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Archive for: e-documents

Procedural law, case V CSK 269/09

April 11th, 2010, Tomasz Rychlicki

The Supreme Court in its judgment of 10 February 2010 case file V CSK 269/09 held that publishing information on the Internet about the specific fact does not mean that it is widely known fact as defined in Article 228 § 1 of the Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, Journal of Laws (Dziennik Ustaw) No. 43, item 296, with subsequent amendments.

Article 228
§ 1 Known facts do not require evidence.
§ 2 The same applies to the facts known to the court ex officio, however, the court should draw the attention of the parties to these facts during the hearings.

The Court did not agree with the opinion that data published on the official website of the Ministry of Agriculture is well known.

Categories: Art. 228 §1 CPC | e-documents | e-evidences | Polish Civil Proceedings Code | Polish Supreme Court.

Personal data protection, case I OSK 633/08

March 11th, 2010, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 3 July 2009 case file I OSK 633/08 held that the processing/storage/retention of personal data in backup copies of bank’s IT system is nothing but the processing of these data, and such processing is possible only in all cases defined by the provisions of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments. In case, where the credit agreement was not concluded, the processing of personal data in backup copies has no justification in the provisions of the PPD and there is no such situation as referred in Article 26 of the PPD.

Article 26
1. The controller performing the processing of data should protect the interests of data subjects with due care, and in particular to ensure that:
1) the data are processed lawfully,
2) the data are collected for specified and legitimate purposes and no further processed in a way incompatible with the intended purposes, subject to the provisions of paragraph 2 below,
3) the data are relevant and adequate to the purposes for which they are processed,
4) the data are kept in a form which permits identification of the data subjects no longer than it is necessary for the purposes for which they are processed.
2. The processing of data, for the purpose other than intended at the time of data collection is allowed provided that it does not violate the rights and freedoms of the data subject and is done:
1) for the purposes of scientific, didactic, historical or statistical research,
2) subject to the provisions of Article 23 and Article 25.

The SAC also ruled that such processing is also not justified by the provisions of the Act on Banks Law.

E-access to public information, case II SAB/Wa 86/07

February 20th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 10 December 2007 case file II SAB/Wa 86/07 held that the request filed in the electronic form (e-mail), that was not signed with the qualified electronic signature, is a legally sufficient request for disclosure of public information. Furthermore, the request for disclosure of public information does not initiate the administrative proceedings and it is not intended to finalize the proceedings with the refusal. It is logical and obvious that applicant’s intention is to obtain information and not to receive a negative decision. The request for public information can take any form, unless it is sufficiently clear what is requested.

See also “Polish case law on e-access to public information” and “E-signatures in Poland“.

E-access to public information, case II SAB/Sz 148/09

February 20th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Szczecin in its judgment of 16 December 2009 case file II SAB/Sz 148/09 held that the general principle set in article 61 of the Polish Constitution, is the access to information on the activities of public authorities. Any exceptions to this rule should be formulated explicitly, and all doubts should be resolved in favor of the access.

Article 61
1. A citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury.

2. The right to obtain information shall ensure access to documents and entry to sittings of collective organs of public authority formed by universal elections, with the opportunity to make sound and visual recordings.

3. Limitations upon the rights referred to in paras. 1 and 2 above, may be imposed by statute solely to protect freedoms and rights of other persons and economic subjects, public order, security or important economic interests of the State.

4. The procedure for the provision of information, referred to in paras. 1 and 2 above shall be specified by statute, and regarding the Sejm and the Senate by their rules of procedure.

Judgments of the Polish courts are information on public matters according to the provisions of Article 1(1) of the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.

Each information on public matters constitutes public information in the understanding of the Act and is subject to being made available on the basis of principles and under the provisions defined in this Act.

The Court held that according to article 6(1) point 4 letter (a) of the API, a judgment is an official document that should be made available according to the procedures and principles set in the API.

Article 6(1)
The following information is subject to being made available, in particular on:
(…)
4) public data, including:
a)contents and form of official documents, in particular:
- contents of administrative acts and other resolutions,
- documentation on the control and its effects as well as presentations, opinions, conclusions and statements of the entities having conducted the control,

The Court also noted that anyone is allowed to request the access to public information in electronic form or in the traditional way, on paper.

E-access to public information, case II SAB/ Wa 57/09

February 18th, 2010, Tomasz Rychlicki

In 2008, the Polish media reported a story on the Polish Post which allegedly tested a system that scans envelopes and parcels. There were rumours that information gathered by such scanning could be used by the Internal Security Agency (ABW). ABW denied, but the Inspector General for Personal Data Protection has decided to investigate how the collected data are processed during the scan.

Roman P. has requested the GIODO to make available the results of the investigation. Since Roman P. filed his request by phone and then by e-mail, the GIODO informed that it will consider the request only after it receives personal data of Roman P.

The GIODO based its opinion on the provisions of article 63 § 3 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments.

§ 1. Applications (requests, explanations, appeals, complaints) may be filed in writing or by telegram, telex, fax, email or by using the form available on the website of the competent public administration, allowing data entry into the communications system of the body, as well as verbally to the protocol.

§ 2 The application shall include at least an indication of the person from whom it comes, its address and it shall satisfy other requirements stipulated in the special regulations.

§ 3 The application submitted in writing or orally to the protocol shall be signed by the applicant, and also by an employee who made the protocol. When the application is filed by a person who can not or do not know how to make a signature, the application or a protocol is signed by other person authorized, by making a reference next to the signature.

The GIODO decided that the application filed by Roman P. shall indicate the person from whom it derives, its address and the scope of the request, otherwise, the request will not be examined.

Roman P. brought a complaint to the Voivodeship Administrative Court (VAC) in Warsaw. The VAC in a judgment case file II SAB/ Wa 57/09, ruled that the GIODO failed to act and ordered the Inspector General for Personal Data Protection to examine Roman P. request within 14 days because information he demanded, is deemed as the public information as defined in article 5(2) of the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej) Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with later amendments. The Court also ruled that arguments and findings to leave the application without further examination, because it was sent by e-mail, have no support in the APC.

E-signatures in Poland

January 29th, 2010, Tomasz Rychlicki

Current Polish legislation on e-signature include the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym) Journal of Laws (Dziennik Ustaw) of 15 November 2001, No 130, item 1450, with subsequent amendments. The provisions of Article 3 of the ESA introduced two types of e-signature: “electronic signature”, which means data in electronic form which, together with other data, either attached thereto or logically associated therewith, are capable of identifying the signatory and the so-called “secure electronic signature”, which means electronic signature which is uniquely assigned to the signatory, is made using secure signature-creation device and signature-creation data that the signatory can maintain under his sole control, is related to the data to which it has been attached in such a manner that any subsequent change of the data is recognizable.

According to article 5 of the ESA, the data in electronic form bearing a secure electronic signature verified by a valid qualified certificate shall be legally recognized as equivalent to documents bearing handwritten signatures. A secure electronic signature verified by a valid qualified certificate shall ensure the integrity of the data bearing the signature and unambiguous indication of the qualified certificate by assuring that any subsequent changes of the data and any subsequent changes of the indication of the certificate used to verify the signature are recognizable.

Recently, the Polish Ministry of Economy proposed amendments to the ESA. The draft provides new types of e-signatures that are consistent with the Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signature.

The draft provides 4 types of e-signature: normal, advanced, personal and certified. The normal one will be the same features as present “electronic signature” as defined in article 3 of the ASA and will primarily serve as a declaration of identity.

The advanced e-signature will have to meet the additional requirements for certification of the person using it. It will certify the data integrity and allow you to establish the identity of the signatory to both individuals and legal persons, such as when submitting electronic invoices.

The data in electronic form signed by a qualified (secure) electronic signature will have specific legal effects – the same as a handwritten signature for the data recorded on paper. Such data will be admissible as evidence in legal proceedings. The signature will be used to sign statements of knowledge and will.

Polish case law on e-access to public information

January 21st, 2010, Tomasz Rychlicki

Below, you will find a list of judgments on e-access to public information. By “e-access to public information” I mean all issues related to obtaining public information through or with the help of IT technology. You can find a more detailed discussion on each judgment under the link provided with the case file. All judgments are given in chronological order.

- The judgment of the Voivodeship Administrative Court in Gliwice of 19 September 2011 case file IV SA/Gl 1002/11.

- The judgment of the Voivodeship Administrative Court in Gliwice of 2 August 2011, case file II SAB/Wa 86/07.

- The judgment of the Regional Court Katowice Wchód in Katowice of 27 April 2010, case file I C 19/10.

- The judgment of the Voivodeship Administrative Court in Szczecin of 16 December 2009, case file II SAB/Sz 148/09.

- The judgment of the Voivodeship Administrative Court in Warsaw, case file II SAB/Wa 57/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 10 December 2007, case file II SAB/Wa 86/07.

E-promulgation of Polish law

January 5th, 2010, Tomasz Rychlicki

The Act of 10 September 2009 on amending the Law on the promulgation of normative acts and some other legal acts, Journal of Laws (Dziennik Ustaw) of 2009, No 190 item 1473, came into force on 1 January 2010. According to the amendments, the Journal of Laws and the Polish Monitor or normative acts and other legal acts contained in them, including judgments, are made available freely for inspection and to download in the form of an electronic document from the website of the Government Legislative Center. The Minister responsible for informatization will also determine, by a regulation, the technical requirements to be met by electronic documents addressed for the announcement, containing normative acts and other acts, including judgments, taking into account the need to preserve the unity of supplied electronic documents and their possible transformation for the issue of the official journal.

Tax law, case I FSK 1169/08

August 31st, 2009, Tomasz Rychlicki

The Supreme Administrative Court (SAC) in its judgment of 3 October 2009 case file I FSK 1169/08 did not share the views that the the Directive 112 provides the absolute obligation to keep copies of invoices in the same form in which they were sent. In the opinion of the SAC, the only thing that can be inferred from the Directive is that the copy of the invoice can be stored in paper or electronic form. It is also wrong to confuse the term “issue” and “send” with regard to invoices. The Polish legislator did not exactly implement standards resulting from the Article 27(2) of the Directive. The omission of the phrase “in which they were sent or issued”, leads to ambiguity in language interpretation of the law. There is no legislative impediment to the existence of “mixed” system for sending and storage of invoices. In addition, the SAC decided that the obligation to keep invoices on paper, where other methods of storage also enable the objectives of Article 246 Directive 112 to be fullfiled, is the excessive responsibility and violates the principle of proportionality.

Categories: Directive 2006/112/EC | e-documents | e-invoices | e-law issues | Polish Supreme Administrative Court.

E-signature law, case I OPP 25/08

September 18th, 2008, Tomasz Rychlicki

The Supreme Administrative Court in its order of 24 July 2007 case file I OPP 25/08 held that the letter that was brought by electronic means must be signed in person by a party or its representative to become legally effective, because only such signature meet the requirements under Article 46 § 1 pkt 4 of the Act on the Law on proceedings before administrative courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, Journal of Laws (Dziennik Ustaw) No 153, item 1270, with subsequent amendments.

In accordance with Article 5(1) of the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym) Journal of Laws (Dziennik Ustaw) of 15 November 2001, No 130, item 1450, with subsequent amendments, the secure electronic signature verified by a qualified certificate which has legal effects specified in the Act, if it is filed during the validity of this certificate. The Chapter IX of that ESA contains provisions amending, inter alia, the Civil Code Article 60, Article 78 §1 and §2, allowing for state the will of a person in the cicil law relationship by the disclosure in electronic form. In addition, the Polish Act on the Informatization of Entities Performing Public Tasks – IEPPT – (in Polish: ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne) of 17 February 2005, Journal of Laws No 64, item 565, in Article. 36 pt 3 and 5 introduced amendments of the provisions of the Administrative Proceedings Code, i.e. Article 57 § 5 pt 1 and Article 63 § 3a by allowing the opportunity to provide a request in the form of an electronic document. The above provisions apply only to the extent that the given Act governs.

The Polish Act on Complaint on the Infringement of the Right of a Party to be Beard in Court Proceedings without Undue Delay of 17 June 2004, Journal of Laws of 16 August 2004, and in the provisions of the PBAC, there are no equivalents of the abovecited provisions of the Civil Code and the APC and the definition of electronic signatures does not exists in these acts. According to Article 2(3) of the IEPPT, the provisions of this Act shall not apply to administrative courts in the administrative proceedings. Consequently, in this case the Supreme Administrative Court was not obliged to use in the e-mail correspondnce of certificates that are referred to in the ESA.

See also “E-signature law, case II SA/Gd 573/10” and “E-signatures in Poland“.

Access to public information, case OSK 600/04

September 12th, 2006, Tomasz Rychlicki

ISOC Poland requested the President of the Social Insurance Institution – ZUS – (in Polish: Zakład Ubezpieczeń Społecznych) to make available public information concerning technical specification of the KSI MAIL format, that is used in Płatnik software. Płatnik computer program is a free but not open source software to use (fill in and send) a statement of payment declarations to the Social Insurance Institution. It works only with MS Windows.

The President of ZUS ruled that the Polish Act of 13 October 1998 on the Social Insurance System, consolidated text published in Journal of Laws (Dziennik Ustaw) of 2007 No. 11, item 74 as amended, obliges payers of social insurance to prepare documents including inter alia protected data, for instance sensitive data concerning health, in the electronic format and to transmit of such documents from Płatnik to ZUS. These data are personal data protected by law. Making them available could result in significant disruption in the supply KSI MAIL system, exposing to a breach of professional secrecy of ZUS and undermine the statutory exclusivity of the software provided by ZUS. Regardless of the abovementioned arguments, ZUS stated that KSI MAIL module is subject to business confidentiality and trade secrets due to the greement conducted between ZUS and Prokom Software S.A. on the design and implementation of a comprehensive system for social security. The agreement obliged ZUS to keep confidential all information relating to the transferred technology and solutions contained in KSI MAIL. ZUS based its final decision on article 5 of the the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej) Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.

Article 5. 1. The right to public information is subject to limitation to the extent and on the principles defined in the provisions on the protection of confidential information and on the protection of other secrets being statutorily protected.
2. The right to public information is subject to limitation in relation to privacy of a natural person or the secret of an entrepreneur. The limitation does not relate to the information on persons performing public functions, being connected with performing these functions, including the conditions of entrusting and performing these functions and in the event when a natural person or entrepreneur resigns from the right to which he was entitled to.
3. The access to public information on matters resolved before the state authorities, in particular in the administrative, criminal or civil proceedings cannot be limited, with the stipulation of it. 1 and 2, with respect to protection of the party’s interest, if the proceedings concern the public authorities or other entities performing public functions or persons performing public functions – in the scope of these functions or tasks.
4. The limitations of access to information on cases, defined in it. 3, do not breach the right to information on organisation and work of the bodies conducting proceedings, in particular on time, mode and place and the order of investigating cases.

ISOC filed a complaint before the Voivodeship Administrative Court in Warsaw. It emphasized that the technical specification of KSI MAIL is public information. Its publication broadens the possibility of fulfilling the duties of citizens who do not wish to invest in MS Windows. ISOC further argued that ZUS can not rely on contractual provisions, as it was contrary to the mandatory provisions of the API and that they are invalid. Also, ZUS made an erroneous interpretation of the law to rely on business secrets and trade secrets, because ISOC did not request the source code of the program, or other works protected by copyright or industrial property rights/patents.

The Voivodeship Administrative Court in its order of 30 January 2004 case file II SA 3732/03 held that this request concerns matters that are not subject to the administrative jurisdiction, but the civil courts which is in accordance with the provisions of article 22(1) of the API.

Article 22.
1. The entity, which was denied the access to the public information in respect to its exclusion of its openness when quoting the protection of personal data, the right to privacy and the secret other than state, official, treasury or statistical secret, is entitled to put an action to the court for making such information available.
2. The entity, to which the exclusion of public information is related, has a legal interest in commencing as an accidental intervener on the defendant’s side.
3. The competent court for resolving the cases, defined in it. 1, is the district court with respect to the seat of the entity, which refused to make the public information available.

The Supreme Administrative Court in its judgment of 3 March 2004 case file OSK 600/04 stated that the cassation complaint is unfounded and declared that, the term “when quoting” as used in article 22(1) of the API, has such meaning that it is sufficient for the entity who posses requested information to invoke the mentioned in this provision object of protection, to exclude the possibility of control by an administrative court. The administrative court cannot control in this case the legality of the decision and investigate if the indicated condition actually occurred.

E-voting, case I ACa 898/00

February 18th, 2005, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 18 September 2001, case file I ACa 898/00, held that voting with the help of computer technology, meets the requirements of secrecy within the meaning of a provision providing shareholder unfettered opportunity to vote, and is in accordance with provisions of article 411 of the The Commercial Companies Code – CCC – (in Polish: Kodeks spółek handlowych) of 15 September 2000, Journal of Laws (Dziennik Ustaw) No. 94, item 1037 with later amendments.

Art. 411. § 1. A share shall carry one vote at the general assembly.
§ 2. The voting right shall arise as of the date the share is paid for in full, unless the statutes provide otherwise.
§ 3. The statutes may limit the voting rights of shareholders controlling more than one-fifth of the total number of votes in the company. The limitation may apply only to the exercise of the voting right on shares above the limit of the votes provided for in the statutes.
§ 4. The statutes may also provide for cumulating of the votes held by the shareholders among whom there exists the relationship of dominance or dependence in the meaning of this or another act, as well as set out the rules for the reduction of the votes. In that case the votes attached to the shares of the dependent company or co-operative shall be added to the votes attached to the shares of the dominant company.

Categories: case law | e-documents | e-proceedings | e-voting | Polish Appeallate Court.