European administrative cooperation. Remarks on Polish procedural provisions

Autorzy: Agata Cebera, Jakub G. Firlus

The transnational character of the European Union law, the greater social mobility and the complex, international, personal and capital connections between the entities performing business activity make the administrative proceedings with cross-border elements appear increasingly frequent in the legal “environment” which consists of the activity of Polish public administration authorities.

On the 1st June 2017 Polish Code of Administrative Procedure was amended. Amongst several modest and novel procedural institutions the general rules on European cooperation were enacted. From then on discussion amongst scholars “flourish”; especially it was the case whether such a provision should be introduced to Code, yet only few Authors recognized the practical aspect of new provisions.

European Administrative Cooperation – remarks on Polish procedural provisions not only illuminates the legal framework for mutual assistance within territorial scope of EU from Polish perspective but also serves as general “guide” on this matter dedicated for both foreign authorities and legal professionals.

Spis treści

Chapter 1
Introduction to Polish Administrative Law and Administrative Procedure

1. The basic rules of political and legal system of Poland

2. Public administration in Poland

2.1. General information

2.2. Public administration authorities from the perspective of the Polish political system

2.2.1. The authorities of governmental administration

2.2.2. The authorities of units of self-government 

2.3. Public administration authorities in the functional meaning 

3. Administrative procedures in Poland 

3.1. History – few remarks on place of Polish theory of administrative process in European perspective 

3.2. Taxonomy of administrative procedures – general information

3.3. Administrative procedures in Poland 

Chapter 2
Administrative Cooperation – general remarks 

1. Introduction

2. Administrative cooperation: origins

2.1. Principle of effectiveness in European Union law

2.2 Decentralized model of European Union law enforcement

2.3 Procedural autonomy

2.4. Phenomenon of administrative jurisdiction replication

3. Objectives and functions of European administrative cooperation

4. European administrative cooperation in European Union law

Chapter 3
European administrative cooperation in the Polish Code of Administrative Procedure

1. Introduction

2. Functions of the provisions of division VIIIa CAP

3. Code regulation method applied in division VIIIa CAP

4. Scope of application of division VIIIa CAP

4.1. General remarks 

4.2. Source of obligation of cooperation

4.3. Character of procedure during which the necessity to establish cooperation has appeared

4.4. Temporal scope of the application of the provisions of division VIIIa CAP

5. Exclusion of the application of division VIIIa

5.1. General information

5.2. A “cascade” of provisions governing the course of European administrative cooperation 

6. Application to the European Economic Area

7. Forms (instruments) of the European administrative cooperation

7.1. General remarks

7.2. Providing assistance as a form of European administrative cooperation

7.2.1. Legal assistance consisting in sharing information about the factual and legal circumstances

7.2.2. Legal assistance consisting in performing specific procedural actions

7.3. Other forms of European administrative cooperation

8. Principles of European administrative cooperation 

8.1. Principle of necessity

8.2. “Impossibilium nulla obligatio est” principle

8.3. Principle of proportionality

8.4. Prohibition of replacement of the competent authority by the requested authority

8.5. Principle of applying procedural law of the requested state in cases not regulated by European Union law

8.6. Principle of mutual trust

8.7. Principle of due diligence and comprehensiveness

8.8. Principle of deformalization and electronic form of communication 

8.9. Principle of prompt (rapidity)

8.10. Principle of personal data protection

9. Electronic communication between authorities

9.1. General information

9.2. Special situations

10. Costs

10.1. General information

10.2. Principle of bearing own costs of proceedings

Chapter 4
Proceedings before Polish administrative authority (applicant)

1. Authority obliged to provide assistance

1.1. Types of authorities obliged to provide assistance

1.2. Cooperation between authorities obliged to provide assistance

1.3. Authority “competent” to provide assistance

1.3.1. General information

1.3.2. Submission of a request for assistance to the non-competent authority

1.3.3. Scope of application of Polish law in determining the competence of the authority providing assistance

1.3.4. Examples of competent authorities in the subject of providing assistance

2. Recipient of cooperation act

2.1. General information

2.2. Horizontal plane – an authority of another Member State as so-called recipient of the cooperation act 

2.3. Vertical plane – the European Union administration authority as the so-called recipient of the cooperation act

3. Initiation of proceedings in the course of European administrative cooperation 

3.1. General information 

3.2. Transfer of information in proceedings initiated on request and ex officio

4. Formal elements of the request for assistance (catalogue) 

5. Language of the request for assistance

6. Assessment of the admissibility of the request for assistance 

6.1. General information

6.2. Remedying formal defects 

6.3. Return of the request for assistance 

7. Withdrawal of the request for assistance

8. Consideration of the request for assistance 

9. Time limit for considering the request 

10. Obligation to notify the entity concerned with the assistance about providing assistance

10.1. General information 

10.2. Functions of the notification of assistance

10.3. Nature and legal basis for the obligation to notify of the provision of assistance 

10.4. Subjective scope of the notification

10.5. Objective scope of the notification

10.6. Moment of notification 

10.7. Legal nature of the notification 

10.8. Language of the notification

10.9. Form of notification 

10.10. Formal elements of the notification 

10.11. Appealability 

10.12. Exclusion of the obligation to notify

11. Legal consequences of failure to provide assistance 

Chapter 5
Proceedings before foreign administrative authority – Member States and European Union perspective

1. General remarks

2. Legal basis for submission of a request under Article 260c CAP

3. Subjective scope of application of Article 260C CAP 

4. Objective scope of application of Article 260C CAP   

5. Formal requirements of the application for assistance

5.1. Sources of law 

5.2. Formal elements of a request for assistance (catalogue) 

6. Language of the request for assistance 

7. Obligation to request assistance and jurisdictional administrative proceedings

8. Probative force of a cooperation act 

9. Obligation to notify of assistance