On 3 April 2018, the Act on the Supreme Court of 8
December 2017 went into effect, incorporating into
the Polish legal system an additional way to
challenge non-appealable court rulings by lodging
an extraordinary appeal with the Supreme Court. In
principle, the extraordinary appeal may be filed
against any non-appealable rulings of a common
court of law or a military court ending proceedings
in the case, other than rulings in minor offence or
tax offence cases. It needs pointing out that the
extraordinary appeal can be used to challenge all
court rulings and not only judgements. Further, the
Act does not make the ability to lodge an
extraordinary appeal conditional upon having
appealed against the ruling in question earlier,
neither does it even require the party to have
previously requested for a justification of the ruling
– if no justification of the ruling being appealed
against have been provided, the Supreme Court can
instruct the relevant court to draw up the
justification. Finally, as a rule, the extraordinary
appeal can also be lodged if the party has already
sought to challenge a non-appealable ruling
otherwise, providing that the extraordinary appeal
cannot rely on the grounds that have already been
ruled upon as part of a previous cassation appeal to
the Supreme Court, as the case may be.
At the same time, the legislators have imposed
certain restrictions on the ability to lodge extraordinary appeals. Above all, the extraordinary
appeal is filed with the Supreme Court and that is
the only court with jurisdiction to hear it. Further,
the extraordinary appeal can be lodged solely by
the parties listed under the Act, in particular the
Prosecutor General, Ombudsmen, and the Small
and Medium Enterprises Representative. Moreover,
the ability to lodge the extraordinary appeal is
time-bound, it can be filed up to 5 years from the
day on which the ruling being appealed against
becomes non-appealable and, in the case of a
ruling that was previously challenged under a
cassation appeal, as the case may be, within 1 year
after they are ruled on. At the same time, within 3
years from the effective date of the Act referred to
above, it is possible to lodge extraordinary appeals
against rulings that became non-appealable after
17 October 1997, however in this case the
extraordinary appeal can be lodged only by the
Prosecutor General or the Ombudsman.
The extraordinary appeal may be lodged if it is
necessary to do so to ensure the rule of law and
social justice and: (i) the ruling infringes on the
rules or freedoms and human and citizens’ rights
laid down under the Constitution; or (ii) the ruling
flagrantly abuses a right by its erroneous
interpretation or incorrect application; or (iii) the
court’s material findings and the evidence on the
record are clearly contradictory. Moreover,
according to the amendment to this Act coming into
force on June 16, 2018, in spite of the
abovementioned conditions, the extraordinary
appeal can be lodged only if it is necessary to
ensure compliance with the principle of a
democratic state that implements the principles of
social justice. Importantly, the extraordinary
appeal may be lodged only if the ruling in question
cannot be reversed or varied by filing any other
extraordinary measures of appeal. If the
extraordinary appeal is successful, the Supreme
Court sets aside the ruling appealed against and,
should a need arise, also the ruling of the court of
first instance and depending on the circumstances
of a case may rule on the merits or remand the
case to the relevant court. If no valid grounds are
found to reverse the ruling being appealed against,
the Supreme Court dismisses the extraordinary
appeal, and the authorised parties cannot file it
again in the interests of the same appellant.
The institution
of
the
extraordinary
appeal
procedure outlined above into Polish law will have
the effect of reducing the security of business
dealings as it enables having non-appealable court
rulings changed based on very general premises.
The actual significance of the new procedure will
depend primarily upon the practical approach of
the nine parties authorised to lodge the
extraordinary appeal and the scope of the possible
future legislative amendments. Without any doubt,
however, there is clearly an interest in the possible
application of the new procedure, as within not
even a full month since the Act became effective
over 600 motions for having the extraordinary
appeal lodged have been filed.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of
certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any
decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases.
The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal
development to the particular facts can be verified.