Changes to extraordinary complaints – greater certainty for business?

The President of the Office of Competition and Consumer Protection and the Financial Ombudsman will no longer be able to appeal against final judgments that have been issued in the course of proceedings with the participation of business entities in the last 20 years. This change results from an amendment to the provisions on extraordinary complaints that came into force on 16 June 2018.

Since 3 April 2018 it has been possible to file an extraordinary complaint to revoke or change a final judgment. A complaint may be filed by: the General Prosecutor, the Citizen’s Rights Ombudsman and, within the scope of their competences, the President of the General Prosecutor’s Office of the Republic of Poland, the Ombudsman for Children, the Patient’s Rights Ombudsman, the Chairman of the Financial Supervision Commission, the Financial Ombudsman and the President of the Office of Competition and Consumer Protection. These bodies could also challenge judgments that became valid after 17 October 1997 (no such complaint has been filed yet).

Now, only the General Prosecutor and the Citizen’s Rights Ombudsman can lodge an extraordinary complaint against “old” judgments, and they can do it until 3 April 2021. In “current” cases, all these bodies still have the right to an extraordinary complaint, which they can lodge within 5 years of when a judgment becomes final and binding (and if a cassation appeal was lodged in a given case – within 1 year of the date of its recognition).

The fact that fewer bodies can lodge extraordinary complaints in cases that were closed a long time ago means that the risk of interference in judgments that are favourable to business should also decrease. It seems, therefore, that banks or insurers may feel a little more confident because “old” judgments will not be changed by the President of the Office of Competition and Consumer Protection, the Chairman of the Financial Supervision Commission or the Financial Ombudsman.

In connection with the changes, it may be worth analysing a company’s closed cases in terms of risks or opportunities brought by an extraordinary complaint. A company itself can also ask the Citizen’s Rights Ombudsman for an extraordinary complaint regarding cases lost before 3 April 2018, if it is “necessary to ensure compliance with the rules of a democratic state that implements the principles of social justice”, and additionally if:

• the judgment violates the principles of human and civil freedoms and rights specified in the Constitution,
• the judgment grossly violates law due to its misinterpretation or misapplication, or
• there is an obvious contradiction between the material court findings and the content of evidence collected in the case

and a given judgment cannot be revoked or changed by other extraordinary means of appeal.

For political reasons (current negotiations with the European Commission on the rule of law), the final shape of the extraordinary complaint law may still change, and the measure may even be withdrawn from the Polish legal system. We will report any changes in future articles.