Immigration law

Ensuring implementation of the principle of durability of the administrative decision in the provisions of the Polish Geological and Mining Law

It is worth knowing that in art. 42 section 1, the Polish Geological and Mining Law introduces far-reaching departures from the extraordinary modes of challenging the concessions adopted in the Polish Code of Administrative Procedure. This solution was introduced by the legislator to implement the principle of durability of administrative decisions issued by the authority, thus ensuring business and economic certainty for entrepreneurs as to their investments. According to this provision, which, however, applies only to concessions granted under the Polish Geological and Mining Law:
1) the commencement of the activity covered by the concession is considered the occurrence of irreversible legal consequences;
2)the repeal (change) of the concession as a result of the resumption of the proceedings cannot take place within a year from the day of starting the activity specified thereby.

The premise of irreversible legal consequences refers directly to the content of art. 156 § 2 of the Polish Code of Administrative Procedure, according to which the administrative decision is not declared invalid when it caused irreversible legal consequences. On the basis of the Polish Geological and Mining Law, the commencement of the activity covered by the concession itself is considered the occurrence of irreversible legal consequences. As it is pointed out in the doctrine, in the case of geological work carried out as part of seeking or recognition of mineral deposits, the design of the exploration itself may constitute the commencement of the activity covered by the concession. In the case of mining operations, it will probably be the moment of commencing the works.

The resumption of the proceedings is a legal institution that allows extraordinary challenge of final decisions, i.e. those that are no longer subject to ordinary means of appeal that make it possible for them to be challenged in the course of the proceedings. Provisions of the Polish Geological Law Act, also in the case of this institution, contain a far-reaching limitation. It is not possible to initiate the resumption proceeding in order to revoke or change the concession after one year from the commencement date of the activity specified thereby.

If for the above-mentioned reasons, the concession cannot be declared invalid or the proceedings cannot be resumed, the administrative body acting ex officio or upon request may only declare the granting of the concession that was in violation of the law and indicates the circumstances due to which it did not declare the decision invalid or did not repeal the concession.

This situation, in turn, is the basis for the entrepreneur seeking compensation from the State Treasury (Article 42 paragraph 2 of the Polish Geological and Mining Law) in order to get compensated for the damage caused by the body’s unlawful final administrative decision.

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