Archive for: e-documents

Tax law, case I SA/Op 215/10

September 6th, 2010, Tomasz Rychlicki

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.

E-access to public information, case I OSK 1727/09

September 4th, 2010, Tomasz Rychlicki

A Polish law firm requested the Office of the Attorney General of the State Treasury to disclose public information in the form of all unfavorable for the State Treasury decisions of common courts and the Supreme Court along with their written justifications, issued in 2008, in cases of reprivatization, in which the State Treasury was represented by the Attorney General of the State Treasury. The President of the Office of the Attorney General of the State Treasury refused and argued that the requested information has the nature of information processed, therefore, the applicant must also show particularly important public interest. The law firm filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 23 September 2009 case file II SA/Wa 978/09 reversed the contested decision and held that legal commentators and the case-law formed the view that information deemed as simple is information that its substance does not change prior to its disclosure. However, the processed information is qualitatively new information that did not exist in the final content and form, although its source is in the materials held by the entity obliged to disclose such information. Thus, a fundamental feature that distinguishes processed public information from simple public information is that the authority does not posses processed public information, and for its production, it is necessary to carry out certain operations and activities on simple public information held by the entity, which results in the creation of the new quality of information. This new quality information is not only technically another compilation of existing information – another way of ranking previously held information, but different, qualitatively new information, usually leading to a specific assessment of the phenomenon, whether a particular interpretation, finding differences or similarities. In order to produce the processed information it is necessary to submit information under analysis, synthesis and produce in this way a new quality of information that does not result from the wording of any unit of information that was subject to processing, in general, it results from the sum of (a set of) individual pieces of information that has been processed. Therefore, the processed information does not results from a different order of possessed information, but from the new immanent quality that was obtained from the processing of new information. Only ranking and listing of judgments according to a specific criterion does not bear characteristic of processed information, but it has the nature of labor-intensive information, and creations of such information can only decide on the cost of production. Time-consuming, costly and organizational difficulties – technical or office that are associated with the creation and development of a public information cannot be treated as the exempt from the obligation to disclose of such information. Actions devoted to the necessary anonymization of the selected judgments do not constitute the production of processed information, because the anonymization process is a technical operation, as a result of which new information is not created.

The Supreme Administrative Court in its judgment of 3 August 2010 case file I OSK 1727/09 dismissed the cassation complaint filed by the President of the Office of the Attorney General of the State Treasury.

See also “Polish case law on e-access to public information“.

Tax law, case I SA/Wr 592/10

August 31st, 2010, Tomasz Rychlicki

The 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.

Tax law, case I SA/Op 177/10

July 31st, 2010, Tomasz Rychlicki

The 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.

Tax law, case ITPP3/443-52/10/JK

July 5th, 2010, Tomasz Rychlicki

The 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 Rychlicki

On 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.

Tax law, case I FSK 1444/09

May 21st, 2010, Tomasz Rychlicki

The 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 Rychlicki

Grzegorz W. made a request for access to minutes of meetings of the audit committee of the city council. He asked 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. 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 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.

Grzegorz W. informed the Municipality and City Czerwionka – Leszczyny that he expects to receive the documents in the form of photocopies. All documents were sent along with the 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 the provisions of 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 the court. On 7 October 2009, the Referee in the Regional Court Katowice Wschód 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 the 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 its judgment of 27 April 2010 case file I C 19/10 rejected all claims filed by the Municipality and City Czerwionka – Leszczyny. The Court held that Article 7(2) of the API introduced 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 “Polish case law on e-access to public information“.

Tax law, case III SA/Wa 396/10

April 18th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 8 April 2010, case file III SA/Wa 396/10, ruled that there is no legislative impediment to the existence of a mixed system for the storage of invoices, which consists of sending an invoice in paper and storage of its electronic copies with the option to print at the request of a legitimate authority. Such an interpretation was corroborated by teleological considerations, environmental and economic. According to the VAC the different findings would lead to a breach of the principle of proportionality, as set out in article 5(3) of the Treaty on European Union.

3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal C 83 of 30 March 2010. PDF files.

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 a specific fact does not mean that it is deemed as “widely known fact”, as it was defined in Article 228 § 1 of the Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in 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 information or fact.

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.

See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

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.

See also “Polish case law on e-access to public information“.

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, published in 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 against this decisopn. The Voivodeship Administrative Court in Warsaw in its 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), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent 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.

See also “Polish case law on e-access to public information“.

E-signatures in Poland

January 29th, 2010, Tomasz Rychlicki

The current Polish legislation on e-signature includes the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym), published in 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 of 15 March 2013 case file II SAB/Wa 513/12.

– The judgment of the Voivodeship Administrative Court of 18 December 2012 case file II SAB/Wa 335/12.

– The judgment of the Voivodeship Administrative Court in Kraków of 26 November 2012 case file II SAB/KR 152/12.

– The judgment of the Voivodeship Administrative Court in Warsaw of 24 October 2012 case file II SAB/Wa 245/12.

– The judgment of the Voivodeship Administrative Court in Kraków of 18 September 2012 case file II SAB/Kr 105/12.

– The judgment of the Supreme Administrative Court of 14 September 2012 case file I OSK 1203/12.

– The judgment of the Voivodeship Administrative Court of 13 July 2012 case file II SAB/Wa 30/12.

– The judgment of the Supreme Administrative Court of 21 June 2012 case file I OSK 730/12.

– The judgment of the Supreme Administrative Court of 21 June 2012 case file I OSK 666/12.

– The judgment of the Voivodeship Administrative Court in Lublin of 20 March 2012 case file II SAB/Lu 10/12.

– The judgment of the Supreme Administrative Court of 3 February 2012 case file I OSK 2172/11.

– 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 Supreme Administrative Court of 3 August 2010 case file I OSK 1727/09.

– 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.

– The judgment of the Supreme Administrative Court of 14 March 2006 case file I OSK 190/06.

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, published in 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.

E-access to public information, case I OSK 190/06

September 4th, 2009, Tomasz Rychlicki

On 6 June 2004, the editor in chief of one of the Polish magazines requested the Minister of Internal Affairs and Administration for access and disclosure of the list of entrepreneurs who have been authorized to carry out business activity in the detectives and investigation services. The spokesman of the Minister replied that the registry of companies to whom such permits and licenses have been granted, as a whole, constitutes a database within the meaning of Article 2(1) point 1 of the Polish of 27 July 2001 on Protection of Databases – APD – (in Polish: Ustawa o ochronie baz danych), published in Journal of Laws (Dziennik Ustaw) No. 128, item 1402 with subsequent amendments. The whole structure of the registry is subject to legal protection and the its individual availability must be understood as the possibility to receive information about a specific item of the database. There are no procedural obstacles that the interested parties may receive information or data about a particular entrepreneur to whom the permit has been issued. So, as a general rule, the access to information contained in the registry is open, it does not mean, however, that the entire database should be disclosed – as a legal structure. The magazine filed a complaint on failure to act. The case went through all instances.

The Supreme Administrative Court in its judgment of 14 March 2006 case file I OSK 190/06 dismissed it the cassation complaint filed by the editorial team of the magazine.

See also “Polish case law on e-access to public information“.

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.

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 of 30 August 2002 on the Law on Proceedings Before Administrative Courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi), published in 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), published in 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 of 17 February 2005 on the Informatization of Entities Performing Public Tasks – IEPPT – (in Polish: ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne), published in 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.

In the Polish Act of 17 June 2004 on Complaint on the Infringement of the Right of a Party to be Beard in Court Proceedings without Undue Delay, published in 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

The Internet Society Poland requested the President of the Social Insurance Institution – ZUS – (in Polish: Zakład Ubezpieczeń Społecznych) to disclose 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 that can be used to fill in and send a statement of payment declarations to the Social Insurance Institution. It works only with MS Windows operating systems.

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 the provisions of 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), published in 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 e-voting is fully in accordance with the provisions of Article 411 of the Code of Commercial Companies – CCC – (in Polish: Kodeks spółek handlowych) of 15 September 2000, Journal of Laws (Dziennik Ustaw) No. 94, item 1037 with subsequent 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.

The Court decided 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.