Publication date: January 11, 2024

Amendment to the Polish Code of Civil Procedure: changes in the scope of enforcement proceedings

Introduction, basic objectives of the Amendment

The Act of 9 March 2023 changed a significant part of the provisions of the Polish Code of Civil Procedure (Act of 17 November 1964). A large part of the changes covered enforcement proceedings, i.e. a separate (from, inter alia, examination and auxiliary) type of civil court proceedings.

According to the reasons for the Draft Amending Act (Print No. 2650), the new legal changes were primarily aimed at simplifying the applicable procedures, reducing the workload of the courts and shortening the duration of proceedings. In the field of enforcement proceedings, one of the specific objectives was to specify the rules regarding the so-called bailiff services.

Changes regarding interpretation doubts

Article 758¹

The newly introduced provision provides for the non-application of Art. 44², if a party to or participant in enforcement proceedings is the court competent to take the action. The aforementioned article requires that the case be referred to an equivalent court if the court that hears it is at the same time the representative of the State Treasury in the case. Despite the intended dispelling of doubts as to the interpretation, voices appeared in the doctrine pointing to the still existing uncertainty as to the application of the provision, e.g. due to the use of the phrase “if a court is a party or participant in the proceedings”, instead of, as in Art. 44² “The State Treasury represented by the court” (M. Dziurda, “Code of Civil Procedure. A practical commentary to the Amendment of 2023”).

Art. 759² para. 2 – modification

It was clarified that Art. 139¹ does not apply not only (as before the Amendment) to the bailiff’s service, but it does not apply to all “letters sent by the bailiff in enforcement proceedings”. Art. 139¹, specifying the rules for serving pleadings by a bailiff, has also been amended.

Article 770 para. 3 – modification

The provision on determining the division plan of the sum obtained from enforcement currently provides for an exception: the bailiff still determines the costs of enforcement, except for the division plan, to which there is applied Art. 1029 of the Polish Code of Civil Procedure (a division plan for the sum from remuneration for work), and when the sum of the amounts to be divided obtained in enforcement does not exceed PLN 2,000. According to the drafters, each settlement of relatively small amounts is an unnecessary burden, prolonging the proceedings.

Service of process

Art. 759² – addition of paragraph 3

The legislator allowed for the optional service of copies of letters via the Electronic Platform of Public Administration Services (ePUAP) at the request of a party, without additional authentication. If the addressee does not collect the letter, it is considered served after 14 days from the date of sending the letter via ePUAP.

Art. 766¹ para.1 – modification

The new wording of the provision clarified that the court not only ex officio justifies, but also services together with the statement of reasons the decision issued in closed session. This settles the doubts existing in the previous legal status as to whether, in accordance with the provision, the court serves ex officio a decision drawn up ex officio, or whether the service is effected at the request of a party (currently: also ex officio). This means, in accordance with Art. 357 paragraphs 2-4 of the Polish Code of Civil Procedure (this paragraph was also added in this Amendment) that a party does not have to submit a request for service of a decision with statement of reasons.

Article 767 para. 3² – modification

According to the previous legal status, it was, as a rule, the bailiff’s duty to service the official complaint form to the debtor and the parties or participants at the first enforcement action. De lege lata, the bailiff only instructs you about the possibility of lodging such a complaint. Optional service of the form, at the request of a party or participant, is possible only if they have not been served with this form – it is about taking into account the situation of people without access to the Internet. One of the reasons for the change is the wide availability of forms on the websites of, for example, the Ministry of Justice.

Art. 139¹ and Art. 139²; article 511^1a

Art. 139¹ para. 1, specifying that bailiff services concern natural persons, and also that they apply not only to lawsuits, pleadings, but also judgments “causing the need to defend rights”. Added para. 1¹ : bailiff service is not applied “if, despite the addressee’s failure to collect the correspondence, the validity of the defendant’s address indicated in the lawsuit raises no doubts”. A new paragraph 3 has been added, which states that correspondence sent in accordance with Art. 139 para. 1 will be seen as served, if the claimant shows evidence in writing that the defendant resides at the address indicated in the claim; if the bailiff later serves the correspondence to the same address, this will not cause the statutory time periods to start running again.

In turn, the newly introduced Art. 139² provides for the court to order service by bailiff ex officio: this is the case under Art. 139¹ para. 1, if the claimant lives or has its registered office abroad (and is not represented by a barrister, solicitor, patent attorney). Another new provision, Art. 511^1a  requires the application of the (amended) Art. 139¹  in non-contentious proceedings, if the participant in the proceedings does not collect the letter (pleading) and the bailiff’s service is deemed necessary by the chairman.

Complaints against decisions in enforcement proceedings

Art. 767⁴ para. 1¹ , para. 1³ and para. 1⁴

To Art. 767⁴ compared to the previous legal status, two additional pieces of information have been added: from now on, a complaint against a court decision is examined by the court that issued the challenged decision, in a panel of three judges, but – it adjudicates as a court of second instance (the complaint, however, remains horizontal) and Art. 394^1a para. 3 of the Polish Code of Civil Procedure is to be applied. The provision mentioned at the end of the sentence has also been amended: a second sentence has been added, which stipulates that the court of second instance does not examine the circumstances of the inability to form a bench to hear the complaint.

On the other hand, the newly introduced paragraph 1-3 makesit possible for the court examining the complaint to transfer it to the court of second instance, if it is justified by the importance of the judgment or its precedent-setting nature. In the absence of grounds for recognition, the court of second instance will return the complaint for consideration. According to para. 14, thecourt of second instance recognizes the complaint composed of one judge.

Art. 767⁴ para. 1²

This provision introduces a devolutive complaint in enforcement proceedings. This will be the nature of complaints against decisions: the subject of which are actions in cases under Art. 759 para. 11 points 4-6, issued as a result of the examination of defences against the division plan of the sum obtained from the execution of real estate, issued pursuant to Art. 1037 para. 1 of the Polish Code of Civil Procedure. In such cases the court of second instance will consider the complaint in a panel of one judge (767 ⁴ para. 1⁴ of the Polish Code of Civil Procedure).

Enforcement actions

Article 797 para. 1 – modification: adding sentence 3.

The legislator added the sentence: “The provision of Art. 130 ^1a para. 1 does not apply.”. This means that the bailiff is no longer obliged to return the application to commence the enforcement filed by a barrister, solicitor, patent attorney or the General Prosecutor’s Office of the Republic of Poland, if the application does not meet the formal conditions. According to the intention of the legislator, such an obligation would interfere with the nature of the enforcement proceedings and lead to the complication of the proceedings. At the same time, according to some voices raised in the doctrine, the pain of return under Art. 130^1a para. 1 of the Polish Code of Civil Procedure still applies to other letters submitted by professional attorneys.

Article 800¹

The newly added provision provides for situations in which the enforcement authority must refuse to initiate enforcement: when a special provision so provides, when circumstances from Art. 199 para. 1 of the Polish Code of Civil Procedure (justifying the rejection of the claim; according to the doctrine, the provision lacks the wording about “proper” application) occur or when the application is inadmissible for other reasons. As a result of the refusal, the authority will refrain from further activities, and the application to commence will have no effect.

Article 801 para. 4 – modification

De lege lata, hearing the creditor before discontinuation of the proceedings by the bailiff is optional, and not, as under the previous legal status, obligatory.

Article 804³

Another new regulation provides grounds for the negative application of Art. 804¹ and 804², i.e. simplified commencement of enforcement. They do not apply if the submitted documents show that the transfer of the right: is conditional (exception: a special case of a condition precedent) or has been made to an entity residing or having its registered office outside the territory of the Republic of Poland.

Article 804 para. 2 – modification (related to the change of Art. 782¹ para. 1 point 2)

The article provides that the enforcement authority is not obliged to summon the application to complement the deficiencies if the creditor has not submitted a document indicating the expiry of the limitation period for the claim. In addition, it was noted – similarly in the amended Art. 782¹ para. 1 point 2, limiting the court’s examination of the statute of limitation when examining an application for an enforcement clause – that the court does not examine the statute of limitation for interest payable after the creation of the enforcement title.

Suspension of enforcement proceedings

Article 818¹

The new regulation in the first paragraph states that deficiencies in the composition of the governing bodies of the organizational unit being the debtor do not constitute grounds for suspending enforcement proceedings. Pursuant to the following paragraphs of the article, the bailiff submits information about deficiencies to the court, which will appoint a probation officer – if it is necessary to protect the debtor’s interests and the debtor’s assets are sufficient to cover the costs; then the bailiff will refrain from activities until a decision on the appointment of a probation officer is issued. The costs of appointing a probation officer are charged to the debtor. Effective against the debtor will be the service of the letter to the probation officer within 2 weeks from the date of receipt by the bailiff of information about complement of the deficiencies in the composition of the bodies of the organizational unit. If there is a need to appoint a probation officer again, the court will “as far as possible” appoint the same person.

Contrary to the previously prevailing opinions of the doctrine, the new article establishes the principle that not always a lack in the composition of the governing body of any organizational unit being the debtor suspends the proceedings; also not every such lack requires the appointment of a probation officer.

Art. 820 – modification

The second sentence of Art. 820 from before the Amendment has been moved to a separate paragraph 2. Paragraph 1 now provides for an exception to the suspension of proceedings at the request of an enforcement authority: there can be no suspension if the request “is intended only to prolong the proceedings”. Moreover, the second sentence of paragraph 1 provides that if there are grounds for discontinuing the proceedings ex officio, suspension does not preclude discontinuation. Thanks to this ordering change, doubts about the mutual relationship between suspension and discontinuation were dispelled, and the creditor’s freedom to perform dispositional actions was limited in cases where they were undertaken in order to obstruct the proceedings.

Execution against real estate

Art. 940 – changes regarding the order of satisfaction from real estate income

The article has been divided into 2 paragraphs. In the first one, the administrator’s ability to meet the “directly necessary” expenses connected with the management was limited. Then, the first point mentions covering “the costs of enforcement in the form of remuneration in the amount determined by the court (…)” – so the separation of the costs of enforcement from the administrator’s remuneration was abandoned. Reimbursement of own expenses remained unchanged. The biggest change, however, is the removal of point 3), which deals with maintenance payments. Hence the introduction of paragraph 2 – it provides for the transfer of surplus income by the administrator at least once a year to the bailiff, who will cover the maintenance claims. Therefore, a new power was granted to the bailiff, which is in line with the legislator’s statement of reasons regarding the protection of maintenance creditors: they are no longer, among others, limited to maintenance awarded by an enforceable court judgment, moreover, the bailiff’s capabilities in determining the amount of debt, keeping settlement cards, etc. allow this body to more effectively pursue the interests of maintenance creditors. Consistently with this change, in Art. 941 of the Polish Code of Civil Procedure, an obligation was imposed on the bailiff (and not, as before, on the administrator) to deposit the surplus of income, after satisfying the debt, into the deposit of the Polish Minister of Finance.

Art. 985 – addition of paragraph 1¹;

The purpose of the regulation is to secure the sums from the surplus from the management board (article 941 of Polish Code of Civil Procedure) or from property insurance (article 929) – according to the previous legal status, if the second time the real estate auction turned out to be ineffective, the proceedings were simply discontinued. The Amendment introduces the obligation to draw up a division plan of the sums indicated before the proceedings are, in accordance with article 985 para. 1, discontinued. The priority of receivables secured by a mortgage or registered pledge and the application of Art. 1036 ¹ of the Polish Code of Civil Procedure (inclusion in the division of the sum from the execution of the creditor with a registered pledge, if the execution concerned receivables that are the subject of a mortgage) was also indicated.

Division of the sum from execution, endowment fund (“fundusz żelazny”)

Art. 1025 – modifications and addition: point 2¹ ) to para. 1, point 3² ) to para. 3, paragraphs 7 and 8

In these changes, the protection of the interests of the maintenance creditor is the most visible guiding the legislator. So far, it has only been possible to satisfy overdue debts. This affected maintenance creditors especially in situations where, for example, the debtor sold the real estate and no longer had property suitable for enforcement. The institution of the so-called endowment fund (“fundusz żelazny”) has therefore the purpose to secure situations in which the debtor fails to meet his maintenance obligation or enforcement against other (than e.g. real estate) components of his property is ineffective.

Amended Art. 1025 para. 1 point 2 is about due and payable maintenance claims, while the added point 2¹ indicates that future maintenance payments are satisfied as the third priority. Their amount is the equivalent of the minimum remuneration for work for a period of one year, for each creditor conducting the enforcement. According to the current minimum wage, these can be amounts of PLN 42,540. The sums attributable to these future maintenance payments (“not due and payable on the date of drawing up the division plan”) are left on the deposit account of the Minister of Finance; if current liabilities cannot be satisfied in any other way, the bailiff will collect the deposited funds. According to para. 7 the sum being the equivalent of the minimum remuneration for work for a period of one year shall also be left on the minister’s account, from the amount due to the debtor after satisfying the claims under para. 1-6; however, the condition of existence of grounds for assuming that the sum already secured against future receivables is not sufficient for their full satisfaction must be met – so additional security for maintenance claims is introduced. At the same time, there is another restriction (paragraph 8): the aforementioned paragraphs (paragraph 1 point 2¹ and paragraph 7) do not apply if, due to earlier executions, there is already a sum equivalent to remuneration for work for a period of 2 years on the deposit account of the Minister of Finance (for each creditor conducting the enforcement); alternatively, if the amount on the Minister’s account is lower, it can be supplemented, but up to the indicated maximum limit.

An additional, smaller change concerns para. 1 point 3. It consists in organizing the terms: the phrase “the lowest remuneration for work” will replace the “minimum remuneration for work”, which will be consistent with the term from the “Act of 2002 on the minimum remuneration for work” (and not “the lowest”). At the same time, a provision will be added to this point on the amounts awarded to the aggrieved party or persons exercising the rights of the aggrieved party in criminal proceedings; they will therefore take precedence over similar claims awarded in civil proceedings.

Execution of irreplaceable action

Art. 1050: addition of paragraph 4

The change concerns the obligation to submit a statement of appropriate content and form in cases of infringement of personal rights. Contrary to the Amendment, the jurisprudence considered the judgment ordering the publication of an apology to be a replaceable action, subject to Art. 1049 of the Polish Code of Civil Procedure. Therefore, the aggrieved party could publish an apology at the perpetrator’s expense when the latter failed to meet the requirements as to the form and content specified in the judgment. From now on, the rules regarding irreplaceable activity apply in such situations; the court will impose a fine on the debtor – max. 15 thousand PLN – and will order the publication of a relevant announcement in “Monitor Sądowy i Gospodarczy” (the Court and Economic Journal). After such publication, the claim confirmed by the enforcement title expires. Leaving aside the extra-legal context, this change raises strictly legal doubts in the doctrine. The choice of the place for publishing the apology may be considered somewhat unusual – according to Ustawy o wydawaniu Monitora Sądowego i Gospodarczego (the Act on the Publication of the Court and Economic Journal), “Court Journal” is not a place to publish an apology, moreover, its cost of publication is very low. Moreover, Art. 1050 para. 4 excludes the application of Art. 1053 of the Polish Code of Civil Procedure, allowing for the replacement of an unpaid fine with detention, and Art. 1052 of the Polish Code of Civil Procedure, giving the possibility of repeating fines in order to force a specific behaviour. Under the current legal status, a refusal to comply with a judgment ordering the publication of an apology will be fined only once. The intertemporal provision of the amending Act also introduces the requirement to apply Art. 1050 para. 4 of the Polish Code of Civil Procedure for enforcement in cases of infringement of personal rights initiated pursuant to Art. 1049 of the Polish Code of Civil Procedure, but not completed before the date of entry into force of the new provision – and it entered into force on a different date than most of the amendments: 15 April 2023.