Accounting

Enforcement of judgements in Poland

Accounting


Enforcement and recognition of judgements in Poland accordance with Brussels I bis regulation

One of the most fundamental motives for adopting the 1215/2012 regulation, called (to underline its connection to its predecessor) Brussels I "recast" or "bis", was the willingness to simplify and expedite the circulation of judgments given within the territory of the European Union. In accordance with the intent of the union legislators, the territory of the Union ultimately has - at least from the perspective of functioning of judgments in civil matters - become a unified entity devoid of internal borders.

Brussels I bis, without any major changes, preserves the current provisions concerning recognition of judgments, at the same time abolishing the exequatur procedure, harmonizing the core of the mechanism of the recognition and enforcement of court judgments. Consequently, a judgment given in the European Union automatically becomes an enforcement title in the territory of Poland, that is, it can be immediately enforced without an enforceable clause (declaration of enforceability) of the Polish court. The basis for initiation of the enforcement proceedings merely requires a copy of the judgment with the certificate of enforceability issued by the "native" court; theoretically, it is not even necessary to include a translation of these documents, although the authorities might request it.

The debtor (although it is worth noting that the regulations speaks fairly broadly of every interested party) may protect himself from the enforcement of the foreign judgment by initiating separate proceedings in the district court to refuse the recognition of enforcement - an appeal to the judgment given and, in further proceedings, a cassation appeal, is allowed. The grounds for refusal are similar to these in the regulation 44/2001. It is worth noting that due to the annulment of art. 8403  of the ccp, an application for a refusal of enforcement (or recognition) of a foreign judgment shall not take a form of an anti-enforcement suit - and cannot be covered by it - and the initiated procedure shall proceed in accordance with the regulations provided in the new addition to the third part of the Code of civil procedure volume four (art. 115313 – 115324).

Can the debtor delay the enforcement in Poland?

The key aspect is, that the proceedings to refuse the enforcement of judgment do not suspend its execution. The court has the power to suspend it on application by the debtor, it is however left to its sole discretion. On the same basis the court may also limit the enforcement proceedings to protective measures or make enforcement conditional on the provision of security by the creditor. It is worth noting that even lodging an ordinary appeal (analogue to an appeal, a review or a claim) in the country of origin of the judgment does not obligate the court of the country where enforcement is sought to suspend the enforcement, but only allows for such a possibility. It does not change the fact though, that, in accordance with the article 39 of the regulation, only court judgments that are enforceable in the country of origin are subject to enforcement -  and often in accordance with law, it may only be accomplished through decisions of the second instance (this is true, with some exceptions, for e.g. Poland).

The debtor may force the delay of enforcement basically only in two cases: if he requests the delivery of a translation of the judgment ( it causes a temporary restriction on enforcement conditional on the provision of such security) or if the court issuing judgment itself stays its proceedings in accordance with its own national law. 

Accomodation of foreign rulings

Independently of abolishing the exequatur procedure, Brussels I recast introduces an interesting institution of adapting the judgments lodged to the legal framework of a state of enforcement if such measures are not known there. In such case, an originally given measure shall be adapted to the extent possible, to a measure or an order known in the law of that Member State which has equivalent effects attached to it and which pursues similar aims and interests (art.54, pt. 1 of the regulation). At the same time it shall not result in effects going beyond those provided for in the law of the Member State of origin (art.54, pt. 2).

It may be predicted that implementation of these loosely formulated regulations might cause problems in practice. This may be true especially under the Polish law, where the court has relatively little discretion in formalizing measures given in civil recognition proceedings (e.g. compared to English courts where they can be based in equity, that is on broadly understood principles of equity). Relatively flexible in the Polish procedure are protective measures, especially relating to the non-monetary claims (cf. art. 755 § 1 of the ccp), it is difficult however to assess if the regulations referred to in 1215/2012 would allow for adapting finally determined measures to the form used in the current regulations given in the protective proceedings.

What's interesting is that the Polish legislature imposed the obligation to adapt the measures as to rules on the bailiffs (see the newly added art. 115314  of  the ccp), what might raise doubts considering inherent difficulties and complications of legal nature related to this task. However, a bailiff may turn for this purpose to the court (what most likely will become a routine, at least until established practice of adapting given measures is formalized), and a resolution regarding adaptation of a measure in each and every case        is subject to appeal. If it is issued by a bailiff - by filing a complaint regarding his actions     with the court, and if issued by the court - by filing a claim.

Regardless of the difficulties that may arise as a result of implementing the adaptation procedure, implementation of such a mechanism is beneficial as it clearly limits the possibility of referring to the public policy clause at the pretext of implementation of measures unknown to the law of the state where enforcement of judgment is sought.   

 

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