There have been re-introduced proceedings in commercial cases to the Polish civil procedure which may be particularly of importance to cases with cross border element.
The great amendment of the Polish Code of Civil Procedure means, among other things, a return to a separately regulated commercial procedure. The legislator’s assumption is simple – greater rigor for the parties and faster verdicts, which are to adapt the court procedure to the realities of the market of professional entities conducting business activity.
The provisions regulating commercial proceedings should be applied in litigation commercial cases. Regulations concerning other separate proceedings should be applied only if they are not inconsistent with commercial proceedings. The exceptions are the European order for payment procedure, the European Small Claims Procedure and the electronic order for payment procedure.
Commercial cases are as follows:
– based on civil relations between entrepreneurs in the field of their business activity, even if the activity has already ceased;
– based on the relationship of the company;
– against entrepreneurs in respect of:
– against persons responsible for the entrepreneur’s debt
– based on contracts;
– in the field of bankruptcy and restructuring law
– in respect of issuing an enforcement clause or for revoking an enforcement order from a commercial court.
Obligation to indicate e-mail address and the instructions:
New procedure requires parties to include an e-mail address in their pleadings. The address by the claimant and the defendant is respectively included in the statement of claim and response to the claim. If the parties do not have such an address, they must make a specific statement. The defendant is instructed to comply with this requirement after a copy of the claim is provided to it. The e-mail address is an additional formal requirement of a pleading(Articles 126 and 187 of the CCP), and its absence prevents the pleading from taking effect.
Instructing a party without a professional representative
Article 4584 of the Code of Civil Procedure stipulates that individuals should be instructed by the court on the special requirements of the proceedings The same applies to parties to the proceedings who are engaged in sole proprietorships. This is a departure from the old requirements of absolute professionalism in business proceedings.
A natural person or an entrepreneur who is a natural person, may, within one week from the service of the instructions of Article 4584, file a motion to hear the case excluding the rules of commercial procedure. The request is binding on the court. The legislator has recognized that the above-mentioned entities have less expertise in handling commercial cases than parties that are non-individual entrepreneurs. It also applies to cases listed in Article 4582 as business cases, but in which the parties may not only be entrepreneurs – leasing, construction works. Failure to give instructions when they were required is treated as depriving a party of the opportunity to defend his rights, unless the failure to give instructions had no effect on the conduct of that party during the proceedings(Article 4584 §4). This impacts the appeal proceedings – Article 379 section 5 of CCP considers deprivation of defence as a premise for the invalidity of the proceedings. The court takes the invalidity of the proceedings ex officio within the limits of the appeal.
The reintroduction of time constraints for the presentation of evidence claims is a display of the primacy of procedure efficiency. The parties should present their evidence in their initial pleadings. The one-week deadline may be modified by the presiding judge. The evidence claims submitted in a different form or later than required by the new provisions in question will result in disregarding these claims. The legislator has applied a safety gate by allowing new claims to be invoked if a party proves that they could not have been invoked earlier or the need to invoke them arose later. Article 45811 of the CCP orders the parties to present evidence established by document first. In particular, documents should relate to a statement of will or knowledge with which the law links the acquisition, loss or change of a party’s entitlement within the legal relationship in question.
Evidence of witness testimony is admitted only as a last resort if, after exhausting other means of evidence or in the absence thereof, facts relevant to the resolution of the case remain unexplained.
A novelty with respect to previous regulations of separate commercial proceedings is the evidence agreement. According to Article 4589 of the Civil Procedure Code, the parties may enter into an agreement to exclude certain evidence in the proceedings. However, such an agreement can only be made if the legal relationship is contractual. An evidentiary agreement is excluded when the basis of the claim is a tort. Once the contract is concluded, the court, of its own motion, cannot admit the excluded evidence. The exception is when the contract is concluded in the course of the proceedings, in which case the evidence conducted before the conclusion of the contract will be valid. The law stipulates that the contract cannot be concluded under a condition or term, this will result in its invalidity. It must be concluded in writing under penalty of nullity, or orally before the court. It should be noted that the evidentiary contract may be in the form of a clause in the contract, forming the basis of the legal action. The provisions of the Civil Code on the written form of legal actions apply here, and not the provisions of the CCP on pleadings.
According to the new provisions, as a rule, the claim cannot be amended (extended) during the course of the proceedings. The exception is when there has been a change in circumstances, in which case the claimant may change the claim in place of the original subject matter of the dispute, its equivalent, another subject matter, and in the case of periodic benefits, expand the claim for benefits for subsequent periods.
Case transfer to another proper court
In order to render the actions of the court more efficient, Article 4587 of the CCP provides for the possibility of the commercial court to transfer the case to the competent court if it determines that the case is not a commercial case. In practice, this is done within a single court, meaning that the commercial division of the court transfers the case to a competent division. The time limit for transferring the case is one month, counting from the day the defendant enters a dispute on the merits of the case, in practice from the day the first pleading is received by the court. Far less often, the deadline will be counted from the defendant’s presentation of his position at the hearing.
Ordering court costs
The regulation of Article 45812 is basically a return to the pre-2012 status quo – the former Articles 47912 and 47914. Out-of-court dispute resolution methods are economically beneficial to the parties and the courts. Sabotaging or avoiding amicable proceedings
is detrimental to the speed of the proceedings. In such a case, even the winning party may be charged with litigation costs in full or in part. The concept of voluntary dispute resolution is not specified. It includes all, legally permitted methods of dispute resolution.
By the reference in Article 45811 §3, the judgment of the court of first instance awarding
a payment in money or fungible things from the moment of issuance constitutes a security title (Article 492 §1 and §2 of the CCP). The possibility of more efficient settlement of claims covered by the judgment in a business case justifies giving this judgment the value of a security title even before it becomes final and binding.