The authorities (i.e. ZUS) are of the opinion that no formal (procedural) objections can be raised against the decisions they issue, but only substantive ones. Formal allegations will only be admissible in exceptional situations.
The basis for such a view is, among others, the judgment of the Supreme Court of January 14, 2010, ref. no. I UK 252/09).
In this judgment, the Supreme Court stated that “Court proceedings, including cases in the field of social security law, focus on defects resulting from violations of substantive law, and the issue of defects in administrative decisions caused by violation of the provisions of administrative procedure remains, in principle, outside the subject of these proceedings.” . The social security court – as a common court – can and should only notice formal defects of an administrative decision that disqualify it to the extent that it deprives it of the characteristics of an administrative act as the subject of an appeal. However, such a defect is determined only for the purposes of civil proceedings and with consequences for these proceedings only. In cases of other defects listed in Art. 156 § 1 of the Code of Administrative Procedure and in the provisions referred to in Art. 156 § 1 point 7 of the Code of Administrative Procedure, it is necessary to initiate appropriate administrative proceedings in order to declare the decision invalid and eliminate it from legal transactions.” (judgment of the Supreme Court of January 14, 2010, reference number I UK 252/09).
Due to the content of art. 47714 § 21 of the Code of Civil Procedure, which has been in force since November 7, 2019 (art. 47714 § 21 added by Article 1 point 169 of the Act of July 4, 2019 amending this Act as of November 7, 2019) this view should be considered obsolete. Pursuant to art. 47714 § 21 of the Code of Civil Procedure, “if a decision imposing an obligation on the insured person, determining the amount of this obligation or reducing the benefit was issued in gross violation of the provisions on proceedings before the pension authority, the court shall repeal this decision and refer the case for reconsideration to the pension authority.”
Moreover, the provision of Art. 83 section 2 of the Act of 13 October 1998 on the social security system clearly states that “the decision of the ZUS may be appealed against to the competent court within the time limit and in accordance with the principles set out in the provisions of the Code of Civil Procedure.” It means that in the process of considering an appeal, the provisions of the Code of Civil Procedure should also apply, including Art. 47714 § 21 of the Code of Civil Procedure, as well.
As stated by the District Court in Gliwice, “pursuant to Art. 47714 § 21 of the Code of Civil Procedure if the decision imposing an obligation on the insured person, determining the amount of this obligation or reducing the benefit was issued in gross violation of the provisions on proceedings before the pension authority, the court repeals this decision and refers the case for reconsideration. The above provision was added by Art. 1 point 169 of the Act of July 4, 2019 amending the Act – Code of Civil Procedure and certain other acts (Journal of Laws, item 1469, as amended) amending the Act as of November 7, 2019 and allows for examination by the insurance court already at the stage of proceedings before the court of first instance, not only defects resulting from violations of substantive law, but also procedural law. As the justification for the 2019 draft [legislation] shows, regardless of whether these defects concern the form or content of the decisions, their common feature is that they violate the provisions on proceedings before the pension authority to such an extent that their validation is impossible (judgment of the District Court in Gliwice of March 9, 2021, ref. no. VIII U 193/21, LEX no. 3217322). Therefore, the view expressed by the ZUS authorities should be considered erroneous.
Indicating procedural objections in the appeal regarding the proceedings pending before the authorities (i.e. ZUS) is also justified by the content of the standard contained in Art. 83 section 6 of the Act of 13 October 1998 on the social security system. This provision states that “if the ZUS finds the appeal justified, it shall amend or repeal the decision immediately, no later than within 30 days from the date of lodging the appeal. In this case, the appeal will not proceed any further.”
Thanks to the possibility for the authorities to become acquainted with the errors and violations of law committed by them, they have the opportunity to take advantage of the regulations resulting from the above-mentioned Art. 83 section 6 instead of involving the time and resources of common courts. Moreover, accepting the authorities’ view that procedural objections regarding the proceedings before them cannot be raised in an appeal would mean that each authority could commit various shortcomings and violate the rights of the appellant, as long as the formal content of the decision was correct. This, in turn, would lead to the conclusion that it would be unnecessary to conduct any proceedings that would meet even the basic standards of a fair procedure. Such a view cannot be considered rational and correct.
In extreme cases, considering the authorities’ view as valid, one could come to the conclusion that the shortcomings committed by them at the stage of administrative proceedings would be of no importance. As long as a decision is made. As a result, one might get the impression that, in the opinion of the authorities, common courts should replace them and conduct the entire proceedings themselves.
Bernard Łukomski
Legal Counsel
Tax Advisor
tel. +48 608 093 541 / WhatsApp+48 692 802 229
