017, SNO 22/17).
Against the background of an exceptional complaint, the assessment of whether there has been a ‘dangerous’ infringement depends on: the gravity of the breach of the standard, i.e.
its position in the hierarchy of legal standards, the extent (substantiality) of its infringement, the effects of the infringement on the parties to the proceedings (see reasons for the Supreme Court judgment of 8 May 2019, I NSNc 2/19).
The Supreme Court found that the issue of the contested judgment on the basis of an inapplicable provision constitutes a manifest violation of substantive law, however, the infringement in the circumstances of the case is not of a gross nature, i.e. one which would justify the basis of an exceptional action from Article 89(1)(2) SN Act.
Author: Hanna Żołnierkiewicz
Lawyer in the Legal Department. From 2017 associated with Russell Bedford Dmowski & Partners Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He conducts the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.