The Constitutional Tribunal found the non-constitutional transitional provision concerning the bailiff fee to be decommissioned.
A legal question to the Constitutional Tribunal was addressed last February by the Green Mountain District Court. From the transitional provision under appeal, i.e.
Article 52(2) Act dated 28 February 2018 it is clear that if the enforcement procedure was completed at the request of the creditor before the date of entry into force of the new law, i.e. before 1 January 2019, the enforcement fee was charged to the debtor.
In turn, if the waiver took place after the entry into force of the new law, the creditor was obliged to pay the fee.
Accordingly, the court asked the Constitutional Tribunal whether Article 52(2) Act dated 28 February 2018 with ventricular costs (Journal of Laws, item 770) in so far as it provides for a decision to be taken on the part of the enforcement proceedings initiated and not completed before its entry into force, without making the settlement of the charge conditional on the date on which the charge was paid, or the burden on the creditor or debtor, compatible with the Article 2 and Article 32(1) Constitution.
On Tuesday, the Court found the contested provision to be incompatible with the Constitution. As pointed out in the explanatory memorandum of the judgment, Judge Leon Kieres, adopted in the contested provision ‘criteria in the case of creditors who applied for discontinuance of proceedings before 1 January 2019, and the proceedings were concluded after the entry into force of the new law, leading to retroactive effects.” He added that "the new rules apply to the assessment of events under the former law".
The Court pointed out that the parties to the proceedings base their forecasts on the wording of the provisions in force at the time of their implementation. "The same intertemporal regulations ordering direct application of the new law do not fully respect the principle of fair play," the Constitutional Tribunal noted.
As he added, in the statement of reasons, Judge Kieres has the consequence of the contested provisions being uncertainty and inability to anticipate the effects of the actions taken by creditors.
‘The creditor applying for discontinuance of proceedings was unable, on the basis of the contested provision, to foresee on the basis of which legal status the enforcement fee will be fixed.
The acceptance that the rules governing enforcement charges are determined by the date on which the bailiff issued the order, rather than the date of the creditor's request, as a criterion does not meet the rational requirements of the legislature," the judge said.
The Court also recalled the objective of such a change in fees – it was to introduce as soon as possible a regulation "eliminating the possibility of abuse of enforcement charges as a tool for harassment of debtors". However, as he pointed out, the group of creditors who applied for discontinuance of proceedings before 1 January 2019, She wasn't uniform.
„All creditors in this group cannot be accused of being ill-willed and willing to harass debtors for additional costs. It is therefore not excluded that the proceedings of a creditor who acted in good faith and applied before 1 January 2019, will be decommissioned after the entry into force of the new law, and the proceedings of a creditor who abused the rights to harass debtors and also filed a motion for redemption before 1 January 2019, will end before the date of its entry into force," argued the TK.
The Court ruled in this case with five judges, chaired by Judge Rafał Wojciechowski. The ruling was unanimous.
Author: Bartosz Nawrot
Legal consultant associated with the law firm Russell Bedford Poland 2018.