JUSTICE - No. 67

22 No. 67 JUSTICE n August 11, 2021, the Sejm (the lower house of the Polish parliament) adopted by an overwhelming majority an amendment to Article 156 of the Code of Administrative Procedure regarding the annulment of administrative decisions. Andzej Duda, the President of Poland, signed the act, which entered into force on September 16, 2021. This law changed the entire legal landscape regarding the ability to recover restitution or compensation for real property expropriated during the Communist regime. This seemingly innocuous amendment will lead to the closing of many reprivatization cases that have been pending for many years. In addition, it does not allow the filing of new cases. It is no longer possible to initiate proceedings with the intention to declare an administrative decision invalid if 30 years have passed since the date it was delivered or published. Note that the nationalization decisions by the Communist-regime’s administrative bodies were issued well over 30 years ago. The amendment thus legalizes wrongful decisions with respect to recovering property taken by the state treasury. Furthermore, it will also no longer be possible to apply for any compensation from the state. Moreover, the amendment terminates (cancels by operation of law) pending administrative proceedings for the annulment of a decision initiated 30 years after the date of delivery, or publication of the decision, which was not completed by the issuing of a final decision or order before the date of entry in force of the amendment. This is the case even though a time limit such as this did not apply at the time when these proceedings were initiated, often many years ago. Consequently, this amendment leads to the termination of pending cases, even those that have been ongoing for many years. The amendment affects all those who have reason to demand the annulment of administrative authorities’ decisions. Therefore, the amendment concerns heirs of pre-World War II owners of real estates and enterprises who were subsequently deprived of ownership of their property by administrative decisions of Communist authorities. The amendment also affects a significant number of direct heirs of Holocaust victims. A proceeding for the annulment of a decision was one of the few ways that heirs of pre-war owners of properties could claim ownership or at least fair compensation. In fact, some Polish politicians argued that this so called “court reprivatization,” that is, claims that could be brought by individuals before the court system, undermined the need to enact a comprehensive restitution solution. Poland is the only post-Communist country in the central European region that has not enacted a restitution bill that would have tackled the nationalization problem in a systematic and comprehensive way. The Situation Prior to the Amendment Until the amendment entered into force, Polish law allowed claimants an indefinite period of time to file for annulment of administrative decisions. The claimant had to argue that the decision was issued without legal basis or by a gross violation of law; that the decision was permanently unenforceable on the day of its issuance; and that if carried out, the decision would result in a criminal offense. Reprivatization cases quite often fulfilled those requirements, and thus it was a way to claim back the ownership of the property unlawfully taken by the government. Additionally, there exists a different type of cases concerning particular faults of the decisions, that is, when the administrative decision was issued in violation of the rules of jurisdiction; when it concerned a case already resolved previously by another final decision; when the decision was addressed to a person who was not a party to the case; and when the decision contained a defect which rendered it void. In these cases, annulment was not possible if ten years had elapsed from the date of its having been made public. In such a situation, however, it was still possible to obtain a decision that declared its issuance in violation of the law and that would open the way to seek damages or compensation. In all cases, however, annulment of the faulty decision was not possible if the decision had irreversible legal effects. An example of this is real estate that was legally sold on the open market to private sector entities. Still, even in such situations, there had always remained the possibility of seeking appropriate compensation in court by obtaining confirmation that the decision had been The New Polish Administrative Procedure Law O SylwiaMyśliwska

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