Following several months of the provisions being in force—which came into effect on 3 July 2021 pursuant to the Act of 2 March 2020 on special measures relating to the prevention, counteraction and combating of COVID-19, other infectious diseases and the crisis situations caused by them (Journal of Laws 2020, item 1842, as amended) concerning the service of court correspondence via the Information Portal, it can be concluded that the initial concerns regarding the correctness of the service of correspondence have been partially confirmed.
The subject of this article is an attempt to answer the question of what a professional legal representative should do in a situation where the new system has failed and, for some reason, there has been no ACTUAL service of court correspondence, even though, in the light of the literal wording of the regulations, it may be deemed to have been effectively served.
The reasons for the lack of actual service of correspondence may vary, such as a failure to grant access to the case, the uncontrolled disappearance of the case from the representative’s ‘case list’, as well as other technical issues related to the functioning of the Information Portal.
An attempt to answer the question posed is warranted, as if the Court were to deem the correspondence to have been effectively served (in the absence of actual service) – in the interests of the represented client – it would be reasonable to take steps to protect their procedural rights.
However, what can one rely on, given that we are dealing – on the one hand – with an obviously flawed mechanism for the service of correspondence, but on the other hand with a statutory provision that unambiguously defines the effect of service regardless of the actual receipt of the correspondence, or even the possibility of receiving it?
In the author’s view, it is justified in such a situation to rely not only on typical procedural objections, among which one may cite, depending on the facts of the case, a breach of Article 233 § 1 of the Code of Civil Procedure, Article 15zz9(2) of the Act of 2 March 2020 on special measures related to the prevention, counteraction and combating of COVID-19, other infectious diseases and crisis situations caused by them (Journal of Laws 2020, item 1842, as amended) and others justified by the facts of the case.
It is also reasonable and necessary to refer to the provisions of European law, namely the provisions of Regulation (EU) 2016/674 of the European Parliament and of the Council of 27 April 2016.
It is widely noted that the application of the provisions on the service of documents via an information portal (Article 15zs9(2) of the Act of 2 March 2020 on special measures related to the prevention, counteraction and combating of COVID-19, other infectious diseases and crisis situations caused by them), given current technical solutions, will entail the disclosure of personal data of internal users (judges, registry staff) – and will thus constitute a breach of Article 5(1)(a), (b), (c) and (f) of Regulation (EU) 2016/674 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, and having regard to the content of the ECJ judgment of 17 December 1970, Case – 11/70 Internationale Handelsgesellschaft GmbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel and the judgment of the ECJ of 15 July 1964 in Case 6/64 Flaminio Costa v ENEL (the primacy of EU law over national law and the principle that national courts must set aside provisions of national law that conflict with EU law).
The position of the ordinary courts regarding the conflict between Polish law and EU law in the aforementioned area must be regarded as highly significant and growing in importance, and the consequence of this situation is the legal challenge to the validity of service effected via the Information Portal due to the conflict of the relevant provisions with higher-ranking law.
*The content of this article reflects solely the author’s views. The author accepts no responsibility for the factual content herein or for the manner in which the information contained therein is used.
Frequently asked questions
What should be done if court correspondence has been deemed delivered in the Information Portal, even though I did not have actual access to it?
In such a situation, steps should be taken to protect the client’s procedural rights, as recognizing delivery as effective without actually reviewing the content of the document may be disadvantageous. It is advisable to invoke typical procedural objections and European law provisions to challenge the effectiveness of such delivery. Reference should also be made to violations resulting from deficiencies in the delivery mechanism.
What causes may result in the lack of actual delivery of correspondence through the Information Portal?
These causes may be varied and include technical problems related to the system’s functioning. Examples include failure to grant access to a case or uncontrolled disappearance of a case from the attorney’s case list. Other causes include general failures or errors in the Information Portal’s operation.
What legal grounds can be relied upon in case correspondence is deemed delivered despite lack of actual access?
One may invoke typical procedural objections, including violation of Article 233 § 1 of the Code of Civil Procedure (k.p.c.) and specific statutory regulations concerning electronic delivery. An important element is also reference to European law provisions, particularly the GDPR Regulation, which may indicate violation of personal data protection in the delivery process.
Can inconsistency of national provisions with EU law result in challenging the effectiveness of electronic delivery?
Some courts allow such an argument, but this is not an established position, and the effectiveness of such defense depends on the circumstances of the case. It is indicated that the application of electronic delivery provisions may lead to disclosure of personal data of internal users, which is sometimes raised as a violation of data protection regulations. This argument aims to challenge the effectiveness of delivery due to inconsistency with higher-order law, however its success is not certain.
A dispute or proceedings on the horizon?
That is where most conversations with a lawyer begin. A consultation is paid, PLN 600 net. You pay for a real opinion: whether you have a legal problem, what you can do about it and roughly what it costs. It ties you to nothing further, and you do not need to know the law, that part is on us.
- 1 Talk
You tell us what is going on, in your own words.
- 2 What next
We tell you your options and what it costs.
- 3 We act
You give the go-ahead and the matter is ours.
HWW Hewelt Wojnowski Lindner i Wspólnicy is a Warsaw law firm advising businesses and public entities. We combine experience in commercial law, energy, tax, data protection and litigation to deliver solutions tailored to our clients’ business realities.
About the firm →
