Poland: cap on court fees in public procurement complaints ruled unconstitutional

The cap on court fees in public procurement complaints has been ruled unconstitutional by the Constitutional Tribunal, just three months after its earlier decision (reported here) to uphold the constitutionality of court fees at their current level.

The cap of PLN 5 million (c. €1.2 million), which relates to complaints against the contracting authority's decisions made after the opening of the bids, did not apply in the cases covered by the previous decision, so no ruling could be made on its constitutionality.

In the new ruling, made on 15 April 2014, the Tribunal decided that the cap violated constitutional rights of access to court and of appeal against first instance judgments. The imposition of such a high cap made fee levels in public procurement cases potentially so high that it impeded access to court and made any right of appeal illusory.

As a result, all court fees in public procurement complaints will now be calculated on the same basis: at five times the level of fee paid for the case to be heard in the lower instance, i.e. the National Appeal Chamber.

This decision may open the door for proceedings to be re-opened where a valid ruling has already been made on the basis of the legal provisions in question. The deadline for filing a motion to do so is three months from the publication of the ruling in the Journal of Laws.

The full impact of this judgment, which cannot be appealed, will not be known until the Constitutional Tribunal publishes the written reasons for its decision, which must be done within a month. The legal provisions on court fees imposing the cap of PLN 5 million will remain binding only until the judgment is published in the Journal of Laws.