On 26 April 2023, the Labour Chamber of the Supreme Court issued a resolution stating that the hearing of a civil case by a single judge in a court of second instance as allowed under the so-called Anti-Covid Act, restricts the right to a fair trial, as it is not necessary for the protection of public health, and will render the proceedings invalid. The resolution has the force of a legal rule and is effective from the date of its adoption.
What should be the composition of the court of second instance
In accordance with the Code of Civil Procedure, in appeal proceedings, cases are heard by a panel of three judges. An exception to this rule was only established by the Anti-Covid Act, which – due to the threats posed by the pandemic – allowed for single judges to hear cases.
Supreme Court resolution and the public procurement market
Apparently, the Supreme Court’s resolution might seem to have no particular relevance to the public procurement market.
This is because the Public Procurement Law has established a separate institution which examines disputes arising in the context of public procurement procedures, namely the National Appeal Chamber (Krajowa Izba Odwoławcza, KIO).
However, judgments rendered by the National Appeal Chamber may be appealed to the Public Procurement Court, i.e. the Regional Court in Warsaw, which applies the provisions of the Code of Civil Procedure on appeals and thus, also those concerning the composition of the court. In other words, the rule here is a panel of three judges.
Consequences of the new Supreme Court resolution
At present, it is difficult to clearly foresee the effects of the new resolution of the Supreme Court.
According to publicly available information, the Regional Court in Warsaw (and therefore also the 23rd Commercial Appeals and Public Procurement Division, which handles appeals) intends to comply with the resolution.
The immediate consequence of this decision has been the cancellation of some scheduled hearings and the addition of judges to adjudicating panels. In the future, this may also mean that appeal proceedings will be lengthened.
How do we assist in proceedings before the Public Procurement Court?
- Review documents relating to public contract procedures and appeal proceedings before the National Appeal Chamber
- Analyse the grounds of lodging an appeal against decisions of the National Appeal Chamber
- Draft appeals against decisions of the National Appeal Chamber or replies to appeals, and represent parties before the Public Procurement Court
Questions? Contact the authors