Lawmaking in the Chamber of Appeal

This morning, in the Polish Business Insider I read the provoking piece of news: “A precedent judgment of the National Chamber of Appeal. Huge consequences for the market.” We learn that the Chamber (KIO), a body deciding in public procurement cases, stated that a tender that was scanned and appended with an electronic signature does not meet the requirement of a digital form (and, therefore, is not an electronic document). KIO recommends preparing tenders in electronic form and then appending an electronic signature to a tender prepared fully on a computer device.

Business Insider quoted fragments of an article by Sławomir Wikariak from Dziennik Gazeta Prawna – I put here a link to that publication, not to the Business Insider entry which I am referring to below.

Polish legal system is not based on precedents. The precedent is spoken of in every day communication, the word has become familiar probably through exposure to English-speaking culture (common-law countries respect the law of precedents which basically comes down to giving the courts the right to create law in response to actual cases heard before them). We use the term “precedent” referring to judgments which for some reason surprise us. This does not mean, however, that such judgments form a precedent, understood as a source of law because, in our legal system, law is not created by courts.

Usually, in the context of the discussion about the sources of law, we invoke the Constitution of the Republic of Poland, where sources of law are known to be listed. These include statutory sources, such as the statutes. Lawyers know, however, that the subject is more complex because the actual sources of law include more than what the Constitution indicates. The issue with the understanding of the sources of law, however, is not only dogmatic and academic; the headline from the Business Insider clearly reminds about it. Someone less familiar with the rules of the Polish legal system may think that the National Chamber of Appeal (ie, nominally, not even a court), and maybe even some judges (in contrast to a court) created a new law and it came as a surprise. Meanwhile, after a closer look at the case (KIO judgment of 5 January 2018, case No. KIO 2611/18), we would see that the Chamber applied statutory law which was further clarified by the Polish Public Procurement Office. It is not so much that the law was created by the Chamber, but rather the Chamber decided to go against the common practice in applying the new law introduced by Sejm.

The question now is whether the term “precedent” to law that “surprises” us does not create a problem. The fact is that too much new law is being created in Poland, it is done much too quickly, against limited absorbency on the part of citizens (this – fully justified and common-sense), against the deteriorating quality of the law, contrary to the legislative rules, and more often enacted in circumstances leaving much to be desired with respect to the standard that the Polish Parliament has known in the past. The judges do not cause the “surprise”. They do not create a precedent, they do not change law, they do not create it. However, they are at the forefront of adapting citizens to change. They, therefore, can cause a response such as panic around nullified tenders. The disapproval of chaos caused by law introduced too quickly or otherwise faulty due to its content or the process of its creation (for example, vacatio legis period being too short) may instead fall on them.

I would venture to say that the courts should be able to create the law. The “power of authority” which judgments of our higher courts enjoy, even though such judgments are commonly referred to, is not enough. Since the courts deal with the application of law every day and see its consequences, they understand its importance and influence on people, society and the economy much better than politicians. Judges are closer to the citizens and they should keep that role, instead of approaching the government and the Parliament. I would prefer to be surprised with precedents, changes in the law introduced in response to actual cases – in other words, life itself – that be surprised with new laws. Currently, however, such headings (as quoted at the beginning) are misleading.

[the above publication is covered by CC BY license]