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Archive for: Art. 58 PBAC

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“.

Copyright law, case I OSK 678/11

November 3rd, 2011, Tomasz Rychlicki

This is the continuation of the story described in “Copyright law, case II SAB/Łd 53/10“. The Supreme Administrative Court in its judgment of 21 July 2011 case file I OSK 678/11 ruled that copyrighted works in the form of test questions, if they are used for the state exam, become official documents, and the unused questions, which are the so-called “pool of questions” are deemed as documentary material for the purposes of Article 4(2) of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments.

Art. 4. The following shall not be protected by copyright:
(1) normative texts and the drafts thereof,
(2) official documents, documentary material, devices and symbols,
(3) descriptions of patents and other protection titles,
(4) mere news items.

The court emphasized that different types of materials that are in the possession of the public bodies are not public information, because their content (intellectual property content) is not used or was not used in dealing with any of the public cases, and thus such material did not acquire the characteristics of official documents. Therefore, the argument raised in the cassation complaint that a particular set of questions or a single question from the pool of questions, that was not used in the state exam should be disclosed, was completely groundless.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

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.

Trade mark law, case VI SA/Wa 370/10

July 21st, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in its order 17 June 2010 case file VI SA/Wa 370/10 held that if the party did not act properly within a given period of time in court proceedings without its fault, the court may decide on the request, on the restoration of a deadline. The request for restoration shall be filed within the Court, in which the act was to be made within seven days from the time as the cause of transgression ceased. The request for restoration of a deadline to file a complaint must be filed through the court or authority. The restoration of a deadline has unique nature and can only occur if the party convincingly proves of the absence of its guilt. The lack of guilt means a situation in which circumstances that were impossible to overcome and that were independent from the party, have occurred , and these were the reasons that the deadline set by the law was exceeded (see the order of the Supreme Administrative Court of 11 April 2008 case file I OZ 246/08).

In assessing the occurrence of this condition, the Court has to adopt an objective “test of care”, which may be required from everyone duly taking care of its interests. The restoration is therefore not admissible if the party is guilty of even slight negligence. If the party is represented by a professional representative, while assessing the guilt of not preserving a deadline, the representative acts should be considered, adopting an objective test of care, which may be required from a professional legal representative duly caring for the interests of its client, with the reservation that negligence of people, whom such representative employs, burden the representative itself, and therefore do not release the party from the guilt in non-reserving a deadline.

This means that the negligence made by administrative staff in activities necessary to preserve the procedural deadline, which was commissioned by a patent attorney who is a representative of a party, does not justify the restoration of a missed deadline.

Terravita Holding Establishment from Vaduz, Lichtenstein was a party who lost this case. See also “Trade mark law, case VI SA/Wa 370/10“.

Trade mark law, case VI SA/Wa 370/10

May 21st, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in its order 14 April 2010 case file VI SA/Wa 370/10 held that the complaint to the Administrative Court must be filed through the authority, whose action or inactivity is the subject of the complaint within thirty days from the date of notification to the applicant of the decision. The principle filing a complaint through a public authority means that in case of complaint filed directly to the administrative court or through a public authority other than the one whose action or inactivity is the subject of the complaint, the court or authority should pass it on to the competent authority of public administration. The date when the complaint was passed on by the court (public body) decide on the preservation of the deadline for bringing an action. If the complaint is brought after the deadline to file it, it shall be rejected. Terravita Holding Establishment from Vaduz, Lichtenstein was a party who lost this case. See also “Trade mark law, case VI SA/Wa 370/10“.

Trade mark law, case VI SA/Wa 1180/07

December 13th, 2007, Tomasz Rychlicki

The Voivodeship Administrative Court in its judgment of 5 November 2007 case file VI SA/Wa 1180/07 decided the case for the invalidation of the right of protection for the trade mark PANORAMA TURYSTYKI R-145420. The issue of the discontinuance of the proceedings appeared during the hearing before the Polish Patent Office. The PPO decided to stay the proceedings until the civil court decide on the authorship of the trade mark. One of the parties filed a complaint against this decision. The Court ruled that the decision on the matter of who has the copyright to the sign in question is a preliminary issue within the meaning of Article 97 § 1 pt 4 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 97. Compulsory stay
§ 1. A public administration authority shall order a stay of the proceedings:
1) in case of the death of one of the parties if it is impossible to summon heirs of the deceased party to participate in the proceedings, and if no circumstances described in Article 30.5 occurred, and if the proceedings may not be discontinued as groundless (Article 105),
2) in case of death of the statutory representative of a party,
3) in case a party or his statutory representative loses the capacity to enter into legal transaction,
4) if deciding the matter and issuance of the decision is conditioned upon a previous resolution of a preliminary issue by another authority or court.

§ 2. If the grounds for stay have ceased to exist, the public administration authority shall ex officioor upon demand of a party lift the stay of the proceedings.

The Court held that the PPO was allowed to summon the party to apply for the civil proceedings and to order a stay of proceedings in one order. Such order is not subject to the appeal. It can be only challenged in the complaint against the decision that also contains the conclusions of preliminary issue.