NEWSLETTER - September 2012 www.wbwlegal.pl

Dear readers,

we are proud to present you the September issue of our newsletter. The articles include information regarding assistance in preparation of a tender procedure. According to the views expressed in the judgment of the National Chamber of Appeal, assistance in preparation of a tender procedure can be a ground for excluding a contractor only in case a contractor's participation in a procedure breaches fair competition.  
In the current issue we describe the new form of security pursuant to the Ordinance of the Minister of Justice. The ordinance came into force on 9th June 2012 to create new regulations justified by the amendment to the Civil Procedure Code which allows to provide collateral in the form of securities.
The September issue of our newsletter also discusses the interesting matter of launching the Internet Reference System of Judged Cases for all appeal courts in Poland. It is supposed to enable the society to realize the constitutional right to control the judiciary.

We wish you a pleasant read.
WBW team


Assistance in preparation of a tender procedure does not need to cause exclusion

In the judgment of 23rd July 2012, the National Chamber of Appeal stated that assistance in preparation of a tender procedure is not grounds for exclusion from participating in a procedure as long as it does not hinder fair competition.

The normative act which regulates the issue of a broadly defined public procurement in the Polish law is the Act of Public Procurement Law (hereinafter referred to as PPL). It is this act that constitutes a basis for the material reasons for the judgment delivered by the National Chamber of Appeal.

The grounds for excluding a contractor from a tender procedure are defined in Art. 24(2)(1) PPL. A buyer can exclude a contractor from a tender procedure after proving that a contractor performed activities which were directly related to preparation of a tender procedure and that a contractor's participation in that procedure hindered fair competition. An exclusion is justified only if participation in preparatory works had a direct character i.e. yielded results which were directly applied in a procedure and which could affect the result of a procedure, thus hindering fair competition. Activities defined as having a direct character (of participation in activities related to preparation of a procedure) are enumerated in Art. 29-38 PPL and include in particular: preparing the deion of the object of a contract, evaluating the estimated value of a contract, preparing the specification of essential conditions of a contract and clarifying the contents of the specification.

One must note that a contractor exclusion clause from Art. 24(2)(1) PPL is not applicable to the situation in which a contractor performed activities which were directly related to preparation of a procedure but his/her participation in a public procurement procedure did not hinder fair competition.

It can be concluded that, according to the views expressed in the judgment delivered by the National Chamber of Appeal, assistance in preparation of a tender procedure can be grounds for excluding a contractor only when a contractor's participation in a procedure would hinder fair competition.

Marita Pelszyk, lawyer


Collateral in the form of securities

The Ordinance of the Minister of Justice of 31st May 2012 on collateral in the form of securities in enforcement proceedings regulates providing collateral in the form of certificated securities (documents), such as shares, bonds, bills of exchange, checks, as well as uncertificated securities which are registered in a securities account.

In the situation in which collateral is provided in the form of certificated securities, the ordinance obliges a bailiff to deposit securities accepted as collateral in a bank and, subsequently, to draw up an acceptance protocol. The protocol is drawn in order to identify financial instruments and a bank in which they have been deposited. The ordinance also places a bailiff under an obligation to notify an issuer and a drawee of a security because of a substantial bond which exists between a person who provides collateral and these entities.

On the other hand, collateral in the form of uncertificated securities is established by blocking securities on an account which provides collateral. Securities are blocked by giving an order to block them for an indefinite period and pointing to the reason why such an order is made. In his/her order, a person providing collateral obliges an entity holding an account to refrain from carrying out orders to sell or transfer securities which form collateral.

According to the new regulations, a person providing collateral is issued a certificate of blocked securities by an entity which holds an account and, subsequently, presents such a certificate to a bailiff. Securities are unblocked after a court decision to release collateral has become binding and after this decision has been attached to a relevant order made by a person providing collateral.

The ordinance came into force on 9th June 2012. The need to create new regulations is justified by the amendment to the Civil Procedure Code which allows to provide collateral in the form of securities.

Marita Pelszyk, lawyer


 

Internet Reference System of Judged Cases

On 1st August, the Internet Reference System of Judged Cases was launched for all appeal courts in Poland. It is supposed to enable the society to realize the constitutional right to control the judiciary. Thanks to the system, which is accessible without any registration, citizens have a method to familiarize themselves with jurisprudence on regulations or factual circumstances which they are interested in. The system is also expected to enhance transparency of work performed by courts, which will now need to take into consideration the possibility of verifying the effects of their work and comparing their judgments with former judgments on similar cases in terms of so-called uniformity of judicial decisions.

Of course, judgments are put on the Internet only after they have been "anonymized." It means removal of all names, proper names, addresses and other data which could enable the identification of participants in proceedings. Anonymization is used to protect not only personal data, but also bank or trade secrets.

It is very easy to find a judgment in the system, which offers 3 methods of searching:
- simple, in which a judgment is found through a phrase or a case number,
- advanced, in which it is possible to define dates, a court department or a legal basis of a judgment,
- through topic entries, which allows a user to choose a particular topic and find all related judgments.

The website on which the browser is available (http://orzeczenia.ms.gov.pl/) will surely receive positive reviews from its users as it is easy to navigate and use.

At the moment, which is a little over a month after the system was launched, data bases which make up the system leave a lot to be desired in terms of updates. As of the writing of this article, the Warsaw data base contained 41 judgments while the Poznań one gave access to 3 judgments.

It can be said that the creation of the Internet Reference System of Judged Cases is a significant step towards making the work of  Polish courts accessible to citizens. However, there is still a long way to go before all interested parties can, on their own, familiarize themselves with detailed information on decided cases.

Rafal Salata, lawyer



This Newsletter is for general informational purposes only. It is not intended and shall not be treated as professional advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.

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