In search for a remedy to facilitate the work of a judge: “electronic” judicial opinion

The ability to issue an electronic judicial opinion was introduced to the Polish legal order by an amendment to the Code of Civil Proceedings (herein: CCP) – of 29 August 2014, which has been binding since 27 October 2014. The new way of providing grounds for judicial decisions was created by two articles: Article 328 § 1¹and Article 331 § 2 CCP. According to the first of them, if the court’s session is recorded using electronic means, the judicial opinion can be delivered after announcing the verdict, and recorded along with the other elements of proceedings in the courtroom. In that case, the judge is no longer obliged to give brief oral reasons for his or her decision (which would be required if the traditional written motives were to be produced as the “main” opinion). Due to the second provision, if the e-motives have been produced, the parties obtain the judgment along with the transcript of the opinion – which is considered to be legally equal to the delivery of the written justification in the traditional model of giving the judicial opinion.

Posted on 26/01/2016 by Iwona Rzucidło-Grochowska in Civil Procedure, General Issues

A preliminary question from the Polish Supreme Court to the CJEU (case C-367/15)

The Civil Chamber of the Supreme Court of Poland referred its second preliminary question to the CJEU (following a previous one reported previously on Polish Private Law). This time it addressed issues of intellectual property protection, against the background of the 2004/48/EC directive of 29 April 2004 on the enforcement of intellectual property rights. The Court confronted this act with the domestic remedies in the case of copyright infringements, concluding that the possibility to award damages without ascertaining the real amount of loss, as set forth in the Polish regulation, is not compliant with the EU rules, excluding penal measures in these terms.

Posted on 29/09/2015 by Mateusz Grochowski in General Issues, IP Law

A preliminary question from the Polish Supreme Court to the CJEU (case C-70/15)

In its ruling of 27 November 2014 (case number: V CSK 487/13), the Supreme Court (Civil Chamber) asked a preliminary question to the CJEU. This is worth mentioning, as the decision in question is not only the first case of the Supreme Court revoking the preliminary procedure in civil matters, but also the first one in its jurisprudence at all. The question concerns two issues of the European civil procedure regulation.

Posted on 22/06/2015 by Mateusz Grochowski in Civil Procedure

Freedom of religion vs. airport security checks

The Court adjudicated the cassation claim of the claimant, challenging the judgment of the Court of Appeals in Warsaw rejecting the claim of the claimant – a Sikh – alleging the infringement of his personal rights. During the security check, he demanded to be able to take off his turban in a secluded place without the presence of other guards, but this was refused by the officials in charge. Upon this ground he asserted the encroachment of his freedom of conscience and religion – and hence, an infringement of Articles 23 and 24 of the Civil Code of Poland (specifying the concept of personal rights and remedies in the case of their violation).

Posted on 30/05/2015 by Joanna Buchalska in General Issues

Jurisdictional immunity of the state in cases involving serious human rights abuses

In a decision of 29 October 2010 (IV CSK 465/09), the Polish Supreme Court examined the case of Wincjusz Natoniewski, a survivor of the Second World War, who instituted civil proceedings against the Federal Republic of Germany claiming compensation for injuries he suffered as a consequence of acts perpetrated by German armed forces in 1944. This case is one of many in which survivors of large-scale armed operations against civilians and other barbaric acts seek compensation from the state. Such cases involving serious human rights violations call into question the issue of a state’s entitlement to immunity.

Posted on 13/02/2015 by Agnieszka Gołąb in Civil Procedure

Law Applicable to Actio Pauliana before Polish Supreme Court Judgment of the Supreme Court – Civil Chamber of 29 November 2012, Docket No. II CSK 96/12

The dispute arose from a settlement agreement concluded before the German court on 18 November 2008, between the German national Richard L. (claimant) and Polish national Katarzyna D. (defendant), both domiciled in Germany. The defendant agreed she would transfer to the claimant her immovable property situated in Poland in exchange for €40,000. The settlement agreement had been declared enforceable in Poland yet the defendant did not perform her obligation and instead, she concluded a deed of gift with her father, Henryk D. domiciled in Poland (third-party defendant), concerning the same real property. Consequently, the claimant sought to declare the deed of gift ineffective in respect to him pursuant to Article 527 of the Polish Civil Code which establishes the basis for actio pauliana. Being unsuccessful in lower courts, claimant filed a cassation appeal with the Supreme Court.

Posted on 19/01/2015 by Michał König in International

Is the sacrament anointing the sick without authorisation an infringement of the personal good?

In a judgment of 20 September 2013, II CSK 1/13, the Supreme Court addressed the problem of granting the sacrament of anointing the sick to a non-believer. The claimant was a patient at the Independent Public Clinical Hospital in the Cardiac Surgery Clinic. After the operation he was placed into a pharmacologically induced coma. Remaining in this state, he was granted the sacrament in question by a priest who was a chaplain contracted by the Hospital. The claimant learned about it while checking the medical documentation after leaving the hospital.

Posted on 20/11/2014 by Joanna Buchalska in General Issues

Representation of a foreign company acting through its branch in Poland

The Polish legal system allows foreign companies to conduct their business activity in Poland both directly (to a limited extent), as well as through a branch (oddział) and representative office (przedstawicielstwo). A branch is considered to be an organisational structure (without its own legal capacity or personality) providing a framework for doing business in the full range for that company, whereas a representative office can only carry out advertising and promotional activities.

Posted on 26/08/2014 by Mateusz Grochowski in Company Law

Reopening civil proceedings as a result of a judgment of the European Court of Human Rights

The Polish Code of Civil Procedure does not provide for the effects of judgments of the European Court of Human Rights (ECHR) on pending or final cases examined by Polish courts. Therefore, the question whether a judgment of the ECHR stating an infringement of Article 6 sec. 1 of the European Convention on Human Rights should lead to the reopening of civil proceedings is a contentious and hotly debated topic in Polish legal literature. This issue has also been addressed by the Polish Supreme Court on several occasions, most notably by a panel of seven judges in a judgment of 30 November 2010, III CZP 16/10.

Posted on 10/08/2014 by Agnieszka Gołąb in Civil Procedure

Rights to a bus and the beginning of the end of formalised copyright transfer

Copyright transfer, as regulated in Articles 41-68 of the Polish Act on Copyrights and Related Rights of 9 February 1994 (Polish Journal of Laws 2006.90.631 – hereinafter referred to as “Copyright Act”) is extremely strict and formalised. Current regulations are designed to protect the creator against business and the media industry, which are considered as the stronger party in copyright transfer relations. Any transfer must have specified fields of exploitation or will be declared invalid. Moreover, any inaccuracies have to be resolved in favour of the creator.

There is also an obligation to use a specific expression of intent to transfer copyrights. If not, according to Article 65 of the Copyright Act, there is a presumption that a given agreement is actually a licence agreement signed for a defined period of five years. So far, Polish jurisprudence has maintained that these regulations are unconditional, though a recent Supreme Court judgment of from 15 November 2012 (V CSK 545/11) stated that in some circumstances the strict rules of copyright transfer can be alleviated. Read more

Posted on 18/05/2014 by Jan Wosiura in IP Law

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