Enforcement of Judgments 2020

Last Updated August 04, 2020

Poland

Law and Practice

Authors



Modrzejewski i Wspólnicy sp. k. provides consulting services in the field of commercial law, company law and the law of commercial contracts, civil law, bankruptcy and reorganisation law, IP rights, labour and social security law, tax law, real estate law and development ventures, and also in the fields of energy law, telecommunications, environmental protection and sport law. The firm offers professional legal assistance in representing clients (both entrepreneurs and natural persons) in court and arbitration proceedings (domestic and international) as well as enforcement proceedings. In addition to the three partners, legal advice is provided by a team of 16 attorneys-at-law, three advocates, three attorneys-at-law trainees, one advocate trainee and three legal assistants. The firm's clients include companies from the media, telecommunications and energy sectors. Consultancy services are provided, inter alia, to a leading Polish telecommunications group and also to television broadcasters, film studios, film and television producers, and entrepreneurs in the field of IT.

In Poland, several options are available to identify the asset position of another party. First, one can search for assets using publicly available information. There is an online public registry of entrepreneurs (legal entities and natural persons conducting business activity are considered separately) as well as a land and mortgage register. However, in this last case, only some groups of professionals (for example notaries) may search databases using keywords such as names, etc. There are also other useful sources of information that might help to identify assets of another party, such as the Register of Pledges or Court and Business Gazette (Monitor Sądowy i Gospodarczy). It would always depend on the nature of the case whether more specific and appropriate sources of information be used. Second, it is also possible to hire a business intelligence agency, available on the Polish market, which can evaluate the credibility of another party or look for its assets. Further, there are provisions on the disclosure of property, which are set out in the Polish Code of Civil Procedure (the PCCP) (see 2.4 Post-judgment Procedures for Determining Defendants' Assets).

If assets are identified, freezing orders are available; these are regulated by the provisions of Second Part of the PCCP (Security of claims, Article 730 et seq). Security may be requested in each civil case heard by the court (including the arbitration court) even before the trial starts. Security may be requested by each party or participant to proceedings if he or she substantiates their claim and legal interest in the security for a claim. A legal interest exists if the lack of security would prevent or significantly hinder the enforcement of a ruling issued in a given case, or otherwise prevent or seriously hinder satisfying the purpose of proceedings.

In theory, a petition for security shall be heard immediately, but in no case later than one week from the day on which the petition is filed with the court, unless otherwise provided for by a specific provision. In practice, this can take up to two weeks.

Monetary claims shall be secured by means of:

  • attachment of movable property, remuneration for work, money in a bank account or other amounts due or property rights;
  • mortgaging the obligor's immovable property;
  • prohibiting the selling and/or encumbering of immovable property which does not have a land and mortgage register or whose land and mortgage register has been lost or destroyed;
  • mortgaging a ship or a ship under construction;
  • prohibiting the sale of a cooperative title to premises; and
  • compulsory administration over the obligor's enterprise or agricultural farm, or a plant comprising part of the enterprise, or a part of the enterprise or the agricultural farm.

If the object of security is other than a monetary claim, the court awards such security as it deems fit in the circumstances, not excluding security applicable to monetary claims. In particular, the court may:

  • regulate the rights and obligations of parties to or participants in proceedings for the duration of the proceedings;
  • prohibit the disposal of objects or rights involved in the proceedings;
  • suspend execution proceedings or other proceedings aimed at enforcing the ruling;
  • rule on the custody of minors and contacts with a child; and
  • order a relevant warning notice to be recorded in a land and mortgage register or other appropriate register.

The meaning of “enforcement order” (tytuł egzekucyjny) is defined in the PCCP. In general, an enforcement order, together with a declaration of enforceability (klauzula wykonalności), provides an enforceable title (tytuł wykonawczy), which is the basis for execution. There are several types of enforcement orders:

  • a non-appealable or immediately enforceable court decision;
  • a settlement reached before the court; and
  • a non-appealable or immediately enforceable ruling of a court clerk (referendarz sądowy).

Furthermore, other rulings, settlements or deeds enforceable by court execution constitute an enforceable title under the relevant legislation. An enforceable title may also be constituted by a notarial deed whereby a debtor or other person specified by law submits themselves to its execution if other specified conditions are met (Article 777 of the PCCP). Enforcement titles in Poland also include rulings issued in EU member states (Article 1153(14) of the PCCP).

Finally, if judgments issued in EU member states covering protection measures, included in the scope of EU Regulation No 606/2013 on mutual recognition of protection measures in civil matters (Protection Measures Regulation), are executable in a manner other than enforcement, they can also be used as a basis for the commencement of execution proceedings (Article 1153(15) of the PCCP).

As a rule, judgments in commercial cases are enforceable; in particular:

  • judgments ordering or prohibiting the doing of acts/injunctions (detailed information on this matter has been provided in Title III of the PCCP, specific provisions on execution, Section 1, execution of non-monetary performances);
  • declaratory judgments, which are enforceable with the exception of judgments determining the existence or non-existence of a legal relationship or law (Article 189 of the PCCP), or if the action is dismissed (the decision on costs in these proceedings is, however, enforceable);
  • default judgments; and
  • judgments made without notice.

In order to enforce a domestic judgment, the procedure set out in the PCCP has to be followed. First, a declaration of enforceability has to be obtained. There is no requirement to appoint an attorney to file an application for a declaration of enforceability or to provide security for costs.

In principle, the court of the first instance where the case has been pending will issue a writ of execution for a court's enforcement title. The court of the second instance may also be entitled to issue such a writ as long as the case files remain with that court. It should be noted, however, that this does not apply to the Supreme Court of the Republic of Poland (Sąd Najwyższy) and to some other specific cases listed in the Article 781, Section 1 of the PCCP. The enforceability may be challenged in the appeal procedure.

It must be also noted that the court may refuse to issue a writ of execution if in light of the circumstances of the case and the contents of the enforceable title (Article 782(1) PCCP):

  • it is obvious that the application is in contradiction with the law and its purpose is to circumvent the law; and
  • it is clear that the limitation period of the claim covered by the enforceable title has passed, unless the creditor presents a document stating that the limitation period has been suspended.

After obtaining a declaration of enforceability, the creditor must file an application for initiation of the enforcement proceedings with the relevant court enforcement officer (komornik sądowy). There are some obligatory elements to the application, such as the copy of the judgment and confirmation of stamp duty payment, as well as voluntary ones such as a power of attorney.

An application must contain information that identifies the obligation to be satisfied, and it must be accompanied by an enforcement order with a declaration of enforceability. If the contents of the enforceable order stipulate that the limitation period for the claim being enforced has expired, the application must be appended with a document stating that the limitation period has been suspended. It is worth noting that it is possible to submit an electronic application for the enforcement title referred to in Article 783, Section 4 of the PCCP.

The creditor must indicate in the application the manner of execution (for example, execution of real estate, movables or bank accounts). An application for the initiation of execution allows for all methods of execution, except for foreclosure. 

Upon the first enforcement action, the debtor is served with the notification of the initiation of enforcement proceedings. The notification provides information concerning the manner of enforcement and is accompanied with a copy of the enforceable title. The court enforcement officer is obliged to present the original enforcement title to the debtor upon request.

After the completion of the enforcement proceedings, the court enforcement officer notes its effect on the enforceable title. The outcome of the execution should be reported in the enforceable title and the enforceable title should be filed, or if the obligation covered by the title was not fully satisfied, the enforceable title should be returned to the creditor. The enforcement officer issues a decision on the costs of the proceeding if such proceedings are ended in any other way than termination.

In the procedure of granting a declaration of enforceability, the defendant is not informed about the ongoing procedure. In theory, pursuant to the Article 781(1) of the PCCP, applications for a declaration of enforceability must be adjudicated by the court immediately, but no later than within three days from the day on which they are filed. In practice, the declaration of enforceability is usually issued no later than two weeks from the date of filing the application. There is no limitation period for applying for a declaration of enforceability.

It should be noted that the time for an enforcement proceeding to be conducted by the court enforcement officer is very hard to determine and will vary depending on a case.

There is a fee in the amount of PLN6 for each page of judgment, unless the party applying for a declaration of enforceability encloses a copy of the final judgment by the court. In cases listed in Article 71 of the Act of 28 July 2005 on court costs in civil cases, the fee for an application for a declaration of enforceability is PLN50.

It should be also noted that the costs of enforcement proceedings conducted by the court enforcement officer will vary depending on the case. The rules on these costs are regulated in the Act of 28 February 2018 on bailiffs costs. In general, the enforcement fee should be paid by the debtor (10% of the enforced claim). However, there are a lot of specific rules and fees, depending on the case, which should be evaluated before entering into enforcement proceedings.

Last but not least, it is advisable to check if any of special regulations related to preventing and combating COVID-19 change the time limits (time limits that had already started to run were suspended for the duration of the epidemic and new time limits that had not yet commenced were suspended until the state of the epidemic was over).

Section V of the PCCP includes provisions on the disclosure of property. If a debtor's property, attached in enforcement proceedings, is unlikely to satisfy the claims that are being enforced or if the creditor proves that the enforcement has not satisfied his or her claims in full, the creditor may request that the debtor be obligated to submit a list of his or her property, specifying particular assets and their location, his or her receivables, and other property rights or information about legal transactions, conducted against payment or free of charge, whose object is an asset or a right that as at the date of the given legal transaction has a value exceeding the minimum remuneration for work fixed pursuant to the Act of 10 October 2002 on the Minimum Remuneration for Work and that is concluded, for the benefit of third parties, within the five-year period preceding the initiation of the enforcement proceedings, as a result of which the debtor became insolvent or became more insolvent than before the conclusion of those legal transactions, and that the debtor made the oath.

The creditor may also request the disclosure of property details before the commencement of execution if:

  • he or she proves that he or she cannot satisfy his or her entire claim from the property known to him or her or from the current periodic benefits due to the debtor for a period of six months; or
  • after acquisition of an enforceable title, he or she ordered the debtor to pay the debt confirmed thereby by registered letter against acknowledgement of receipt, and the debtor failed to make the payment within 14 days from the day of delivery of the payment order.

Regarding domestic judgments, the defendant or a third party can oppose the enforcement procedure using the following means.

  • A complaint (zażalenie) against a court decision to issue a declaration of enforceability pursuant to the Article 795, Section 1 of the PCCP, which concerns only a decision to issue a declaration of enforceability. The court does not examine the merits of the case.
  • A complaint (skarga) against the action of a court enforcement officer (or failure to act) pursuant to Article 767 of the PCCP. Such a complaint can be filed by a party or third person whose rights were violated or threatened by the enforcement officer's action or failure to act. As before, the court does not examine the merits of the case.
  • An action (pozew) by the defendant to limit or cancel the enforceability of an enforceable title in whole or in part pursuant to Article 840 of the PCCP. There are three grounds for bringing this kind of action:
    1. the defendant denies facts on whose basis a declaration of enforceability was issued, and, in particular, if he or she questions the existence of an obligation recognised by an enforcement order other than a court ruling, or if he or she questions the transfer of an obligation despite the existence of a formal document recognising that transfer;
    2. an event took place after the enforcement order was issued, as a result of which an obligation expired or cannot be enforced; if the title is a court ruling, the debtor may also base their action on events which took place after the hearing was closed, and on the allegation of satisfaction of the obligation, if the invocation of that allegation in the case was inadmissible under the Act, as well as on the allegation of set-off; and
    3. a spouse against whom the court issued a writ of execution under Article 787 of the PCCP proves that the creditor is not entitled to the executed obligation, provided that the spouse may raise allegations not only on the grounds of his or her own rights, but also allegations which the spouse was previously unable to raise.
  • An action by a third party to exempt an item from enforcement/execution if it violates the third party's rights pursuant to Article 841 of the PCCP. 

Some types of domestic judgments are not enforceable. These are judgments whose content suggests that compulsory enforcement is not possible. For example, the following judgments do not constitute enforcement orders:

  • declaratory judgments (issued on the basis of Article 189 of the PCCP);
  • rulings determining legal relations (eg, divorce judgments, decisions on establishing the acquisition of an inheritance); and
  • judgments dismissing actions (except decisions determining the costs of the parties in these judgments).

There is no official central register of judgments in Poland. However, there is a website (Portal Orzeczeń Sądów Powszechnych) where more than 300,000 rulings are currently available in Polish. No personal data is published there.

There is also the National Register of Debtors (Krajowy Rejestr Dłużników – KRD), which was established in 2003, based on the Act on the Disclosure of Economic Data and the Exchange of Economic Data. This register is currently the largest platform for the exchange of economic information. It records and makes available data on the financial standing of business entities and natural persons.

The KRD lists the names of individuals or entities whose financial liabilities exceed a total amount of PLN200 (in the case of consumers) or PLN500 (in the case of entrepreneurs) and remain unpaid for at least 30 days. All required conditions are specified in the above-mentioned Act.

An individual may, every six months and free of charge, check if his or her name has been shown in the register, thus enabling individuals to see whether someone has, for example, swindled his or her money or taken out a loan in his or her name.

A consumer may check the name of a contractor and if said contractor has been shown in KRD as a debtor, the consumer has the right to change the terms of contract.

The regulations on the enforcement of foreign judgments are specified in Part Three of the PCCP entitled "Enforcement Procedure" (Articles 795(1)-795(17)) and in Book Three of the PCCP, under "Recognition and Confirmation of Enforceability" (Articles 1145 onwards of the PCCP).

For foreign judgments (regarding commercial matters) granted in EU member states, the main applicable laws are Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation) for proceedings instituted before Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) came into force (that is proceedings entered into before 10 January 2015) and the Recast Brussels Regulation for proceedings entered into after 10 January 2015.

There are also other EU regulations that concern specific proceedings, such as Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims (European Enforcement Order Regulation), amended by Regulation (EC) No 1896/2006 creating a European order for payment procedure or Regulation (EC) No 861/2007 establishing a European Small Claims Procedure.

Regarding foreign judgments (as before, in commercial matters) granted outside the EU, the following laws are applicable:

  • the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007 (New Lugano Convention);
  • the Convention of 30 June 2005 on choice of court agreements (the 2005 Hague Convention) (entered into force on 10 January 2015); and
  • bilateral international agreements concerning the recognition and enforcement of judgments in civil and commercial matters.

A judgment issued in an EU member state, enforceable in that member state, is enforceable in other member states without any declaration of enforceability being required and under the same conditions as a judgment given in the member state of enforcement. Therefore, as a rule, all judgments (regarding commercial matters) are enforceable if they are enforceable in the member state where the judgment was issued, and the applicable law will be that of the original member state that issued the judgment.

In the case of judgments rendered outside the EU, and in the absence of any international agreements, the PCCP regulations apply. In general, rulings of foreign state courts issued in civil matters which may be enforced by execution become enforceable titles, once their enforcement has been confirmed by a Polish court. Enforcement is confirmed if a ruling is enforceable in the state of issue and is not blocked by the obstacles referred to in Sections 1 and 2 of Article 1146 of the PCCP.

As stated before, a judgment given in an EU member state is recognised in other member states without any special procedure being required. That is why there are no types of judgments that are a priori excluded from recognition and enforcement, and the applicable law will be that of the original member state which issued the judgment.

Regarding judgments rendered in states outside the EU and in the absence of any international agreements, the PCCP regulations apply. In general, the rulings of foreign state courts in civil matters, which can be enforced by execution, become enforceable titles upon confirmation of their enforcement by a Polish court (as stated in 3.2 Variations In Approach to Enforcement of Foreign Judgments). Therefore, no types of judgments are expressly excluded from recognition and enforcement.

The process of enforcing foreign judgments needs to be considered with regard to judgments issued in the EU member states and countries outside the EU.

With regard to EU judgments, the procedure for the enforcement of judgments given in another EU member state is governed by the law of that member state (Article 41.1 of the Recast Brussels Regulation). In view of the fact that the judgment rendered by the court of a EU member state does not need to be declared enforceable, the relevant documents under the Recast Brussels Regulation must be submitted to the enforcement authority with the application for initiation of the enforcement proceedings (a copy of the judgment which satisfies the conditions necessary to establish its authenticity and a certificate issued under Article 53 of the Recast Brussels Regulation).

As mentioned before, a judgment given in a member state is enforceable in other member states without any declaration of enforceability being required (Article 39 of the Recast Brussels Regulation). This is why the enforcement proceedings are governed by the same rules as domestic enforcement proceedings (from the moment of lodging the application to begin the enforcement proceedings). For example, the creditor in Poland has a right to choose a court enforcement officer (except for the execution against immovable property). With regard to non-EU member states, a declaration of enforcement is issued by a regional court (sąd okręgowy) in the place of the debtor's residence or registered office or, if there is no such court, the regional court in whose area enforcement is to be conducted (Article 1151(1), Section 1 of the PCCP).

In these proceedings there is no requirement to appoint an attorney to file an application for a declaration of enforceability. However, it is significant to note that a party who does not have a place of stay or residence, or a registered address in Poland or another EU member state, and who has not appointed a court representative domiciled in Poland, must appoint a representative for delivery in Poland. If such a representative for service is not established, judicial writs addressed to that party are left in the case files and are considered duly served (Article 1135(5) of the PCCP).

It should be also noted that with regard to EU members, a duty to provide security, a bond or deposit cannot be imposed on a party who, in one member state applies for the enforcement of a judgment given in another member state, on the grounds that he or she is a foreign national or he or she is not domiciled or resident in the member state addressed. In contrast to that, with regard to non-EU citizens, if no international agreement applies, and a complaint against a decision to issue an enforcement clause is dismissed, or if a decision to issue a writ of execution is passed, the court of appeal can conditionally enforce the ruling of a foreign state's court if payment of the relevant bail is made by a creditor (Article 1151(2), Section 3 of the PCCP).

In contrast to judgments rendered by courts in EU member states, which do not need to be declared enforceable, non-EU foreign state courts' judgments in civil matters only become enforceable titles once their enforcement is confirmed by a Polish court (Article 1150 of the PCCP). From that point, the enforcement proceedings are governed by the same rules as domestic enforcement proceedings (from the moment of lodging the application to begin the enforcement proceedings).

In the case of an EU foreign judgment, the applicant has to provide following documents with the application for enforcement:

  • a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and
  • the certificate issued according to Article 53 of the Recast Brussels Regulation, certifying that the judgment is enforceable and containing an extract of the judgment as well as, where appropriate, relevant information on the recoverable costs of the proceedings and the calculation of interest. The certificate is issued by the court of origin, at the request of any interested party, using the form set out in Annex I of the Recast Brussels Regulation. The competent enforcement authority may, where necessary, require the applicant to provide a translation or a transliteration of the contents of the certificate.

Pursuant to Article 61 of the Recast Brussels Regulation, there is no need to authenticate the required documents. However, the Polish language is the only recognised language in enforcement proceedings in Poland, and, in theory, there is no need to provide a translation of the judgment. The competent enforcement authority can require the applicant to provide a translation of the judgment only if it is unable to proceed without such a translation (Article 42.4 of the Recast Brussels Regulation). Also, the person against whom enforcement is sought may request a translation of the judgment in order to contest the enforcement (under conditions specified in the Article 43 of the Recast Brussels Regulation). Taking the above into consideration, it seems advisable to prepare a translation of the judgment before the enforcement proceedings begin.

In the case of a judgment issued outside the EU, a person who claims enforcement of a ruling of a foreign state court has to provide:

  • an official copy of the judgment;
  • a document certifying that the judgment is non-appealable unless it is evident from the content of the judgment that it is non-appealable;
  • a certified translation into Polish of the documents referred to in this list;
  • if a judgment was issued in proceedings in which the defendant did not defend on the merits of the case, a document must be presented to confirm that the initial pleading had been served on the defendant;
  • a document confirming that the judgment is enforceable in the state of issue, unless its enforceability is evident from the content of the judgment or the law of that state; and
  • in the event of appointing a proxy, the power of attorney must be presented and stamp duty of PLN17 paid.

The judgment should be legalised by an authority competent in the state where the judgment was given, unless the state is a party to the HCCH Convention Abolishing the Requirement of Legalisation for Foreign Public Documents 1961 (Apostille Convention). The Apostille Convention replaces the legalisation process with a less formal certificate (apostille).

For enforcement proceedings concerning judgments issued in EU countries are proceedings, the debtor is not informed about the ongoing procedure. This is why the time it takes to enforce such a judgment shall not vary substantially from the domestic cases described above. However, an enforcement proceeding regarding a judgment issued in the country outside the EU is adversarial, which makes it a longer procedure. A debtor can present to the court his stance in a case within two weeks from the delivery of a copy of a petition (Article 1151(1), Section 2 of the PCCP). The court may hear a petition in camera. The estimated time of the proceedings will be prolonged because of the time needed to deliver a copy of the petition to a debtor, for a debtor to present his statement and for a declaration of enforcement to become non-appealable. It is not only possible to appeal the declaration of enforcement issued by a regional court, but also an appeal in cassation can be filed from the decision of the Court of Appeal.

The fee of the application for a declaration of enforceability of a foreign ruling, or ruling issued by any other foreign authority or settlement made before a foreign court, or other foreign authority, or authorised by a foreign court or a foreign authority, amounts to PLN300.

It should be also noted that the costs of enforcement proceedings conducted by the court enforcement officer will vary depending on a case, but, as with domestic enforcement, the rules on these costs are regulated by the Act of 28 February 2018 on court enforcement officer costs.

Last but not least, it is advisable to check if any of special regulations related to preventing and combating COVID-19 change the time limits (time limits that had already started to run were suspended for the duration of the epidemic, and new time limits that had not yet commenced were suspended until the state of the epidemic was over).

It should be noted that the enforcing court does not review the substance of the foreign judgment.

With regard to the judgments issued in EU member states,as mentioned before, a judgment given in a member state is recognised in other member states without any special procedure being required (Article 36 of the Recast Brussels Regulation). Therefore, the options available to challenge enforcement will always depend on regulations applicable in the EU state of origin. It is especially important to take into consideration the fact that the court or authority before which a judgment given in another member state is invoked can suspend the proceedings, in whole or in part, if the judgment is challenged in the member state of origin. Similarly, a judgment given in a member state is also enforceable in the other member states without any declaration of enforceability being required (Article 39 of the Recast Brussels Regulation).

It should be noted thatthe enforcing authority is not entitled to consider the grounds on which the foreign court assumed jurisdiction, unless the interested party makes an application to refuse the recognition of judgment (Article 45 of the Recast Brussels Regulation). If the judgment conflicts with the specified provisions of the Recast Brussels Regulation concerning jurisdiction, the recognition of the judgment will be refused if the judgment conflicts with the specified provisions of the Recast Brussels Regulation. Firstly, this covers all the conflicts with the jurisdiction provision where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee was the defendant. Secondly, this covers the exclusive jurisdiction provisions, where the courts of a member state have exclusive jurisdiction, regardless of the domicile of the parties. In its examination of the grounds of jurisdiction described above, the court to which the application was submitted is bound by the findings of fact on which the court of origin based its jurisdiction.

Regarding service, there are no specific requirements for proper service regarding both EU member states (Recast Brussels Regulation) and other states (PCCP provisions), and the general rules apply. However, the lack of proper service is an important ground for refusal in these proceedings.

With regard to the judgments issued in the non-EU member states, it should be noted that in the absence of any international agreements, the PCCP regulations apply. As a matter of principle, rulings of foreign state courts issued in civil matters are recognised by virtue of law unless there are obstacles as specified in Article 1146 of the PCCP. Pursuant to this Article, there are several grounds for refusal and the enforcing court must examine them. A ruling is not recognised if:

  • the ruling is not final and binding (non-appealable) in the state where it was issued;
  • the ruling was issued in a case which falls under the exclusive jurisdiction of Polish courts;
  • a defendant who did not defend on the merits of the case was not duly served an initial pleading in due time to enable him to defend himself or herself;
  • a party was deprived of the possibility to defend himself or herself in the course of proceedings;
  • a case involving the same claim between the same parties had been brought before a court in Poland before it was brought before a court of a foreign state;
  • the ruling is contrary to a previous non-appealable ruling of a Polish court or a previous non-appealable ruling of a court of a foreign state recognised in Poland, issued in a case involving the same claim between the same parties; or
  • recognition of the ruling would be contrary to the basic principles of the legal order of Poland (the public order clause/public policy clause).

For EU member states, the enforcing court is not required to examine the refusal grounds ex officio (from the court initiative). The grounds for refusing recognition and enforcement are the same; however, the interested party must file an appropriate application. The recognition (enforcement) of judgment must be refused if (Article 45 of the Recast Brussels Regulation):

  • such recognition is manifestly contrary to public policy in the member state addressed;
  • the judgment was given in default of appearance ‒ if the defendant was not served with the document which instituted the proceedings, or with an equivalent document, in sufficient time and in such a way as to enable him or her to arrange for his or her defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him or her to do so;
  • the judgment is irreconcilable with a judgment given between the same parties in the member state addressed;
  • the judgment is irreconcilable with an earlier judgment given in another member state or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the member state addressed; or
  • the judgment conflicts with the indicated provisions of the Recast Brussels Regulation concerning jurisdiction.

Another issue that should be clarified is the concept of "public policy", which is important with respect to every foreign judgment. For EU member states, one of the grounds for refusing recognition and enforcement is that such recognition is manifestly contrary to public policy in the member state addressed. For non-EU member states, Article 1146 of the PCCP applies in the absence of an international agreement and one of the grounds for refusal recognition and enforcement of the judgment is that such recognition would be contrary to the basic principles of the legal order of Poland.

Therefore, the notion of “public policy” encompasses not only the principles of the Polish Constitution, but also rules governing particular areas of the law. The judgment must comply with the basic rules of the Polish legal system concerning court proceedings and the substantive law. The notion of "public policy" includes fundamental "procedural injustice", which is often understood as a breach of the main procedural rules. For example, one such main rule is the adversarial principle, under which parties are obliged to prove their rights before an impartial judge, who stays neutral and passive during a trial.

A judgment of a foreign court is deemed to infringe the fundamental rules of the Polish legal system if, for instance, the effect of such a judgment is contradictory to the concept of a particular legal institution itself, not only the particular provisions regulating the same institution in both states. For example, the public policy concept applies in a hypothetical situation where a divorce judgment is recognised in Poland, but, at the same time, it is forbidden to dissolve a marriage through divorce in Poland. In this situation, the foreign divorce judgment infringes the public policy principle in Poland. However, the public policy principle will not apply if a divorce judgment is recognised in Poland and only minor law provisions concerning divorce are different in both countries.

The public policy clause aims to prevent the recognition of foreign judgments that do not conform to the fundamental legal standards of Poland. It is not the foreign judgment itself, but the effect of the recognition of the foreign judgment which is irreconcilable with the fundamental rules of the Polish legal system. Therefore, when considering if a foreign court ruling must be subject to public policy principles, the court examines the possible effect of recognition on the Polish legal system. 

The main cases where the public policy clause is considered are those concerning family law (including divorce), succession law and litigation (procedural issues).

Last but not least, it should be noted that, in general, the court decision to issue a declaration of enforceability can be appealed. The decision of a regional court concerning the declaration of enforcement can be appealed, and an appeal in cassation can be filed against the decision of the Court of Appeal. Additionally, the reopening of proceedings which concluded with a non-appealable decision on the issuance of a declaration of enforcement can be requested and a plea of the illegality can be filed. This does not apply to judgments issued in EU states, since there is no need to grant a declaration of enforceability.

The law on the enforcement of domestic arbitral awards is set out in Articles 1212 to 1217 of the PCCP. The UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) implements the above-mentioned provisions of the PCCP, which are also applicable to all arbitral awards.

Poland is a contracting party to the New York Convention and has adopted this Convention with both available reservations: (i) a reciprocity reservation, under which the state may apply the Convention only to awards issued in another Convention state; and (ii) a commercial reservation, under which the Convention will apply only to disputes regarded as "commercial" under that country's national law. This means that Poland applies the New York Convention only to recognition and enforcement of awards made in the territory of another contracting state, and Poland will only apply the New York Convention to differences arising out of legal relationships, whether contractual or not, that are considered commercial under the national law. According to the information available on the website of the United Nations Commission on International Trade Law, these restrictions apply to Poland.

Poland is also a party to the European Convention on International Commercial Arbitration 1961 (the Geneva Convention).

While there is no definition of an arbitral award for domestic proceedings, there are several conditions that an arbitral award must meet (Article 1197 of the PCCP).

  • First, a judgment of an arbitration court should be made in writing and signed by the issuing arbitrators. If a judgment is issued by an arbitration court panel of three or more arbitrators, the signatures of the majority of arbitrators, accompanied by an explanation as to why the other signatures are not provided, are sufficient.
  • Second, a judgment of an arbitration court must include the rationale for the decision taken.
  • Third, a judgment of an arbitration court should contain a reference to the arbitration clause on whose basis the judgment was issued, identify the parties and the arbitrators and specify the date and place of issue. A judgment of an arbitration court is then served on the parties.

Under Article 1.2 of the New York Convention, the term "arbitral awards" includes both:

  • awards made by arbitrators appointed for each case; and
  • those made by permanent arbitral bodies to which the parties have submitted.

Pursuant to Article 1214, Section 1 of the PCCP, the court shall recognise a judgment of an arbitration court or a settlement reached before an arbitration court which cannot be enforced by execution in a decision issued in camera. If a judgment of an arbitration court or a settlement reached before an arbitration court can be enforced by execution, the court confirms enforceability by issuing a declaration of enforceability. The judgment of an arbitration court or the settlement reached before it, whose enforceability has been confirmed, are enforceable titles. As a rule, money awards are enforceable. However, it is only possible to determine if the arbitral award is enforceable after examination of its content.

The domestic arbitral award provisions of the PCCP are applicable for recognition and enforcement. Domestic enforcement proceedings in the first instance are ex parte proceedings (in the absence of one or more parties).

An application for recognition and enforcement must be brought before a court which would have been competent to hear the case if the parties had not made an arbitration clause (Article 1158, Section 1 of the PCCP). It is worth to noting that in domestic arbitral awards, a claim confirmed by an arbitration court ruling is subject to a six-year limitation period, even if the statutory period of limitation for such claims is shorter (Article 125 of the PCCP).

If an arbitration clause has been agreed, the party's petition must include the duly authenticated original award or a duly certified copy thereof, as well as the original or a duly certified copy of the arbitration clause (or agreement). The certified copy should be made by a notary, consul or it also can be made in accordance with Article 129, Sections 2 and 3 of the PCCP by the party's court agent being an attorney, legal advisor, patent attorney or solicitor of the State Treasury Solicitor's Office. The party is obliged to provide a certified translation in Polish if a judgment of an arbitration court, or a settlement reached before an arbitration court, or an arbitration clause (agreement) is not made in Polish. The translation should be made by a sworn translator or consul.

As a rule, the PCCP does not require any specific information to be included in the application for declaration of enforceability of a domestic arbitration award. However, it seems to be desirable to formulate the application in a way indicating that there are no obstacles to declare enforceability.

The execution procedure, when a declaration of enforceability is granted, is the same as for domestic and foreign judgments.

With regard to the foreign arbitral awards, the statutory provisions of the New York Convention apply if the parties are bound by this, and the provisions of the PCCP also apply. If the award is rendered in the state which is not a party to the New York Convention, the relevant provisions of the PCCP apply.

The court only recognises or confirms the enforcement of a judgment of an arbitration court issued abroad, or a settlement reached before an arbitration court abroad, after trial.

Similarly, as in the case of domestic arbitral awards, an application for recognition and enforcement of foreign arbitral judgments should be brought before a court which would have been competent to hear a case if the parties had not made an arbitration clause (Article 1158, Section 1 of the PCCP).

In the case of foreign arbitral awards, the issue of limitation periods is covered by the law of the state where the award was issued.

Under Article IV of the New York Convention, the translation must be certified by an official or certified translator or by a diplomatic or consular agent. The legalisation of the award must be made pursuant to provisions of the law where the award is issued (or pursuant to the provisions of the Apostille Convention), if applicable.

As a rule and similar to domestic arbitral awards, the PCCP does not require any specific information to be included in the application for declaration of enforceability of a foreign arbitration award. However, it is advisable to indicate in the application that there are no obstacles to declare enforceability. It is advisable for such an application to include, in particular:

  • information proving that the foreign judgment is final and binding (non-appealable);
  • a foreign court statement declaring that the opposite party was duly represented in the original proceedings; and
  • the compliance of the judgment with the fundamental principles of public policy applicable in Poland.

Additionally, under Article V of the New York Convention, is it recommended that the following information be included:

  • a valid arbitration clause and an indication that the wording of the award does not exceed the scope of such an arbitration clause;
  • a statement to the effect that the opposite party participated in the proceedings in line with any applicable rules;
  • a submission that the composition of the arbitration panel was proper and that the arbitration award is binding on the parties.

When a declaration of enforceability is granted, the execution procedure is the same as for domestic and foreign judgments.

It is almost impossible to determine the length of proceedings, as enforcement proceedings can vary substantially depending on the case and the court.

The court fee for an application for declaration of enforceability of an arbitration award or a settlement made before a court is PLN300.

The costs of the execution procedure is the same as for domestic and foreign judgments.

Last but not least, it is advisable to check if any of special regulations related to preventing and combating COVID-19 change the time limits (time limits that had already started to run were suspended for the duration of the epidemic and the new time limits that had not yet commenced were suspended until after the state of the epidemic was over).

The grounds for refusing enforcement of domestic awards are specified in Article 1214 of the PCCP.

The court can refuse to recognise or confirm the enforcement of an arbitration award or a settlement reached if:

  • under PCCP provisions, the dispute cannot be adjudicated by an arbitration court;
  • recognition of a judgment of an arbitration court or a settlement reached before an arbitration court would be contrary to the basic principles of the legal order of Poland (the public policy clause); or
  • the award of the arbitration court or a settlement concluded before such a court deprives the consumer of protection granted to him or her by mandatory provisions of contract law, where the consumer is one of the parties to the contract, and where the law applicable to the contract is the law chosen by the parties. 

With regard to domestic arbitral awards, an appeal against a decision of the Court of Appeal concerning the recognition or statement of enforceability of an arbitration court's judgment issued in the Republic of Poland, or a settlement reached before that arbitration court, may be filed with another panel of the Court of Appeal (Article 1214, Section 4 of the PCCP).

Regarding foreign arbitral awards, an appeal in cassation may be filed against a final court decision concerning the recognition or statement of enforceability of a judgment of an arbitration court issued abroad or a settlement reached before an arbitration court abroad. Moreover, a resumption of proceedings which concluded with a final decision concerning the recognition or statement of enforceability may be requested, and a plea of illegality of the final decision issued in this respect may be filed.

As a rule, the enforcing court is not allowed to review the domestic and foreign award as to its substance. However, in some cases, the prerequisite public policy clause can be used to challenge the award, even if it complies with all the necessary formalities and requirements. The court can refuse to recognise or confirm the arbitration award, or the settlement reached, on the grounds of the public policy clause.

The grounds for refusing enforcement of international awards are specified in Article 5 of New York Convention. Recognition and enforcement of the award can be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought proof that:

  • the parties to the arbitration agreement (or arbitral clause), under the law applicable to them, had been under some incapacity, or the said agreement is not valid under the law to which the parties had agreed or, in the absence of any indication to that effect, under the law of the country where the award was made;
  • the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present his or her case;
  • the award deals with a difference that was not contemplated by, or did not fall within, the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not submitted, the part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced;
  • the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, in the absence of such agreement, was not in accordance with the law of the country where the arbitration took place; or
  • the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

The recognition and enforcement of an arbitral award can also be refused if the competent authority in the country where recognition and enforcement is sought finds that the:

  • subject matter of the dispute must not be settled by arbitration under the law of Poland;
  • recognition or enforcement of the award is contrary to the public policy of Poland.

If no international agreement applies (including the New York Convention), then Article 1215 of the PCCP applies. The grounds in Article 1215 of the PCCP are very similar to the grounds stated in the New York Convention. First, the grounds stated in the Article 1214, Section 3 apply. Irrespective of these grounds, the court, at the request of a party, can refuse to recognise or confirm enforcement of a judgment of an arbitration court issued abroad or a settlement reached before an arbitration court abroad if the party proves that:

  • there was no arbitration clause, or the arbitration clause is void, invalid or has expired according to the relevant law;
  • the party was not duly notified of the appointment of an arbitrator or proceedings before an arbitration court, or was otherwise deprived of the possibility to defend his or her rights before an arbitration court;
  • an award concerns a dispute that is not covered by an arbitration clause or falls beyond the subject-matter and scope of that clause;
  • the composition of the arbitration court or proceedings before the arbitration court were not in accordance with an agreement between the parties or, if there was no such agreement, with the law of the state where proceedings before the arbitration court were conducted; or
  • an award is not yet binding on the parties or has been set aside, or its enforcement has been postponed by a court of the state in which, or according to whose laws, the judgment was issued.
Modrzejewski i Wspólnicy Sp.k.

spółka komandytowa
Al. Stanów Zjednoczonych 61
04-028 Warszawa

+48 22 516 2600

+48 22 516 2601

biuro@modiw.pl
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Law and Practice

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Modrzejewski i Wspólnicy sp. k. provides consulting services in the field of commercial law, company law and the law of commercial contracts, civil law, bankruptcy and reorganisation law, IP rights, labour and social security law, tax law, real estate law and development ventures, and also in the fields of energy law, telecommunications, environmental protection and sport law. The firm offers professional legal assistance in representing clients (both entrepreneurs and natural persons) in court and arbitration proceedings (domestic and international) as well as enforcement proceedings. In addition to the three partners, legal advice is provided by a team of 16 attorneys-at-law, three advocates, three attorneys-at-law trainees, one advocate trainee and three legal assistants. The firm's clients include companies from the media, telecommunications and energy sectors. Consultancy services are provided, inter alia, to a leading Polish telecommunications group and also to television broadcasters, film studios, film and television producers, and entrepreneurs in the field of IT.

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