OGÓREK v. POLAND
Inadmissible
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
1. The applicants, Mr Krzysztof Ogórek and Mr Karol Ogórek (the applicants”), are Polish nationals, who were born in 1929 and 1928 respectively and live in Tarnów Opolski. They were represented before the Court by Mr J. Forystek, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Before the Second World War the applicants’ father, Paweł Ogórek, owned a limestone plant which operated under the name “Limestone Plant Ogórek and Co.” (Zakłady Wapienne Ogórek i Spółka). The company also had a German name “Kalwerke Ogórek et Co.” It was run by the applicants’ father before and during the war, until 1945. In 1945 the plant consisted of two furnaces, one limestone plant, a smithy, an outhouse, office premises and 32 hectares of land, which included limestone deposits. 4. On 14 June 1948 the plant was nationalised by virtue of the Minister of Industry and Commerce’s (Minister Przemysłu i Handlu) decision (“the 1948 decision”) issued pursuant to section 3(1) and (5) of the Law of 3 January 1946 on the nationalisation of basic branches of the State economy (Ustawa o przejęciu na własność Państwa podstawowych gałęzi gospodarki narodowej) (“the 1946 Act”). The decision was published in the Cabinet’s Official Gazette (Monitor Polski) no. 58 of 26 June 1948 and took effect on that date. It was issued together with an annex listing companies, including the one belonging to the applicants’ father, which were subject to nationalisation and stipulated that “... enterprises listed in the annex thereto shall be taken over by the State in return for compensation”. 5. On 30 December 1990 the applicants asked the Minister for Economy (Minister Gospodarki) to declare the 1948 decision null and void. 9. On 30 July 2007 the Minister for Economy declared null and void the 1948 decision, finding that it had been issued in flagrant beach of the law since at the material time there had been no legal basis for the nationalisation of the applicants’ property. In the course of the proceedings, the authorities obtained expert reports determining the enterprise’s potential employment capacity on one shift vis-à-vis the technical equipment and its condition at the material time, bearing in mind war damage. It emerged from those reports that the plant had been partly destroyed and its potential production capacity had been severely limited due to the lack of electricity. This, in turn, justified the conclusion that its real employment capacity at the material time had been not more that 42 people on one shift, not from 70 to 213 as estimated for the purposes of the 1948 decision. Consequently, nationalisation of the plant had been unlawful as, pursuant to section 3(1) B of the 1946 Act, it could only be effected in respect of enterprises employing a minimum of 50 persons on one shift. 10. On 6 August 2007, relying on the above decision, the applicants asked the Minister for Infrastructure to annul the decision validating the acceptance protocol on taking over the nationalised property (orzeczenie o zatwierdzeniu protokołu zdawczo-odbiorczego), issued by the Minister for Construction and Building Materials Industry (Minister Budownictwa i Przemysłu Materiałów Budowlanych) on 29 November 1961. 11. Since no action had been taken for some 17 months, on 21 January 2009 the applicants lodged a complaint with the Warsaw Regional Administrative Court, alleging inactivity on the part of the Minister for Infrastructure. 12. On 23 February 2009 the Minister for Infrastructure declared the contested decision null and void, concluding that it had been issued in flagrant breach of the law because it had been based on the 1948 decision found to have been ab initio unlawful. 13. On 11 February 2003 the applicants issued the Prime Minister a legal notice, summoning him to “remove the state of infringement of a law” (wezwanie do usunięcia naruszenia prawa) by enacting the Cabinet’s ordinance ensuring the proper implementation of the 1946 Act within 30 days from the date of service of that notice. The applicants relied on section 7 of the 1946 Act, by virtue of which a Cabinet’s ordinance was to be issued in order to determine the rules governing the calculation and means of payment of compensation for nationalised property (see also paragraphs 39-40 below). They stressed that, despite the fact that although by that stage 57 years had elapsed from the date of entry into force of the 1946 Act and despite the State’s legal duty to implement fully its provisions, the Cabinet had not yet enacted the ordinance, thus making it impossible for the former owners to receive the promised compensation. They further maintained that the State authorities’ failure to act amounted to a constitutional tort (delikt konstutucyjny) in the form of a legislative omission (zaniechanie legislacyjne) – for which both the former Prime Ministers of Poland and the current one had been responsible. Simultaneously, the applicants summoned the Prime Minister to pay them compensation in an amount of 30,000,000 Polish zlotys (PLN) for the nationalised plant, together with statutory interest from 1 July 1949 (one year after the 1948 decision had taken effect) until the date of settlement. 14. On 26 February 2003 the Prime Minister’s Chancellery, in its reply to the applicants’ notice, stated, among other things, the following: “In connection with [your legal notice] and acting on the Prime Minister’s instruction, I should inform you that there is no legal basis for the issuance of the ordinances referred to in sections 6 and 7 of the 1946 Act by the Cabinet. ... The statutory authorisation (upoważnienie ustawowe) to issue ordinances referred to in section 7(4) and (6) [of the 1946 Act] sets out a range of matters for regulation. These are: the composition of the [compensation] commission, the rules for the appointment of its members, the quorum, the rules of procedure before the commission, the rules for appeals against its decisions, the assessment of circumstances relevant for compensation, the means of payment of compensation and determination of the amortisation of securities. It must be noted that the enactment of ordinances governing most of the above matters would be incompatible with the laws applicable at present. ... The matters regulated by [the 1946 Act] and [to be regulated] by the prospective ordinances relate to the constitutional right of property, a matter which is particularly designated for regulation in the form of a statute. It is therefore doubtful that any statutory authorisation to issue an ordinance could transfer [to the Cabinet] the entirety of the matters included in the authorisation, the more so as there are already in place and in force statutory provisions enacted after the entry into force of [the 1946 Act]. Issuing today, on the basis of this Act, ordinances under its section 7(4) and (6) could lead to the incompatibility of statutory solutions (subsequent to the Act) with ordinances. ... [P]ursuant to Article 92 § 1 of the Polish Constitution, ... the enactment of an ordinance is admissible only on the basis of a detailed authorisation included in a statute and in order to implement that statute. This authorisation must be of a detailed nature in terms of the subject (must state an authority competent to issue an ordinance), the object (must state the range of matters delegated for regulation) and its content (must state the directions as to the content of an [ordinance]).... Pursuant to the Constitutional Court’s case-law, the absence of directions is sufficient to consider the authorisation unconstitutional, even if the remaining requirements are met. ... First of all, the matters delegated in the [relevant] authorisation should have been addressed in [the 1946 Act] itself. The matter left by the legislature for regulation by ordinances (e.g. the procedure for the appointment of members of the commission, the procedure for appeals, the amortisation of securities, questions of compensation) are of such importance for an individual and his or her constitutional rights and guarantees that they cannot be regulated by any means other than a statute. ... Moreover, the statutory authorisation in [the 1946 Act] does not contain directions. In sum, it should be concluded that in the light of the above arguments, it would not be legally admissible to issue the Cabinet’s ordinances on the basis of section 7(4) and (6) of [the 1946 Act].” 15. On 11 March 2003 the applicants lodged a complaint under the provisions of the law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) (ustawa o Naczelnym Sądzie Administracyjnym), alleging inactivity on the part of the Prime Minister in that the Cabinet had failed to issue an ordinance enabling the full implementation of the 1946 Act. This, in their submission, was in breach of several provisions of the Constitution. 16. On 21 May 2003 the Supreme Administrative Court rejected the complaint as being inadmissible in law. It stated that under the applicable laws its scope of jurisdiction over the State authorities’ actions or inactions was limited to their duties with respect to public administration and did not encompass any control of their competence in the sphere of the issuing of normative acts. 17. On 27 June 2003 the applicant’s lodged a constitutional complaint against the Supreme Administrative Court’s decision of 21 May 2003. They challenged the constitutionality of section 16(1) (1)-(4) of the 1995 Act in so far as this provision denied them access to a court to seek compensation granted under the 1946 Act, in particular as it excluded the possibility of lodging a complaint about the inactivity of the Prime Minister, i.e. the legislative omission consisting in the failure to enact the relevant ordinance, as required by the 1946 Act. They further asked the Constitutional Court to declare unconstitutional section 7(1) (6) of the 1946 Act, in so far as it left to the Cabinet full discretion as to the date of payment and detailed procedure for compensation and thereby deprived them of access to a court in order to seek compensation for their nationalised property. Alternatively, they asked the court to declare that 7(1) (6) of the 1946 Act was an illusory provision and as such could not be considered part of the legal order and, on the basis of this declaration, to discontinue the proceedings in this part. They invoked, in particular, Article 2 (rule of law), Article 21 (protection of ownership), Article 45 (right of fair trial), Article 64 (right of ownership) and Article 77 (right to compensation for unlawful action of public authority) of the Constitution and Article § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. 18. On 8 September 2004 the Constitutional Court discontinued the proceedings. As regards the first limb of the complaint, it ruled so on account of the fact that section 16(1) (1)-(4) of the 1995 Act had lost its binding force. As regards section 7(1) (6) of the 1946 Act, it discontinued the proceedings holding that ruling on the merits of this part of the complaint was inadmissible in law. In particular, it held that it could not review the constitutionality of section 7(1) (6) of the 1946 Act since, pursuant to Article 79 § 1 of the Constitution, a constitutional complaint could only be directed against provisions on the basis of which the courts or administrative authorities gave a final decision on rights, freedoms or obligations of the complainant. The contested provision was not a legal basis for the final decision examined by the Constitutional Court. Accordingly, it was prevented from dealing with the merits of this part of the complaint. 19. On 20 October 2004 the applicants asked the Prime Minister to ensure the enactment of an ordinance for the proper implementation of the 1946 Act by the Cabinet or, alternatively, in case of his refusal to do so, to issue an individual, appealable administrative decision refusing to see to the enactment of that ordinance. 20. On 20 November 2004 the Prime Minister gave a decision discontinuing the proceedings, relying on section 105 § 1 of the Code of Administrative Procedure (Kodeks postępowania administracyjnego) by virtue of which an administrative authority should discontinue proceedings if, for any reason, they had become devoid of purpose. In essence, the reasoning was two-fold. First, the Prime Minister found that it was inadmissible in law to regulate the public authorities’ normative activity by means of administrative decisions. Such decisions could be given only in the context of the application of the law, whereas normative acts were created in the completely distinct sphere of lawmaking. Secondly, the public authorities’ normative activity was their exclusive and, at the same time, sovereign competence and there were no grounds for interfering with this activity because, in his view, it would infringe the fundamental constitutional principles of the division of powers and the rule of law, as well as the competences of the constitutional authorities of Poland, namely the Cabinet. 21. The applicants asked for the matter to be reconsidered. On 11 January 2005 the Prime Minister upheld the contested decision, reiterating that the issues raised by the applicants could not be addressed by an individual administrative decision. 22. The applicants appealed to the Warsaw Regional Administrative Court. 23. On 12 August 2005 the court heard, and dismissed, the appeal. It upheld the grounds given in the previous decisions, holding that an administrative decision could be issued only in an individual case concerning a specific person and his or her concrete rights or obligations but not to compel an authority to enact a normative act, which in a general and abstract way regulates the legal situation of an unqualified number of persons. It also held the following: “It should be stressed that the Supreme Court’s case-law underlines that the Cabinet’s failure to discharge its duty arising from its competence to enact an ordinance ensuring the proper implementation of a statute infringes the constitutional principles of the functioning of a democratic state ruled by law (Articles 2 and 7 of the Constitution) and, accordingly, may constitute a constitutional tort. ... This court is of the opinion that the proper judicial protection of the applicants’ interests is secured in the provisions of the Civil Code. Article 4171 of the Code invoked in the appeal makes it possible [for them] to seek damages caused by the legislative omission of the State Treasury.” 24. The applicants lodged a cassation appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny), alleging a number of procedural shortcomings on the part of the first-instance court and the Prime Minister and a breach of Article 77 of the Constitution in that the contested decisions had prevented them from pursuing their claim for damages arising from the state authorities’ unlawful acts – most notably their failure to enact the ordinance implementing fully the 1946 Act. On 8 November 2006 the Supreme Administrative Court dismissed the appeal as lacking any legal basis. 25. On 8 September 2003 the applicants sued the State Treasury, statio fisci the Prime Minister, before the Warsaw Regional Court (Sąd Okręgowy) for unpaid compensation for the nationalised company. They sought PLN 30,000,000 in damages, with statutory interest from 1 July 1949 until settlement, and PLN 24,000 by way of costs and expenses. They relied on Article 77 of the Constitution and Article 417 of the Civil Code as applicable on that date (see paragraphs 41-44 below). 26. On 8 June 2004 the court gave judgment in default and granted the applicants’ claims in their entirety. 27. Following the defendant’s opposition, the case was reconsidered by the Regional Court. The defendant asked the court to quash the judgment in default and to dismiss the applicants’ claims. 28. On 9 December 2004 the applicants modified their claim for payment of statutory interest, seeking payment only from 1 September 2004 until the date of settlement. 29. On 21 February 2005 the court summoned the Minister for the Treasury to take part in the proceedings as the second defendant. 30. In their pleading of 2 March 2006 the applicants altered the legal basis for their claims, stating that as those claims were based on a legislative omission on the part of the authorities consisting in their failure to enact an ordinance pursuant to section 7(4) and (6) of the 1946 Act, they should be based on Article 4171 § 4 of the Civil Code, which entered into force on 1 September 2004 (see paragraphs 42-43 below). 31. On 14 March 2006 the Regional Court quashed the judgment in default. It dismissed the applicants’ claims for PLN 30,000,000 in damages and for costs and discontinued the proceedings in respect of their claim for payment of statutory interest. The reasoning for the judgment was in essence based on the Supreme Court’s resolution of 24 November 2005 (cited below, see paragraphs 45-47 below). It read, in so far as relevant, as follows: “There is no dispute [between the parties] over the facts of the case ... The dispute is limited solely to [the question] whether the claims brought in this case are wellfounded in the light of the factual and legal bases relied on by the plaintiffs and to the amount of [compensation]. ... Considering the legal and factual basis invoked by the plaintiffs, their claims should be dismissed. Section 7 of the 1946 Act, on which they rely, in its original version provided that an owner of an enterprise taken over by the State would receive compensation from the State Treasury within 1 year from the date on which a notice of final determination of the amount of compensation due had been served on him. Such compensation was to be paid in securities, although in exceptional circumstances also in cash or other values, and its amount was to be determined by special commissions. ... Pursuant to section 7(4) and (6) the composition of the commissions, the rules for the appointment of their members, the quorum, the rules of procedure and rules for appeals against their decisions and the detailed rules for the calculation of compensation and means of its payment and depreciation of securities were to be determined by the Cabinet’s ordinance. Despite [this] statutory authorisation, the above-mentioned ordinance (the failure to enact it, which was to be the cause of the loss sustained by the plaintiffs) has never been enacted which, in consequence, made it impossible [for the authorities] to establish the relevant commissions and to set up the procedure for the determination of the amount of compensation and its payment. Accordingly, this legislative omission, which has been relied on by the plaintiffs as the cause of their loss, occurred in 1946 or, at the latest in 1947, assuming that in general the absence of any time-limit for the enactment (a specific action) is tantamount to a duty to enact an act implementing the law without undue delay. This opinion is supported by [the fact] that at the material time the Cabinet issued ordinances implementing other provisions of the 1946 Act. The same point of view was expressed by the Supreme Court in a resolution of 24 November 2005 ...[;] this court shares this point of view, and the applicants, when justifying their claims, have so far done the same. The provisions of the civil law as applicable at the material time, preceding the entry into force of the Civil Code, did not provide for the State Treasury’s liability for legislative activity [or inactivity] of its agents. This situation did not change after the entry into force of the Civil Code on 1 January 1965, providing, in its Articles 417 and 418, for the State Treasury’s [tortious] liability, the scope of which did not encompass the State authorities’ legislative activity. ... By the same token, it cannot be assumed that the defendant’s civil liability for the consequences of the so-called legislative omission is based on Article 417, which, in contrast to what the plaintiffs tried to plead, does not embody the State’s legislative activity. This situation did not change radically on 17 October 1997, the date of entry into force of the new Constitution which, in Article 77 § 1, proclaimed the right to compensation for any harm caused by an act of a public authority in breach of the law and the possibility of its direct application. While the above-mentioned provision of the Constitution undoubtedly refers to civil liability including the State authorities’ normative activity ..., this liability cannot be taken in the abstract from regulations concerning civil claims laid down in the Civil Code and specific statutes and, accordingly, cannot be an autonomous legal basis for this kind of claims. ... In view of the foregoing, the plaintiffs’ claims cannot be justified under Article 77 § 1 of the Constitution. ... Article 4171 of the Civil Code, introduced ... on 1 September 2004 and invoked by the plaintiffs could be a legal basis for their claim. This provision includes the defendant’s civil liability for the consequences of the socalled legislative omission in case of a failure to enact a normative act, where there is a statutory duty to do so. However, pursuant to section 5 of [the relevant law amending the Civil Code], setting out the temporal scope of the operation of [Article 4171], excludes the possibility of its application to events and situations that occurred before the date of its entry into force, requiring [the courts] to apply in that regard the hitherto applicable provisions, including Article 417, which was repealed by that law. It should therefore be concluded that both Article 417 and Article 4171 of the Civil Code read in conjunction with Article 77 § 1 of the Constitution cannot be legal bases for granting the plaintiffs’ claims. ...” 32. The applicants appealed to the Warsaw Court of Appeal (Sąd Apelacyjny). On 5 December 2006 the appeal was dismissed. 33. On 8 April 2009 the applicants sued the State Treasury staciones fisci the Minister for Economy and the Minister for Infrastructure before the Warsaw Regional Court, seeking damages arising from the nationalisation of the limestone plant. They sought 26,000,000 Polish zlotys (PLN) each and the costs of the proceedings. Later, they limited the claim to PLN 16,756,228.50, an amount corresponding to the damage as determined by experts appointed by the court. This sum included PLN 12,634,426.05 for damage caused by exploitation of the limestone deposits by the State and PLN 3,895,607.25 for damage caused by nationalisation of the enterprise’s buildings, machines and technical equipment. 34. On 20 June 2011 the Regional Court, relying on Article 160 §§ 1 and 2 of the CAP granted the applicants’ claim in its entirety. It awarded each applicant PLN 8,378,114.25 (i.e. the whole amount jointly claimed) with interest from 21 June 2011 and PLN 2,228 for the costs incurred. The court held that there was no doubt that the applicants had sustained loss that should be compensated by the State. That loss consisted in the value of the plant on the date of its nationalisation, the value of the limestone deposits exploited by the State and the costs involved in the rehabilitation of the nationalised land. 35. The State Treasury appealed against the judgment 36. The case was heard by the Warsaw Court of Appeal on 28 February 2012. The court fully upheld the Regional Court’s findings of fact and law and its assessment of evidence. It gave partial judgment. It rejected the defendant’s appeal in so far as it concerned compensation for the value of the enterprise’s buildings, machines and technical equipment and upheld the award in this respect, granting each applicant PLN 1,947,803.62 (i.e. a total sum of PLN 3,895,607.24). This ruling is final. The Court of Appeal postponed the examination of the remainder of the claim (compensation amounting to PLN 12,634,426.05 for damage caused by exploitation of the limestone deposits by the State). In that respect, it decided to obtain a fresh expert report in order to determine the value of the loss actually sustained. The expert was appointed on 12 July 2012. The proceedings are pending. 37. Following the establishment of the communist regime in Poland nearly all branches of industry, as well as banking, insurance, transport and commercial companies were taken over by the State under the 1946 Act which, in its section 1, stated the purposes of nationalisation as follows: “ In order to ensure the planned rebuilding of the state economy, the economic sovereignty of the State and to foster the general well-being, the State shall take over ownership of enterprises on the conditions laid down in this law.” Pursuant to section 2(1), only those industrial, mining, transport, banking, insurance and commercial enterprises that belonged to the Third Reich and the former Free City of Gdańsk, their citizens (except for those of Polish or other nationality who had been persecuted by the Germans), German and Gdańsk legal persons (except for those set up under public law), companies controlled by German or Gdańsk citizens or administration or those owned by persons who had defected to the enemy were to be taken over by the State without payment of compensation. 38. Section 3(1) of the 1946 Act (as amended) states that the owners of the remaining enterprises were to be compensated for their nationalised property. That provision reads, in so far as relevant, as follows: “1. The State shall compensate [the owners] for taking over ownership of the following: A. Mining and industrial enterprises in the following sectors of State economy: 1) mines and mining leases subject to mining law; 2) oil and gas industry, including mines, refineries, gasoline production and other processing plants, gas pipes and synthetic fuel industry; 3) companies that generate, process, transmit or distribute electricity ...; 4) companies that generate, process, transmit or distribute gas ...; 5) water supply companies serving more than one municipality ...; 6) steelworks and non-ferrous metals smelting plants; 7) armaments, aviation and explosives industry; 8) coking plants; 9) sugar factories and refineries; 10) industrial distilleries, spirit refineries and vodka production plants; 11) breweries with an annual output exceeding 15,000 hectolitres; 12) yeast production plants; 13) grain plants with a daily output exceeding 15 tons of grain ...; 14) oil plants with an annual output exceeding 500 tons and all refineries of edible fats; 15) cold stores; 16) large and medium textile industry; 17) printing industry and printing houses; ... B. Industrial enterprises not listed in subsection “A” if they are capable of employing in the production more than 50 persons on one shift. ... C. 1) Transport enterprises (standard gauge and narrow-gauge railways, electric railways and aviation transport enterprises); 2) communication enterprises (telephone, telegraph and radio enterprises). 39. Section 7 lays down general principles for compensation to be paid for nationalised property. It states, in so far as relevant, as follows: “1. The owner of an enterprise whose ownership has been taken over by the State (section 3) shall receive compensation from the State Treasury within one year from the date on which a notice of final determination of the amount of compensation due has been served on him. 2. Such compensation shall in principle be paid in securities; however, in exceptional and economically justified cases it may also be paid in cash or other values. 3. The amount of compensation due shall be determined by special commissions. The persons concerned shall have the right to participate in proceedings before those commissions. If need be and in any case if so requested by the persons concerned, the commission shall appoint appropriate experts. 4. The composition of the commissions, the rules for the appointment of their members, the quorum, the rules of procedure before the commissions and rules for appeals against their decisions shall be determined by an ordinance issued by the Cabinet. 5. The following factors shall be taken into account in determining compensation: a) general deterioration of the value of State property; b) net value of the corporate property on the date of nationalisation; c) deterioration of the value of the enterprise cause by war losses or losses incurred by the enterprise in connection with the war, occupation in the period from 1 September 1939 to the date of nationalisation; d) value of expenditures made after 1 September 1939; e) special circumstances affecting the value of the enterprise (concession terms, licenses etc.). 6. A Cabinet’s ordinance shall determine detailed rules governing the calculation of compensation, assessment of the circumstances listed in subsection 5 and means of payment of compensation (subsection 2) and depreciation of securities.” 40. Pursuant to section 10, the Cabinet and the relevant Ministers shall be entrusted with the implementation of the 1946 Act. However, since 5 February 1946, the date of entry into force of the 1946 Act, until the present day the Cabinet has not yet issued an ordinance on the organisation of the compensation commissions and determination of compensation referred to in section 7(4) and (6). 41. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.” 42. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. The relevant amendments were in essence aimed at enlarging the scope of the State Treasury’s liability in tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and provision being made for the State’s tortious liability for failure to enact legislation, a concept known as “legislative omission” (zaniechanie legislacyjne). 43. Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows: “4. If damage has been caused by failure to enact a law [akt normatywny] where there is a statutory duty to do so, the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for damages.” However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 applies to all events and legal situations that subsisted before that date. 44. The concept of the State’s civil liability for a constitutional tort was introduced into the Polish legal order on 17 October 1997, the date of entry into force of the 1997 Polish Constitution. Article 77 § 1 of the Constitution states, in so far as relevant, as follows: “Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law.” 45. In its resolution of 24 November 2005 (“the 2005 Resolution”), the Supreme Court (Sąd Najwyższy), sitting as a bench of three judges, dealt with the following legal questions submitted to it by the Warsaw Court of Appeal (Sąd Apelacyjny): “ Is the State Treasury liable for damage caused by failure to enact a law [akt normatywny] if the duty to enact that law, laid down in section 7(4) and (6) of [the 1946 Act] was not fulfilled until the date of entry into force of [the 2004 Amendment], and, if so, When this duty should have been performed and whether damages for failure to enact the above law corresponds to unreceived compensation for the enterprise nationalised by the State, determined in accordance with the principles laid down in section 7(2) and (5) of [the 1946 Act]?”. The question arose in the context of a case brought by a certain E.K., who sought damages for the nationalisation of her family’s printing house and, as one of the basis for her claim, invoked Article 4171 of the Civil Code, relying on the State’s legislative omission consisting in its failure to issue the relevant ordinance. 46. The Supreme Court’s answer in the operative part of the resolution reads: “Until the date of entry into force of [the 2004 Amendment] the Cabinet’s failure to issue an ordinance foreseen in section 7(4) and (6) of [the 1946 Act] did not constitute a basis for a claim by an owner of the nationalised enterprise for damages arising from [nationalisation].” 47. The resolution contains extensive reasoning, the main thrust of which reads as follows: “[As regards the time-frame for the issue of the ordinance]. The determination of the beginning of that situation carries with it a certain element of arbitrariness since [the 1946 Act] does not lay down any term within which the ordinance referred to in section [7] (4) and (6) should be issued. Assuming that in general the absence of a term is tantamount to a duty to enact a law without undue delay, it can be considered that the discharge of the statutory authorisation, assuming the existence of willingness of the authorised body (the Cabinet) should have taken place in 1946 or in 1947 at the latest. This is supported by the fact that the Cabinet issued ordinances implementing other provisions (including section 2(7) of the Act, a fundamental provision for the interest of the State). [As regards the State’s civil liability for legislative omission], ... it should be concluded that before the entry into force of the 1997 Constitution the State had not been liable under civil law for the consequences of its legislative inactivity. ... 17 October 1997, marking the entry into force of the Constitution is the relevant date as its constitutes the beginning of the existence in the legal order of, inter alia, Article 77 § 1 of the Constitution, proclaiming the right of “everyone” to compensation for any harm done to him by any act of a public authority in breach of the law .... Assuming that Article 77 § 1 does not contain a provision making it possible to draw from it a direct basis for a claim for damages for the legislature’s inactivity, it must be said that the rules for the State’s liability in the sphere of law-making should be established by means of an ordinary statute, determining in a more detailed manner than Article 77 §1 premises for an effective claim. ... Article 4171 § 4 of the Civil Code, as introduced by [the 2004 Amendment] satisfies the requirement of detailed premises. The relevant temporal consequences have been clearly set out in its section 5, evidently indicating the prospective operation of Article 4171 § 4 of the Civil Code. A formulation laying down a non-retroactive character of the provision is telling in that it refers to “events and legal situation that subsisted before its entry into force” ... In consequence, the assessment of the effects of legislative omission subsisting before 1 September 2004 was governed by [earlier provisions]. The relevant Article 417, in its version before the amendment, did not include legislative omission as it was based on a completely different premise, namely, the absence of the State’s civil liability for the legislature’s acts. ... “ 48. On 5 December 2007 the Supreme Court, sitting as a bench of three judges, dealt with a cassation appeal (kasacja) lodged by Lubelska Fabryka Maszyn i Narzędzi Rolniczych “Plon”, a limited liability company which was at that time subject to a winding-up procedure. The appellant contested the judgment of the Warsaw Court of Appeal of 2 February 2007, rejecting its appeal (apelacja) against the judgment of the Warsaw Regional Court of 30 May 2006 whereby its claim for damages arising from the State’s failure to issue the relevant ordinance, pursuant to section 7(2) and (5) of the 1946 Act, had been dismissed. The claim was based on Article 77 of the Constitution and Articles 417 and 4171 § 4 of the Civil Code. In dismissing the cassation appeal, the Supreme Court essentially reiterated the grounds stated in the 2005 Resolution (see paragraph 25 above), stressing that the impugned legislative omission occurred in 1946 or, at the latest in 1947 and since then had continued. However, Article 77 § 1 of the Constitution could not be considered a legal basis for a claim deriving from an “omission” by public authorities since that provision clearly covered only their “acts”. The provision of Article 4171, enabling a plaintiff to seek damages for legislative omission, had been introduced only on 1 September 2004 by virtue of the 2004 Amendment. The terms of section 5 of the Amendment 2004 were unambiguous: Article 4171 of the Civil Code did not apply to events and situations that had subsisted before its entry into force. Consequently, its operation was excluded in respect of legislative omissions that originated in facts that had occurred earlier, even if this state of affairs continually existed until the present day. 49. On 13 June 2011 the Constitutional Court (Trybunał Konstytucyjny) heard a constitutional complaint lodged by a company Elektrownia w Kielcach spółka akcyjna, challenging the constitutionality of section 5 of the 2004 Amendment in so far as it excluded the application of Article 4171 of the Civil Code to situations that had subsisted before the entry into force of that Amendment, i.e. 1 September 2004 (see also paragraphs 20-26 above). The claimant invoked, in particular, Article 77 § 1 of (right to compensation for unlawful action of public authority) read in conjunction with Article 2 (rule of law), Article 64 §§ 1 and 2 (right of ownership) read in conjunction with Article 21 §§ 1 and 2 (protection of ownership) and Article 32 § 1 (equality before the law) and Article 45 § 1 (right of fair trial) of the Constitution. Before lodging the complaint, the company, which had been nationalised under the 1946 Act, unsuccessfully sought compensation for the Prime Minister’s legislative inactivity in that he had failed to enact an ordinance on rules for compensation as required by the 1946 Act. On 4 April 2008 the claim was finally rejected by the Warsaw Court of Appeal on the grounds stated in the 2005 Resolution (see paragraphs 23-25 above). The Constitutional Court’s decision (no. SK 26/09), in its relevant part, reads as follows: “4.7. ... Consequently, in the light of the provisions of the Constitution it is difficult to assume that non-fulfilment of the duty to enact an ordinance on compensation for nationalised property derived from [the 1946 Act] amounted to “[an] act of a public authority in breach of the law” linked with the State’s liability for [constitutional] tort under the Constitution. Even assuming that the state of legislative omission still persists, it should at the same time be concluded that the duty is non-enforceable. Thus, it is evident that on the basis of the applicable laws only a statute could regulate compensation for the claimant’s nationalised property. ... Accordingly, the Constitutional Court considers that the assumption that a legislative omission “in breach of the law” still continues is unwarranted, in particular after the entry into force of the Constitution, in the light of its standards. ... In the light of the constitutional standards as applicable at present it is difficult to accept that there is any legal force attached to the duty imposed on the Cabinet by section 7 of the 1946 Act. 50. Article 156 § 1 of the Code of Administrative Procedure (“the CAP”) (Kodeks postępowania administracyjnego), which sets out grounds on which a final administrative decision is subject to annulment, states: “1. A public administration authority shall declare a decision null and void if: 1) it has been issued in breach of the rules governing competence; 2) it has been issued without a legal basis or in flagrant breach of the law; 3) concerns a case already decided by means of another final decision; 4) it has been addressed to a person who is not a party to the case; 5) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature; 6) it would give rise to a punishable offence in the event that it has been enforced; 7) it has a flaw making it null and void by the force of law. There is no time-limit for a party’s request to have an administrative decision declared null and void under Article 156 § 1. However, there are situations where, even if certain grounds listed in Article 156 § 1 exist, the lapse of time or irreversible effects of the contested decision have consequences for the formula used in a decision given in the annulment procedure. Article 156 § 2 provides for the following exceptions: “ A decision shall not be declared null and void on the grounds listed in paragraph 1 (1), (3), (4) and (7) if 10 years have expired from the date of its service or promulgation, as well as if the decision has produced irreversible legal effects.” Article 158 reads as follows: “1. A ruling on annulment of a decision shall be given by means of a decision. 2. If it is impossible to declare a decision null and void because of the circumstances referred to in Article 156 § 2, a public administration authority shall only declare that the contested decision has been issued contrary to the law and indicate circumstances because of which it has not declared the decision null and void.” For the purposes of compensation, the effects of declaring the original administrative decision “null and void” or “issued contrary to the law” are the same. 51. Article 160 set out principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in Article 156 § 1. This provision was repealed by the 2004 Amendment with effect from 1 September 2004 (see also paragraphs 42-43 above) and replaced by new Article 4171 § 2 of the Civil Code. However, under section 5 of the 2004 Amendment, which sets out transitional rules, Article 160, in the version applicable on the repeal date, still applies to “events and legal situations” that subsisted before the entry into force of the 2004 Amendment. Article 160, in the version applicable on the relevant date, read as follows: “1. A party who has suffered a loss on account of the issuance of a decision in breach of Article 156 § 1 or on account of annulment of such a decision shall have a claim for compensation for actual damage, unless he has culpably caused the circumstances mentioned in this provision. 2. The provisions of the Civil Code, except for Article 418 [provision repealed], shall apply to [such] compensation. 3. Compensation is due from an authority that issued a decision in breach of Article 156 § 1, unless the other party to the proceedings concerning the decision culpably caused the circumstances mentioned in this provision; in the latter case a claim for compensation shall be directed against the culpable party. 4. A public administration authority that has declared a decision null and void or declared, pursuant to Article 158 § 2, that it has been issued contrary to the law shall rule on compensation due from the authority referred to in § 1. The vindication of compensation from a person who has culpably caused the circumstances mentioned in Article 156 §1, shall be effected before a court of law. 5. A party who is not satisfied with compensation granted by a public administration authority referred to in § 4, may lodge a claim with a court of law within 30 days from the date of service of a decision given on that matter. 6. A claim for compensation shall be time-barred after 3 years from the date on which has become final the decision declaring null and void the decision issued in breach of Article 156 § 1 or decision whereby an authority has declared, pursuant to Article 158 § 2, that the contested decision has been issued in breach of Article 156 § 1.” 52. On 30 March 2011 the Civil Chamber of the Supreme Court, sitting in plenary, gave a resolution (no. III CZP 112/10) on the application of Article 160 of the CAP and rules regarding compensation. The resolution was given in response to legal questions submitted by the First President of the Supreme Court in connection with certain problems and divergences arising in judicial practice, in particular in respect of the temporal effects of Article 160 as determined in section 5 of the 2004 Amendment, the application of Article 4171 § 2 of the Civil Code which replaced Article 160 (see paragraphs 42-43 and 51 above) and rules for adjudicating compensation. The resolution contains an extensive reasoning which, in so far as relevant, may be summarised as follows: 1) Article 160 §§ 1,2,3 and 6 of the CAP applies to all claims for damages arising from an issuance of a final administrative decision given before 1 September 2004, which has been declared null and void or has been declared as being issued in breach of Article 156 § 1 of the CAP. In contrast, paragraphs 4 and 5 of Article 160, setting out the procedure for vindicating such claims, should be considered as no longer applicable. Consequently, a party seeking compensation under this provision should file an action directly with a civil court. 2) Where an annulled administrative decision has been given before the entry into force of the Constitution (17 October 1997), compensation defined in Article 160 of the CAP shall not include loss of profits sustained in consequence of its issuance, even if such loss has occurred after this date. 53. In the years 1990-2005 Parliament dealt with 11 bills on reprivatisation, restitution and compensation for property taken over by the communist authorities under nationalisation laws passed in 19441962. None of them was successfully enacted mostly because fresh elections were called and the work on them had to be discontinued. In the case of the 1999 bill on the restitution of immovable property and certain kinds of movable property taken from natural persons by the State or by the Warsaw Municipality, and on compensation (Projekt ustawy o reprywatyzacji nieruchomości i niektórych ruchomości osób fizycznych przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach – “the Restitution Bill 1999”) the relevant Act of Parliament never entered into force because it had been vetoed by the President of Poland. Each of those bills, although they differed in specific modalities, contained provisions for compensation for nationalisation of property under the 1946 Act. 54. In 2007 the Polish Parliament started the first reading of the Government’s bill on compensation for property or other assets taken over by the State (projekt ustawy o rekompensatach za przejęte przez państwo nieruchomosci oraz inne składniki mienia) (“the 2006 Compensation Bill”). In general, compensation claims were to be subject to a statutory ceiling of 15% of the value of the original property taken over by the State. The claims of the owners of property nationalised under the provisions of the 1946 Act were included in the list of claimants entitled to compensation. The work on the 2006 Compensation Bill was discontinued in September 2007 since snap parliamentary elections were called following the collapse of the government coalition. 55. In 2008 the new Government started preparatory work on fresh restitution legislation, i.e. the “Bill on pecuniary benefits to be granted to some persons who were subject to nationalisation procedures” (projekt ustawy o świadczeniach pieniężnych przyznawanych niektórym osobom, których dotyczyły procesy nacjonalizacji) (“the 2008 Compensation Bill”). 56. The 2008 Compensation Bill provided for no restitution of nationalised properties and was based on the principle of limited compensation, corresponding to a certain – not stipulated in the bill but to be determined in the Minister for Treasury’s future ordinance – percentage of the value of the property in question on the date of its nationalisation. 57. In the Minster for Finance’s report on the assessment of the budgetary impact of the implementation of the 2008 Compensation Bill (drawn up in 2008) the total value of the claims to be covered by the 2008 Compensation Bill was estimated at PLN 100,000,000,000. It was expected that some 80,000 applications for compensation will be submitted under the provisions of the new legislation. The process of the realisation of cash payments was to be spread over the period of 15 years and instalments were to be indexed each year in accordance with the consumer price index. The entry into force of the bill was tentatively foreseen for 2012. 58. In February 2010 the Minister for Finance was asked to make an analysis of the consequences of the implementation of the 2008 Compensation Bill. 59. On 5 March 2010 the Minister for Finance submitted a report stating that if the bill entered into force in 2012, there would be an abrupt increase in the public debt by PLN 18,000,000,000 which would correspond to 1.001.10% of the Gross National Product (GNP). In the circumstances, the allocation of PLN 20,000,000,000 for securing nationalisation claims might result in Poland’s exceeding the permissible limits of the national debt in relation to GNP as set by the European Union. 60. In March 2011 the Minister for Treasury issued a press release on the Ministry’s website, informing the public that the Government had decided not to submit the 2008 Compensation Bill to Parliament. That statement gives the following explanation: “In view of the considerable savings that have been made in recent years, connected with the global financial crisis in many sectors of our social and economic life and the large financial burden resulting from the planned legislation, in the present economic situation, [the 2008 Compensation Bill] cannot be enacted.”