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Administrative law: End of re-privatization claims. The amendment to the Code of Administrative Procedure closes the way to the recovery of real estate or compensation for real estate unlawfully taken by the People's Republic of Poland

Administrative law: End of re-privatization claims. The amendment to the Code of Administrative Procedure closes the way to the recovery of real estate or compensation for real estate unlawfully taken by the People's Republic of Poland

The Polish parliament passed an act amending the provisions of the Code of Administrative Procedure (CAP), which in practice will deprive former owners or heirs of former owners of real estate unlawfully nationalized during the Polish People's Republic from pursuing re-privatization claims.

Pursuant to the adopted amendment, it will no longer be possible to annul an administrative decision that was issued without a legal basis or with a gross violation of the law, if ten years have elapsed from the date of its delivery or publication, and also when the decision has produced irreversible legal effects.

Moreover, the amendment also makes it impossible to initiate invalidity proceedings if thirty years have elapsed from the date of delivery or announcement of the unlawful expropriation decision. On the other hand, administrative proceedings on the annulment of the decision, initiated after thirty years from the date of delivery or publication of the decision and not completed with a final decision before the effective date of the amendment, should be discontinued by operation of law.

The adopted changes will make it impossible to demand the return of real estate unlawfully expropriated in the times of the Polish People's Republic by the former owners or their heirs. State authorities will no longer be able to annul decisions issued without a legal basis or with gross violation of the law, e.g. expropriation decisions or decisions under the so-called Bierut's decree. Moreover, the amendment will most likely close the way to claim damages for wrongful expropriation. According to the provision of Art. 4171 § 2 of the Civil Code, a claim for compensation for damage caused by the issuance of an unlawful administrative decision is possible after the unlawfulness of that decision has been found in the appropriate proceedings. As a result of the adopted amendment to the CAP, it will no longer be possible to obtain such a decision required to claim compensation.

The amendment is widely criticized in the legal community, in particular due to its retroactive effect and the closure of the way to claim damages for issuing illegal decisions in the times of the Polish People's Republic. Moreover, the discussed provisions may affect international relations between Poland and other countries whose citizens, often heirs of former property owners in Poland, will thus be deprived of pursuing reprivatisation claims. The United States and Israel have already taken a critical stance on this issue.

The amendment is currently awaiting signature by the President of the Republic of Poland.



Marcin Kręglewski

Lawyer

Marcin Kręglewski

Barrister, Senior Counsel

Marcin Kręglewski

Contact:

Rondo ONZ 1
00-124 Warsaw