The Voivodeship Administrative Court in Opole in its judgment of 18 August 2010 case file I SA/Op 215/10 held that copies of VAT invoices can be stored in electronic form, if the files are properly secured and readable and the storage system allows for the reproduction of such invoices in the paper format at the request of tax authority, in its original form.
Archive for: e-law issues
Tax law, case I SA/Op 215/10
September 6th, 2010, Tomasz RychlickiTax law, case I SA/Wr 592/10
August 31st, 2010, Tomasz RychlickiThe Voivodeship Administrative Court in Wrocław in its judgment of 27 July 2010 case file I SA/Wr 592/10 held that the Directive 112 did not include the obligation to keep copies of invoices in the same form in which they were sent. Also § 21(2) of Regulation of the Minister of Finance on 25 May 2005 on the tax refund to certain taxpayers, the advance tax refund, invoicing, the storage of invoices and the list of goods and services, to which the exemptions from taxes on goods and services are not applicable (in Polish: Rozporządzenie Ministra Finansów z dnia 25 maja 2005 r. w sprawie zwrotu podatku niektórym podatnikom, zaliczkowego zwrotu podatku, wystawiania faktur, sposobu ich przechowywania oraz listy towarów i usług, do których nie mają zastosowania zwolnienia od podatku od towarów i usług), does not follow that restriction to the form in which to store invoice was associated with the way they have been sent to the customer or made available to. The Court also noted that the invoice should be issued in duplicate, but this does not mean that the invoice has to be kept identical in form, which is an invoice sent to the buyer. Invoice kept by the issuer and received by the buyer has to be identical in content and therefore the information contained on the invoice relates to the transaction.
Telecommunications law, case I OSK 1079/10
August 3rd, 2010, Tomasz RychlickiThis is the continuation of a story described in “Personal data protection, case II SA/Wa 1598/09“. The Supreme Administrative Court in its order of 15 July 2010 case file I OSK 1079/10 decided to stay the execution of the decision issued by the Inspector General for Personal Data Protection (GIODO) and ruled that the Polish Act of 16 July 2000, Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with later amendments, provides broader protection of personal data because of telecommunications confidentiality, than the provisions of the Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), Journal of Laws (Dziennik Ustaw) of 29 October 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with later amendments.
The Court held that the disclosure of IP addresses which enable identification of specific individuals, that was ordered during administrative proceedings initiated with regard to disclosure of such data, while such proceedings did not ended with judgment in force, may violate the provisions of Article 160 of the TLA.
Article 160.
1. An entity participating in the performance of telecommunications activities within public networks and entities cooperating with it shall keep the telecommunications confidentiality.
2. Entities referred to in paragraph 1 shall maintain due diligence, within the scope justified by technical or economic reasons, while securing telecommunications equipment, telecommunications networks and data collections from disclosing the telecommunications confidentiality.
3. A person coming into possession of a message not meant to be read by him/her when using radio or terminal equipment shall keep the telecommunications confidentiality. The provisions of Article 159 (3) and (4) shall respectively apply.
4. The recording of a message acquired in a manner described in paragraph 3 by a body executing control of telecommunications activities in order to document a violation of a provision of the Act, shall not be a violation of the telecommunications confidentiality.
While assessing the validity of the request to stay the execution of GIODO’s decision to disclose the requested IP address at this stage of proceedings, the Court agreed with the author of the cassation complaint, that the execution of the questioned decision at this stage makes it impossible to reverse the actions taken after the disclosure of the IP addresses, and such action should be seen as causing the effects that are difficult to reverse according to Article 61(3) 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 later amendments.
§ 1 Filing a complaint does not stay the execution of the act or actions.
(…)
§ 3 After the delivery of a complaint to the court, the court may issue at the request of the applicant, the order to stay the execution, in whole or in part of the act or actions referred to in § 1, if there is a risk of causing significant damage or cause to be difficult to reverse, with the exception of the provisions of local law which entered into force, unless the special Act excludes the stay of their execution. The refusal to stay the execution of the act or actions by the authority, does not deprive the applicant of action to the court. This also applies to acts issued or adopted in all proceedings conducted within the same case.
The SAC held that if the Supreme Administrative Court would agree with the cassation complaint filed against the judgment of the Voivodeship Administrative Court of 3 February 2010 case file II SA/Wa 1598/09, the effects of the execution of the questioned decision could not be reversed, because the IP address identifying a specific person is available to another participant in the proceedings. Accordingly, the court held that the correct solution at this stage of proceedings, is to stay the execution of the questioned decision also with a view to the impact of which its execution might result in, as well as the nature of the protection of personal data resulting from the relevant regulations such as, inter alia, the TLA.
See also “Polish regulations on personal data protection“, “Polish case law on personal data protection“.
Tax law, case I SA/Op 177/10
July 31st, 2010, Tomasz RychlickiThe Voivodeship Administrative Court in Opole in its judgment of 23 June 2010 case file I SA/Op 177/10, pointed to the lack of precision in the national legislation. The court stated that § 21(2) of Regulation of the Minister of Finance on 25 May 2005 on the tax refund to certain taxpayers, the advance tax refund, invoicing, the storage of invoices and the list of goods and services, to which the exemptions from taxes on goods and services are not applicable (in Polish: Rozporządzenie Ministra Finansów z dnia 25 maja 2005 r. w sprawie zwrotu podatku niektórym podatnikom, zaliczkowego zwrotu podatku, wystawiania faktur, sposobu ich przechowywania oraz listy towarów i usług, do których nie mają zastosowania zwolnienia od podatku od towarów i usług), does not provide that the limitation as to the form in which to store invoice is associated with the way they have been sent to the customer or have been made available in a different way. The VAC ruled that a literaly reading of the provisions included in Polish Regulation does not lead to the interpretation that if the invoice is made in a particular paper form, a copy must also be kept in the same form thereof.
Advertising of pharmaceuticals, case VI SA/ Wa 1136/10
July 29th, 2010, Tomasz RychlickiThis is the continuation of a story described in “Advertising of pharmaceuticals, case II GSK 461/09“. The Voivodeship Administrative Court in Warsaw in its judgment case file VI SA/ Wa 1136/10 canceled the decision of the Main Pharmaceutical Inspector (MPI) that ordered the Polish Federation for Women and Family Planning (in Polish: Federacja na rzecz Kobiet i Planowania Rodziny) to remove information about different contraceptions. Such information was published on the website operated by the PFWFP. Being bound by a legal interpretation issued by the Supreme Administrative Court, the VAC ruled that the mere use of the name of a pharmaceutical product does not prejudge that such message is advertising. One cannot automatically equate information on medicinal products with an incentive to use them.
See also “Polish regulations on pharmaceutical trade marks” and “Polish case law on advertising of pharmaceuticals“.
Civil law, case I ACa 295/10
July 27th, 2010, Tomasz RychlickiAllego.pl is a very popular Polish auction website. Michał Z. is one of many of its users. He was acting on behalf of his father’s company when he placed an auction. When setting the option “buy now”, he allegedly by mistake underpriced the item he was trying to sell. The item was valued for 74000 PLN but Michał Z. set the “buy now” price for 7400 PLN. Alicja W. decided to buy this item and she choose “buy now” option. She received an e-mail confirming her purchase from Allegro.pl
Michał Z. tried to void the contract, arguing that he has made a mistake when setting a price for this auction. When Alicja Z. came for the auctioned item, its owners have refused to release it. They proposed purchase of another one – in a promotional price of 50000 PLN. Alicja Z. did not agree to a subsequent proposals, including 20000 PLN compensation and she sued.
The District Court in Radom dismissed her claim. The Court ruled that the parties came to the conclusion of the contract of sale, but Michał Z. has successfully evaded of legal consequences of his offer, because it was made by error of fact. It was clear for the Court that the value of the item was given incorrectly, and it did not correspond to real costs of such products. The Court ruled that Alicja W. was certainly aware of this price disparity. She could have acquired such knowledge even from the website of the seller because the address was included in the offer. Alicja Z. appealed.
The Appellate Court in Lublin in its judgment case file I ACa 295/10 held that if the declaration of will has been made to another person, the evasion of legal consequences it permissible only if the error was caused by that person, even if such person was not guilty, or if such person was aware of the error (for example such knowledge was acquired during the negotiations) or the error could easily be noted by such person. According to the Court, none of these conditions has occurred in this case. The Court ruled that it cannot be assumed that someone must be aware of the fact that the price is wrong, and that it was possible for such person to find out the actual price.
The Appellate Court ruled that the District Court overlooked the fact that the auction was placed on Allegro website, which has its own rules (TOS) of trading. The item was only available at the auction with the “buy now” option, in which the seller puts the goods at a fixed, predetermined price. The contract between the seller and the buyer takes upon confirmation of the “buy now” option, as the buyer is automatically notified. The terms of such auction cannot be changed in relation to the buyer who has made an offer, before such change was made. The seller, who choose this type of auction, is bound by the rules and cannot to change the conditions of the transaction after a bid by the buyer. The Appellate Court sent this case back for reconsideration.
Personal rights, case I ACa 1402/09
July 16th, 2010, Tomasz RychlickiThe Appellate Court in Warsaw in its judgment of 15 July 2010 case file I ACa 1402/09 held that even if a website only republishes articles or summaries of works published in major periodicals, it is not absolved from responsibility for infrigement of personal right/interests of a person who was described in such an article.
Computer crimes, case I KZP 7/10
July 9th, 2010, Tomasz RychlickiThe Supreme Court in its order of 29 June 2010 case file I KZP 7/10 held that, the prescription of defamation crime is counted from the date of publication of the offensive content. This crime is defined in article 212 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.
Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 3. When sentencing for an offence specified in §1 or 2, the court may adjudge a supplementary payment in favour of the injured person or of the Polish Red Cross, or of another social purpose designated by the injured person a supplementary payment (nawiązka).
§ 4. The prosecution of the offence specified in § 1 or 2 shall occur upon a private charge.
This issue was referred to the Supreme Court by the District Court, who had inquired whether the defamation is a crime of continuous nature, which means that in case of defamatory entry placed on the Internet, it is committed as long as entry is available on the website. Interestingly, the SC refused to answer this question but the Court deliberated very wide on this issue in the justification of the order. The Supreme Court ruled that on-line defamation is not a continuous crime, which would involve creating and maintaining the status recognized by law as unlawful. The Court was aware of the fact the interests of the victim are violated as long as the defamatory content is publicly available on a website. However, per analogy to the printed press, where the victim’s interests are harmed as long as there are archived copies of newspapers containing offensive words.
The Supreme Court held that the offense involving the placement of a defamatory content in the Internet as referred to in article 212 § 2 of the CC is committed at the moment to making an entry and not while removing it. This means that the perpetrator cannot be prosecuted with the private charge after a year from the time when the victim learned about the offender, but no later than the expiry of three years from the time it was committed.
Tax law, case III SA/Wa 25/10
July 7th, 2010, Tomasz RychlickiThe Voivodeship Administrative Court (VAC) in Warsaw in its judgment of 5 July 2010 case file III SA/Wa 25/10 confirmed the interpretation that contracts based on providing access to websites for displaying ads should be deemed as the lease of such a website. That’s the most favorable interpretation from the perspective of the website owner and the advertising company. The first can choose a lump sum and pay 8.5% tax regardless of income. The company is not required to act as a withholding agent, who is obliged to collect withholding income tax.
See also “Tax law, case I SA/Kr 60/10“.
Tax law, case ITPP3/443-52/10/JK
July 5th, 2010, Tomasz RychlickiThe Polish newspaper Gazeta Prawna reports in the article entitled “Faktury papierowej nie można przechowywać w formie elektronicznej” on the individual interpretation of the Director of Tax Chamber in Bydgoszcz of 17 June 2010 No. ITPP3/443-52/10/JK regarding e-invoices. The Director explained that there is no possibility to store electronic invoices, which were issued and sent to the contractor in paper form. The tax regulations do not provide that taxpayers can store documents, copies of sales invoices issued in paper form, in electronic form, with the possibility of printing only when the need arose. On the contrary, these regulations require the taxpayer to retain copies of sales invoices and correction invoices in the original form that was created at the time of issue of the originals of these documents. In addition, there is no legal basis for the application of such a mixed-mode, in which on the one hand the invoice would be issued in paper form, and copies of invoices to be kept in the electronic form.
An entrepreneur seeking to reduce costs associated with invoicing can sign invoices issued in the electronic form with the qualified electronic signature, and after prior approval obtained from the recipient of such a document, send it via e-mail, deliver it on a CD or other electronic medium. Such system of delivery of documents that also ensures its authenticity and integrity, not only reduce the cost of billing on the drawer side, but also reduce costs of customers of such entrepreneur, and will be in accordance with the provisions governing the matter of invoicing.
The Polish Ministry of Finance treats only two types of invoices as legitimate way of billing if they could not be received personally. These are paper invoices that one may send to its customer by post or courier, or electronic, not so popular, because to use it the entrepreneurs must pay for the so-called qualified e-signature.
The Polish newspaper Gazeta Wyborcza reports in its article entitled “Zabawa w zginanie faktur” that lots of companies in Poland send invoices by e-mail in the attached file (usually scanned), because it’s faster, more convenient and cheaper. One does not pay for stamps or envelopes. There is only one problem – the tax authorities believe that it is illegal activity. In the case of tax control, a company is threaten by financial penalties.
But Polish entrepreneurs have found a solution for such unrealistic approach. The invoice that was received by e-mail is printed and bend in half. It looks like it was taken out of the envelope. There is no provision in the tax law tha would require the storage of envelopes. The tax control is not able to prove that it wasn’t printed by the issuer of the invoice and send by post or courier. Almost everyone is happy.
The Ministry of Finance respects the decision of the Supreme Administrative Court that was described in the post entitled “Tax law, case I FSK 1444/09“, but it does not mean that the Ministry agrees with legal arguments presented by the SAC. The Republic of Poland is a civil law country and there are no binding precedents. It means the every entrepreneur would have to go the same way as the one whose case ended before the SAC.
See also “Tax law, case III SA/Wa 396/10“.
E-registry of mortgages
June 18th, 2010, Tomasz RychlickiOn 16 June 2010, the Polish Ministry of Justice introduced the Internet system of land registry/mortgages. It has now over 12.1 million of entries and the remaining 6 million is expected to be completed within two years. The Registry was introduced by the Regulation of the Minister of Justice on the establishment and operation of land registry in the computer system of 20 August 2003, Journal of Laws (Dziennik Ustaw) No. 162, item 1575 with later amendments. Browsing of a land/mortgages register is defined as a call on the monitor’s screen of the desired land register.
Internet domains and trade mark law, case I ACa 1334/07
June 17th, 2010, Tomasz RychlickiThe District Court in Warsaw in its judgment of 29 August 2007, case file XVI GC 756/06 dismissed the complaint filed by “Euro–net” sp. z o.o. against the judgment of the Court of Conciliation for Internet Domains at the Polish Chamber of Information Technology and Telecommunications of 23 March 2006, case file 22/05/PA PDF file, in which the Court of Conciliation dismissed the “Euro-net” complaint against Rafał Falęcki in case of infringement of trade mark rights and unfair competition delict/tort concerning eurortv.com.pl domain name.
The Appellate Court in Warsaw in its judgment of 16 April 2008, case file I ACa 1334/07, DOC file, dismissed the appeal, although it also found that some of the allegations included in the complaint proved to be accurate.
The Court of Conciliation violated the adversarial rule because it has conducted an investigation of evidence ex officio, by looking on web pages and performing a search for disputed words “euro” and “rtv” in Google. The Court has not made any survey protocol or notes. This was made personally by the arbitrator without a request of both parties, however, the parties have not raised any comment to that evidence. The Court of Conciliation should issue the provision of evidence, indicating the date and place to carry out, so the parties could participate in this investigation. However, the appeal did not contain any allegations as to the veracity of the abovementioned evidence. The court may conduct investigation of evidence ex officio and on its own initiative but it should do it only in situations of an exceptional nature.
The Appellate Court did not agree with the “Euro-net” that the circumstances in which the investigation of evidence was conducted required special knowledge, and therefore should be subject to expert opinion. The Court of Conciliation made only a visual overview of the web pages of the plaintiff and the defendant, to which it was not necessary to posses special knowledge in the field of IT. The Appellate Court held that since the issue of the case was the infringement of “Euro-net” rights of protection for trade marks that was allegedly made by Rafał Falęcki in the Internet, therefore the inspection of his websites was sufficient way to determine whether and how the defendant used plaintiff’s trademarks. The expertise is not needed for such action, because a regular Internet user usually does not have such knowledge. It was a regular Internet user who could be mislead, in particular by a risk of associating the domain name with a registered trade marks, as defined in article 296(2)(ii) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with later amendments.
2. Infringement of the right of protection for a trademark consists of unlawful use in the course of trade of:
(ii) a trademark identical or similar to a trademark registered in respect of identical or similar goods, if a likelihood of misleading the public, including in particular a risk of associating the trademark with a registered trademark, exists;
However, there were no doubts for the Court that provisions of article 153 of the IPL mean that one cannot infringe the protection rights for a trade mark in the Internet.
Article 153
1. The right of protection shall confer the exclusive right to use the trademark for profit or for professional purposes throughout the territory of the Republic of Poland.2. The term of the right of protection shall be 10 years counted from the date of filing of a trademark application with the Patent Office.
3. The term of protection may, at the request of the right holder, be extended for subsequent ten-year periods in respect of all or of a part of the goods.
4. The request referred to in paragraph (3) shall be submitted before the expiration of a running protection period, however not earlier than one year before the expiration thereof. The request shall be submitted together with the payment of a due protection fee.
5. The request referred to in paragraph (3) may also be submitted, against payment of an additional fee, within six months after the expiration of a protection period. The said time limit shall be non-restorable.
6. The Patent Office shall make a decision on refusal to extend the term of protection for a trademark, where the request has been submitted after the expiration of the time limit referred to in paragraph (5) or the due fees referred to in paragraphs (4) and (5) have not been paid.
According to the Court, one cannot use signs (or its elements) or similar trade marks, in its Internet domain names, if its business deals with selling the same group of products. There was no question that the abovementioned rule belongs to the fundamental socio-economic principles of the legal order of the Republic of Poland. However, in this case, such conditions were not met, bacuse all signs constituting “Euro-net” trade marks and used by Rafał Falęcki lack distinctive character, there was no risk of confusion, and there existed the exclusion of protection of signs as set out in article 156(1)(ii) of the IPL.
1. The right of protection shall not entitle the right holder to prohibit third parties from using, in the course of trade:
(ii) indications concerning, in particular, the features and characteristics of goods, the kind, quantity, quality, intended purpose, origin, the time of production or of expiration of usability period,
There is one thing I wanted to add. I asked the Appellate Court in Warsaw to send me the judgment via e-mail. My request was based on the Polish Act on access to public information. On 14 June 2010 I received an e-mail from the Court.
W związku z wnioskiem z dnia 11 czerwca 2010 r. o udostępnienie informacji publicznej uprzejmie informuję, że opłata za udostępnienie treści wyroku Sądu Apelacyjnego w Warszawie z dnia 16 kwietnia 2008 r. w sprawie o sygn. akt I ACa 1334/07 wraz z uzasadnieniem – zgodnie z Zarządzeniem Nr 130/09 Prezesa Sądu Apelacyjnego w Warszawie z dnia 31 lipca 2009 r. – wynosi 8 zł (1 zł za stronę) – w wersji elektronicznej. Opłatę można uiścić w kasie Sądu, znakami sądowymi lub przelewem bankowym na konto Sądu Apelacyjnego w Warszawie nr 93 1010 1010 0404 1322 3100 0000 z dopiskiem ” informacja publiczna Adm. 0137-119/10″.
I was informed that according to the Decree No 130/09 of the President of the Court of Appeal in Warsaw of 31 July 2009, the fee for access to the judgment – is 8 PLN (1 PLN per page) – in the electronic version. I had no time to argue so I paid. However, as you may remember from my post entitled “E-access to public information, case I C 19/10“, price-lists and flat-rate charges for making the public information available, may violate the provisions of the Polish Act of 6 September 2001 on access to public information.
See also “Polish case law on domain names“.
Internet domains, case C-569/08
June 3rd, 2010, Tomasz RychlickiThe Court of Justic of European Union in its judgment of 3 June 2010, case C‑569/08, Internetportal und Marketing GmbH v. Richard Schlicht, ruled on bad faith registration of EU domain names.
1. Article 21(3) of Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the .eu Top Level Domain and the principles governing registration must be interpreted as meaning that bad faith can be established by circumstances other than those listed in Article 21(3)(a) to (e) of that regulation.
2. In order to assess whether there is conduct in bad faith within the meaning of Article 21(1)(b) of Regulation No 874/2004, read in conjunction with Article 21(3) thereof, the national court must take into consideration all the relevant factors specific to the particular case and, in particular, the conditions under which registration of the trade mark was obtained and those under which the .eu top level domain name was registered.
With regard to the conditions under which registration of the trade mark was obtained, the national court must take into consideration, in particular:
- the intention not to use the trade mark in the market for which protection was sought;
- the presentation of the trade mark;
- the fact of having registered a large number of other trade marks corresponding to generic terms; and
- the fact of having registered the trade mark shortly before the beginning of phased registration of .eu top level domain names.
With regard to the conditions under which the .eu top level domain name was registered, the national court must take into consideration, in particular:
- the abusive use of special characters or punctuation marks, within the meaning of Article 11 of Regulation No 874/2004, for the purposes of applying the transcription rules laid down in that article;
- registration during the first part of the phased registration provided for in that regulation on the basis of a mark acquired in circumstances such as those in the main proceedings; and
- the fact of having applied for registration of a large number of domain names corresponding to generic terms.
Tax law, case I FSK 1444/09
May 21st, 2010, Tomasz RychlickiThe Polish entrepreneur asked the Director of the Tax Chamber in Kraków, whether the inclusion in the billing of VAT of the amount of tax charged on the purchase of goods and services on the basis of invoices and correction invoices received by e-mail or fax, not in the form of electronic invoices with digital signature, is correct. The Director ruled that such interpretation is incorrect. The Company did not agree with this decision and filed a complaint to the administrative court. The Voivodeship Administrative Court (VAC) in Kraków in a judgment of 17 March 2009, case file I SA/Kr 97/09 dismissed the case. The Company filed a cassation complaint. The Supreme Administrative Court in a judgment of 20 May 2010, case file I FSK 1444/09, ruled that invoices that were sent via fax or e-mail are equivalent to these sent via traditional mail. What’s more important, such invoices do not need any electronic signature.
E-access to public information, case I C 19/10
April 29th, 2010, Tomasz RychlickiGrzegorz W. made a request for access to minutes of meetings of the audit committee of the city council. He requested that the information was sent to his home address. The Municipality and City Czerwionka – Leszczyny replied that it is possible to get acquaint with the requested documents in their virtual version that was published in the Bulletin of Public Information and there was also an option to obtain a photocopy or computer file upon application and payment of a fee based on the provisions of article 1(1) 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 later 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.
Grzegorz W. informed the Municipality and City Czerwionka – Leszczyny that he expects to receive the documents in the form of photocopies. Documents were sent along with request for payment based on the rules issued by the Mayor on charges for making the public information available. Grzegorz W. refused to pay and urged the Mayor to amend the ordinance in question as it was incompatible with articles 7(2) and 15(2) of the API.
Article 7. 1. Making public information available takes place by means of:
1) announcing public information, including official documents, in the Public Information Bulletin, mentioned in Article 8,
2) making it available, mentioned in Articles 10 and 11,
3) entrance into the meetings of the bodies, defined in Article 3, it. 1, point 3, and making the materials available, including the audio-visual and tele-communicating, documenting these meetings.
2. Access to public information is free, with the stipulation of Article 15.(…)
Article 15. 1. If as a result of making public information on the petition, defined in Article 10, it. 1, the entity obliged to do this, is to incur the additional costs connected with the method defined in the petition of a method of making it available or necessity to transform the information in the form pointed in the petition, this entity is entitled to the payment from the petitioner covering these costs.
2. The entity, defined in it. 1, within 14 days of submitting the petition, shall notify the petitioner of the amount of the payment. Making the information available in accordance with the petition takes place after the expiration of the period of 14 days of notifying the petitioner unless the petitioner makes within this period the change in the petition in the scope of method and form of making this information available or withdraw the petition.
After very active exchange of letters and calls between both parties, the case went to court. On 7 October 2009, the Referee in the Regional Court Katowice Wchód in Katowice made the order in the admonition proceedings, case file I Nc 1140/09/13 and adjudged Grzegorz W. to pay 14,58 PLN plus costs of proceedings. Grzegorz W., filed an objection against the order and the Municipality and City Czerwionka – Leszczyny sustained their claims. The Regional Court Katowice Wchód in Katowice in a judgment of 27 April 2010, case file I C 19/10, PDF file, rejected all claims filed by the Municipality and City Czerwionka – Leszczyny. The Court held that article 7(2) of the API introduces the principle of free access to public information. All exceptions to this rule are provided in article 15(2) of the API. There are only two exceptions to the principle of free access. The first concerns the method (form) of making the information available and the second concerns a situation in which additional costs are associated with the transformation of the requested information. According to the Court, the forms should be understood by both the particular shape of the information held, which requires additional effort (for instance digitization and processing of documents held by the entity) and as a special way of making such information available. The Court also noted that the entity making the information available is obliged to ensure the possibility of copying of public information or its printout or sending the public information or transferring it to the appropriate, commonly used information carrier. The Court held that the Municipality and City Czerwionka – Leszczyny should also demonstrate that it had incurred additional costs. Finally, the Court also held that making the price-lists and introducing flat-rate charges for making the public information available, violates the provisions of the API because each price-list/tariff is a form of lump sum and this does not correspond to the essence of the costs actually incurred. Article 15(1) of the API indicates the additional costs and therefore the costs that were actually incurred by a given entity.
See also my post entitled “Polish case law on e-access to public information“.