The level of court fees in public procurement complaints is consistent with Poland’s constitution, the Constitutional Tribunal has ruled.
For complaints against the contracting authority for acts or omissions after a tender offer has opened, the level of fees is set by law at 5% of the value of the contract, subject to a cap of PLN 5 million (c. €1.2 million).
The Constitutional Tribunal ruling considered two complaints about very high fees (below the cap) by companies participating in different tender proceedings. After their cases had initially been assessed by the National Appeal Chamber, the companies brought complaints to the district courts. Both court complaints were dismissed due to the companies having failed to pay the court fees.
They then challenged the constitutionality of the fees before the Constitutional Tribunal, claiming that they violated various rights and principles enshrined by Poland’s constitution, including:
- the right of access to court
- the right of appeal against first instance judgments
- the principle that court proceedings must have at least two stages
- the principle of proportionality
- the principle of equal treatment for entities in the same position
At the hearing on 14 January 2014, the Tribunal ruled that setting fee levels relative to the value of the contract was consistent with the Constitution. It ruled that:
- the legislator is entitled to choose the method of setting court fees in civil cases
- the fee for public procurement complaints is set at the same level as for civil cases concerning property rights (5% of the amount being disputed or appealed)
- the legislation already contains provisions allowing for parties, in certain cases, to be exempted from court costs, including fees, in order to help prevent financial constraints from impeding the right of access to the courts
The Tribunal made no ruling on the cap or the level at which it was set (PLN 5 million) and discontinued the proceedings in this respect (although two judges expressed dissenting opinions on this issue). The Tribunal’s reasoning for this was that:
- constitutional complaints can be based only on the unconstitutionality of a normative provision which was the basis for a final decision in the case
- the court fees complained about were not high enough for the cap to apply and therefore could not be the basis for a decision of the Tribunal in this case
The judgment is final and has been published in the Journal of Laws (Journal of Laws of 2014, item 106).
Law: Article 34 (2) of the Act on Court Costs in Civil Proceedings