Archive for: e-signature

E-signature, case I OPS 10/13

March 27th, 2015, Tomasz Rychlicki

The Supreme Administrative Court in its order of 12 May 2014 case file I OPS 10/13 held that the current legal status of administrative court proceedings, as defined in Article 46 § 1 pt. 4 of the Polish 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, does not allow for filing to a court a letter that is only bearing an electronic signature of a party. Such letters must bear handwritten signature. This includes a situation of filing documents through public administration body, by means of electronic communication.

E-access to public information, case II SAB/Lu 10/12

June 4th, 2012, Tomasz Rychlicki

The Association of Leaders of Local Civic Groups (SLLGO) requested the Mayor of Opole Lubelskie town to disclose information regarding the fund from the years 2009-2011. The request was sent via e-mail. The Mayor ordered the SLLGO to supplement formal defects of the request and claimed that this form of an electronic document must be signed by the certified electronic signature as referred to in 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 (Dziennik Ustaw) No 64, item 565 as amended, and the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym), published in Journal of Laws (Dziennik Ustaw), No 130, item 1450, with subsequent amendments. SLLGO refused to comply and argued that the provisions 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, allows for requesting the disclosure, even verbally, without any formality. The Mayor decided to leave the request without examination. The decision was based on the provisions of Article 64 § 2 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.

Article 64.
§ 1. The application will not be examined if the applicant’s address is not included in the application and it cannot be identified from the data available.
§ 2. If the application does not fulfil the requirements of law, the applicant shall be summoned to correct the defects within 7 days, with a notice advising that failure to comply will result in the application not being examined.

The Voivodeship Administrative Court in Lublin in its judgment of 20 March 2012 case file II SAB/Lu 10/12 ruled that the Mayor remained inactive and unjustifiably applied the provisions of the APC, therefore, the Court obliged the Mayor to examine the request. The authority that is obliged to disclose public information is not entitled to demand that a request submitted in electronic form has to be signed by any electronic signature. The Court reminded that the intention of the legislature was to unformalize the proceedings for the disclosure of public information, in order to ensure and fulfill the constitutional principle of openness of public life. The API indicates that a request for such information may take any form, and even the person requesting has not to be fully identified.

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

E-proceedings law, case III CZP 9/12

May 30th, 2012, Tomasz Rychlicki

The District Court in Toruń requested the Polish Supreme Court to answer the question whether a party of civil proceedings is allowed to file an appeal in form of electronic document. If the answer would be “yes”, the Court also wanted to know whether the deadline for lodging an appeal is confirmed by the date on which the letter was received by the device receiving the court’s e-mails. The District Court additionally enquired, whether such letters can be signed by electronic signature as defined in 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 Supreme Court in its judgment of 23 May 2012 case file III CZP 9/12 held that filing an appeal by e-mail is acceptable only, if a specific provision allows for such action. Currently, this option is very limited in the Polish law. The printed version of an appeal filed by electronic means may be treated as effective, if it will be signed by the party at the request received from the Court, and the date for submission of such a letter to the court is then the date the printing was done.

E-signature law, case II SAB/Łd 35/12

April 11th, 2012, Tomasz Rychlicki

A Polish citizen filed a complaint to the Voivodeship Administrative Court via e-mail, and signed it with the qualified electronic signature. The Court called him to sign the complaint manually, within 7 days under pain of rejection of the complaint. The applicant argued that he already signed it.

The Voivodeship Administrative Court in Łódź in its order of 13 March 2012 case file II SAB/Łd 35/12 rejected the complaint. The Court held that the complaint must meet two kinds of requirements. First of all, the complaint must meet all the requirements provided for the letter in court proceedings, and also it has to include an indication of the contested decision, order, or any other act or activity, the indication of an authority or body whose action or inaction is a subjetct of the complaint, the explanation of violation of law or legal interest. As each letter, the complaint should therefore be signed by the party or its legal representative or attorney, according to the provisions of Article 46 § 1 point 4 of the Polish Act of 30 August 2002 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. According to the Court, for the effectiveness of the electronically signed letter it has to be signed manually by the party. Therefore, the signature of the applicant’s letter must be submitted in person, i.e, it has to be a manual sign of a specific person to allow for its identification. An exception to the above mentioned rule, is a provision stating that a letter which can not be signed by a party in person, should be signed by a person authorized by the party. Such a person has to explain the reasons why the party itself did not signed the letter. Failure to sign the complaint within the prescribed period of time means that the applicant did not remove its defects in form, which results in rejection of the complaint by the Court. The VAC noted that its view is confirmed by well-established case law of the administrative courts. See the order of the Supreme Administrative Court of 16 November 2011 case file I OZ 831/11, the order of the SAC of 8 September 2011 case file I OZ 657/11, the order of the SAC of 27 May 2011 case file I OZ 368/11.

See also “E-signature law, case II SA/Gd 573/10“, “E-signature law, case I OPP 25/08” and “E-signatures in Poland“.

E-proceedings, case II FZ 447/11

February 23rd, 2012, Tomasz Rychlicki

The Voivodeship Administrative Court in Gdańsk in its order of 23 March 2011 case file I SA/Gd 916/10 rejected a complaint against a decision on leaving the applicant’s request for the relief for the payment of court fees from the complaints, without examination. The complaint was sent by post the day after the deadline, but the day before, the same letter has been sent by e-mail at 10:50 pm to the court. The VAC found the complaint to be void and rejected it. The applicant filed a complaint against such order.

The Supreme Administrative Court in its order of 21 December 2011 case file II FZ 447/11 agreed with the applicant, and repealed the contested judgment and returned it to the VAC for further reconsideration. The SAC issued very precedential opinion. The Court held that despite the legal loopholes it is possible to bring the pleadings via e-mail correspondence with the courts. The court also held that the date of the filing is a real moment of delivery of the e-mail message, which will be communicated to the recipient in the appropriate e-mail program. The Court noted that information about the confirmation of data transmission, which includes the date of delivery, is provided in the header of each e-mail message and it decides on timely filing of the pleadings. The Court stressed that the party to the proceedings before the administrative courts cannot bear the negative consequences of failure to implement the Polish Act on Proceedings Before Administrative Courts of the relevant provisions concerning the submission of documents by electronic means. After that judgment a party can effectively bring to the administrative court every pleading by electronic means, including the complaint or a cassation complaint, despite the lack of a formal legal basis. The only problem is that the document lacks of a formal signature. But there is no obstacle to supplement it after the call issued by the court. If the applicant will send a complaint via e-mail at the last moment, it will be deemed as the effective delivery and filing. It only has to be signed in person after the call from the court in a specified deadline.

E-access to public information, case IV SA/Gl 1002/11

October 14th, 2011, Tomasz Rychlicki

A journalists requested one of the Polish companies to disclose information about the earnings of its directors (CEOs) and members of the supervisory board. He also wanted to know how many prizes, bonuses and other financial inducements were received by the CEO and the board members in the last three years, and how much the company has spent on advertising and promotion, how much spending and subsidies were distributed for non-governmental organizations, staff training, banquets and small meetings. He also demanded the indication of dates, names and amounts, the method of selecting contractors. This request was based on the provisions 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 journalist noted that the expected response should be sent to him via e-mail. The company provided information only on salaries, and refused to disclose other information that was subject to the request. The decision has been sent in the form of an electronic document to an e-mail address provided by a journalist. The company noted that other information belong to the category of “processed information”, therefore, the applicant has to indicate why the disclosure of such information is particularly important for the public interest. The journalist filed a complaint against this decision.

The Voivodeship Administrative Court in Gliwice in its judgment of 19 September 2011 case file IV SA/Gl 1002/11 rejected it, because of procedural reasons. However, the VAC held that the administration decision issued in the form of an electronic document must be signed by a secure electronic signature that is verifiable by a valid qualified certificate. The administrative decision that does not meet these requirements can not be regarded as signed, and therefore is not valid according to the provisions of Article 14 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.

Article 14. Principle of written proceedings
§ 1. All matters shall be disposed of in writing or in the form of an electronic document as defined in the Act of 17 February 2005 on Informatization of Operation of Entities Performing Public Tasks (Journal of Laws No. 64, item 565, as ammended), to be served by means of electronic communication.

The VAC also noted that in this case the decision has not been delivered in the proper form.

Article 110.
The public administration body issuing the decision shall be bound by it from the time of its service or publication, unless the Code provides otherwise.

Although in this case the content of the decision was known but it was not delivered in the form provided in the provisions of the APC. The decision was in fact delivered in writing but it was served by electronic means and in a way that was inconsistent with the provisions of APC, which could not be considered as effective service.

See also “E-signature law, case II SA/Gd 573/10“, “E-signature law, case I OPP 25/08“, “E-signatures in Poland“, and “Polish case law on e-access to public information“.

Tax law, case I SA/Po 486/10

February 11th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in Poznań in its judgment of 22 October 2010 case file I SA/Po 486/10 held that a company that is required to send annual tax information about its employees, is also allowed to send to him or her a tax declaration in the form of electronic message (e-mail), under the condition that such e-mail is signed with the digital signature and the form of the tax declaration is preserved.

See also “E-signatures in Poland“.

E-signature law, case II SA/Gd 573/10

September 11th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Gdańsk in its order of 9 September 2010 case file II SA/Gd 573/10 held that the legal effectiveness of a letter brought by a party to an administrative court by electronic means must be confirmed by its later signature. This is the requirement provided in Article 46 § 1 pt 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, which says that each letter must contain the signature of the party or its representative. This also applies to letters sent by electronic means. This ancient requirement is still in force even if there is 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 (Dziennik Ustaw) No 64, item 565 as amended, and the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym), published in Journal of Laws (Dziennik Ustaw), No 130, item 1450, with subsequent amendments, because both acts did not introduce the electronic administrative proceedings or electronic docketing systems to the Polish procedure.

See also “E-signature law, case I OPP 25/08” and “E-signatures in Poland“.

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“.

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.

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.

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-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-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.