Poland - League of Lawyers

Capital: Warsaw
Largest city: Warsaw
Official Language: Polish
Government: Unitary semi-presidential constitutional republic
Area: 312,696 km2
Population: 38,268,000
Currency: Zloty (PLN)
GDP total: PLN 5.082 trillion (USD1.363 trillion)
GDP per capita: PLN 134,074.66 (USD35,957)
Time zone: UTC +1/UTC +2
Calling code: +48
Internet TLD: .pl

[Source: Wikipedia]

Q&A on Commercial Litigation

What is the court structure applicable to commercial disputes in Poland?
Disputes between private (i.e., non-governmental) parties are heard by the ordinary courts – the district courts (Sąd Rejonowy), regional courts (Sąd Okręgowy), courts of appeal (Sąd Apelacyjny). The supervision of the ordinary courts is exercised by the Supreme Court (Sąd Najwyższy). The first instance is the district court (Sąd Rejonowy) for amounts in dispute up to PLN75,000 (approx. EUR17,000) and the regional court (Sąd Okręgowy) for amounts in excess of PLN75,000.
Who decides questions of law and fact in Polish courts?
The court decides questions of law and fact. Principle of submission applies: the court does not investigate the facts of the case on its own initiative, but in principle only deals with those facts that the parties submit to it. There is no jury in the Polish court system. All civil law cases are usually heard by one professional judge in the first instance and three judges in the second instance. Jurors are present only in certain cases concerning labour and family law.
What is the nature of legal representation in Poland? Do foreign lawyers have a right of audience in the Polish courts?
In most cases, there is no formal requirement for a party to be represented by a professional lawyer. An exception is, for example, proceedings before the Supreme Court (Sąd Najwyższy), where a party must be assisted by a professional representative. However, the Polish civil procedure is very formalistic, so representation by a professional counsel is highly recommended.
The Act on the Activity of Foreign Lawyers in Poland (Ustawa o świadczeniu przez prawników zagranicznych pomocy prawnej w Rzeczypospolitej Polskiej) in Poland allows foreign lawyers from the European Union Member States to provide permanent legal assistance to the same extent and in the same ways as Polish attorneys at law, subject to their entry onto the list of foreign lawyers maintained by each of the Regional Bar Associations.
What types of legal fee arrangements are generally adopted by Polish lawyers? To what extent are legal fees fixed by law?
Lawyers’ fees are charged either in accordance with the acts on lawyers’ remuneration (Rozporządzenie Ministra Sprawiedliwości w sprawie ponoszenia przez Skarb Państwa kosztów nieopłaconej pomocy prawnej udzielonej przez adwokata z urzędu; Rozporządzenie Ministra Sprawiedliwości z dnia 3 października 2016 r. w sprawie ponoszenia przez Skarb Państwa kosztów nieopłaconej pomocy prawnej udzielonej przez radcę prawnego z urzędu) or on the basis of fee agreements. If a lawyer represents their client in court, the agreed fees cannot be less than those laid down by law. Remuneration higher than that prescribed by law may be agreed at any time. The fee level is normally determined by reference to the value of the claim. In each case, the appropriate fee from the prescribed range must be determined, taking into account all the circumstances, in particular the scope and difficulty of the work involved and the importance of the case.
What are the time limits applicable to commercial disputes in Poland ?
There is a three-year period of limitation for bringing an action in cases concerning the commercial business activity. As a rule, Polish Civil Code specifies the general time limit for 6 years for monetary claims, however, there are numerous exceptions.
The court does not take this into account automatically, but only at the request of a party or as a result of a plea being raised, unless it concerns claims by the entrepreneur against the consumer.
Are there any pre-action discovery procedures available to a party who wishes to initiate a claim?
There is no scope to apply for pre-action disclosure under the Polish civil procedure.
What role does mediation play in the litigation process? Is mediation imposed as a prerequisite to a commercial claim or is strongly encouraged by the Polish courts?
Mediation is very much on the rise in the whole of Europe. It is voluntary but can be suggested either by the courts or a party to the dispute. Moreover, the court is obliged to examine whether a case should be subject to mediation before the first session of the case.
Settlement agreements are valid enforcement orders. After approval by the court, they can be enforced in the same way as a judgment. The court may refuse to approve a settlement agreement, if it does not meet certain conditions, for example if it is contradictory or ambiguous.
How is a commercial claim initiated in the Polish courts?
A statement of claim must be drawn up and filed with the competent court. The appropriate fee should be paid. It is required to include any relevant factual circumstances and evidence that substantiate the claims in the statement of claim. Evidence that is submitted by a party at a later stage of the commercial proceedings and which in the opinion of the court could and should have been submitted earlier, will be omitted.
If a party fails to adhere to any of the formal requirements of the statement of claim, the court will summon the party to correct the errors. If the party fails to comply with a court order in one week’s time, the statement of claim is returned by the court, which means that the court will not examine the case at all. Such a statement of claim will have no legal effect. A statement of claim that is duly remedied by a party, shall take effect from the date of its original submission.
If a statement of claim lodged by an attorney of law is not duly paid or has other formal deficiencies, the court will return it without a request for supplementation.
What happens if a defendant fails to respond to a claim?
The court will issue a default judgment if the facts presented by the claimant substantiate his claim. The defendant has 2 weeks to lodge an objection against the default judgment. The default judgment is immediately enforceable.
Are there any summary procedures which can be applied for by the plaintiff or defendant in a commercial claim?
Yes, the summary proceedings (postępowanie uproszczone) is incorporated in polish civil law system.
The amount in dispute in the summary proceeding must not exceed PLN20,000 (approx. EUR4,500). If the claim fulfills this condition, the summary proceedings is obligatory.
What interim reliefs can a party seek to maintain the status quo or prevent further loss or damage pending the final decision of the Court?
The court may issue a security order at the request of a party if he or she has a plausible claim and a legal interest in the provision of security. The interim measures available for monetary claims are: seizure of the asset’s, establishment of a mortgage, prohibition of real property alienation, establishment of receivership over the defendant’s enterprise.
What sort of evidence is required to support a commercial claim? How do the Polish courts evaluate oral and documentary evidence?
The main means of evidence in commercial litigation are documents, whether official or private. A private document is proof that a person who signed it made a statement presented therein.
Other kinds of evidence include an expert’s opinion. The experts are appointed by the court and have to be independent and impartial of the court itself.
Also, witnesses may serve as a source of evidence. However, evidence by witness testimony or examination of the parties against or beyond the body of a document can only be taken with respect to the parties if this does not seek to circumvent the provisions which require that an act in law be evidenced “in writing in order to be valid”, and where the court considers this necessary. In Poland, everyone is legally bound to appear before a court and deliver testimony upon a summons.
An inspection of a place, a thing or even a person can also be ordered. However, in the last situation the consent of the person to be inspected must be obtained.
When will a court consider expert evidence and how are expert opinions treated?
The court may call in an expert of its own motion or on request of a party. Expert opinion serves the purpose of enabling the court to properly assess the trial material in cases where such assessment requires special knowledge. The courts in most cases make decisions in accordance with an expert’s opinion. In the course of proceedings the parties may, however, request supplementation of an opinion or admission of evidence from another expert.
Will parties be able to recover the costs incurred in pursuing a claim in court?
The party losing the case generally bears the costs of the proceedings and shall reimburse to the successful party the costs incurred plus the attorney’s fees. If no party has completely prevailed, the legal costs are usually distributed proportionally according to the outcome of the proceedings. There are three main types of costs: court fee, advance on additional costs, fees for appointing an expert, and the costs of representation by a professional lawyer and his expenses.
How long do commercial claims take to be resolved in the Polish courts?
The duration of proceedings depends on the overall circumstances. According to the report of the Federal Statistical Office Administration of Justice – Civil Courts, it was on average between 4 and 10 months.
How can a successful party enforce a court judgment?
The debtor must be given a deadline for payment. If payment is not made after this deadline, the bailiff is instructed to enforce the order. The bailiff will then usually try to enforce the title by seizure, execution or compulsory auction of the debtor’s property.
Can an unsuccessful party appeal against a court’s decision?
An appeal against the first instance decisions may be lodged within 2 weeks after obtaining the written substantiation of the judgement.
How do Polish approach the choice of governing law in a contract in cross-border litigation?
The court shall examine jurisdiction of its own motion.
Irrespective of the question of which substantive law is applicable, jurisdiction is determined, according to the Brussels I Regulation, as long as the defendant is domiciled in a member state of the EU. The place of jurisdiction and the applicable law can also diverge, but this is costly and time-consuming. The place of jurisdiction can be freely agreed. In principle, the place of jurisdiction is the defendant’s place of business.
Are foreign judgments recognised by the Polish courts?
In Polish law, the principle of automatic recognition of foreign judgments applies, if certain conditions are met. Within the procedure for making the foreign judgment enforceable, it is checked whether the requirements for recognition of the judgment in Poland are met, i.e. whether the judgment is enforceable. Judgments from EU member states are declared enforceable according to the EU Regulation on Jurisdiction and Enforcement of Judgments (EUGVVO) using a simplified procedure. The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters is now intended to standardise the rules on the cross-border enforcement of state judgments and thus increase legal certainty in international economic transactions in the future.
How have the Polish courts responded to the Covid-19 pandemic to ensure that the litigation process remains effective while ensuring the health and safety of those involved in the process?
In order to maintain due process of law while minimising the risk of infection, court activities will continue, with physical contact reduced as much as possible. Public court hearings can still be conducted and attended under hygiene measures as long as no flu-like symptoms are present. However, many of the hearings have been postponed. It is recommended to use written procedures, to participate in hearings via video and audio transmission and to hear witnesses. The choice of implementing specific measures depends on the court concerned.

ABOUT THE AUTHORS

Dr. jur. Jan Muszyński
Attorney at law in Poland, Von Zanthier & Schulz

Jan Muszyński graduated from the Adam Mickiewicz University in Poznań with a degree in law in 2012. After graduation, as a scholarship holder of the Konrad Adenauer Foundation, he received a doctoral degree in law at the University of Bayreuth. His doctoral thesis was published by the prestigious Berlin publishing house Duncker & Humblot. He has been working with the law firm VON ZANTHIER & SCHULZ since 2019, specializing in providing ongoing advice to entrepreneurs especially in the areas of labor law, corporate law, including M&A transactions and business law.

Paulina Czaja
Trainee attorney at law in Poland, Von Zanthier & Schulz

Paulina Czaja studied law at the Adam Mickiewicz University in Poznań. In 2019 she graduated German law studies at the Georg-August University in Göttingen, obtaining the Master of Laws degree (LL.M.). During her law studies Paulina Czaja gained professional experience working for Polish and German law firms specializing in legal advisory in corporate law.
She cooperates with VON ZANTHIER & SCHULZ since February 2020. In January 2021 Paulina Czaja is beginning her legal traineeship at the Regional Bar Association in Poznań.

ABOUT THE FIRM

Name: Von Zanthier & Schulz
Address: Von Zanthier & Dachowski Kancelaria Prawnicze sp. K.ul. Garabry 56, PL 61-758 Poznan
Telephone: 0048 61 85 82 550
Email: poznan@vonzanthier.pl
Website address: www.vonzanthier.com
Key contact: Dr. jur. Jan Muszyński, Lawyer, muszynski@vonzanthier.pl
Established: 1995
Number of lawyers:
Languages: German, English, Polish

Brief description:
We are an interprofessionally organised law firm of solicitors, auditors and tax consultants with offices in Berlin, Poznań and Warsaw. We offer consultancy services in Germany in the field of German business and tax law and can assess your economic situation. Since 1992, we have been dealing with international matters and guiding you in national and cross-border law. In Poland, we can support you with Polish business and tax law.

Key practice areas:
Commercial law, Corporate law, Real Estate law, IT law, Labor law, Law on Renewable Energy, Medicine law, Tax law and Bookkeeping