The European Tribunal of Human Rights, by the judgement issued on the 9th of June 2022, upheld the allegations of the claim submitted by the Firm’s Client, and acknowledged that the Regional Court in Kraków and the Court of Appeal in Kraków had violated article 6 § 1 of European Convention on Human Rights and Fundamental Freedoms by restriction of the right to a fair trial.
Both of the Polish courts, i.e. the Court of Appeal and the Regional Court, refused Mr and Mrs Szewczyk (in that moment not represented by the Firm) to be exempted from paying a court fee for the appeal submitted against the ruling of the Regional Court in Kraków, on the basis of which the Court ordered from them the amount of USD 634.254,15, jointly and severally. Mr and Mrs Szewczyk were not able to pay a court fee higher than PLN 10.000 due to their troubled financial situation. Although they declared the ability to pay the fee in the above mentioned amount, the Courts obliged them to incur the cost of PLN 60.000 as a court fee. Since there was no possibility to pay an amount this high, the appeal of Mr and Mrs Szewczyk was not heard (it was rejected as not properly paid for).
The European Tribunal of Human Rights agreed that the refusal of exempting the Firm’s Clients from the court fee was legitimised only by protection of the property interests of the State Treasury. The Tribunal stated that the substance of the justifications of the Courts’ sentences did not imply that the appeal proceedings – that the Firm’s clients intended to launch – had no chances of success.
As it was noticed by the Tribunal, the Courts of both instances assumed a priori that the Firm’s Clients should have taken care to obtain the funds to cover the fee, and thereby the Courts did not consider the Client’s financial situation properly. In consequence, the Tribunal stated that the obligation to cover all the costs of submitting the appeal should be considered a disproportionate restriction of the right to a fair trial.
The Tribunal awarded the Firm’s Client with both due compensation, as well as reimbursement of the costs of the proceeding run by the Tribunal.
File number: 51832/13 Szewczyk and Szewczyk against Poland
]]>The judgment of the Court of Appeal in Warsaw (VII Commercial and Intellectual Property Division) dismissed in its entirety the suit brought by the – now former – collective copyright management organization („CMO“) against the Firm’s Client – another collective copyright management organization.
The Plaintiff claimed in total the payment of nearly PLN 2,500,000 as a part of remuneration collected by the Firm’s Client from manufacturers, importers and reprographic undertakings on the basis of provisions of articles 20 and 201 of the copyright and related rights law, and allegedly not paid to the Plaintiff in the proper amount.
The Court of Appeal fully accepted the Firm’s argument that the loss of the CMO status in the course of the proceedings (which resulted from the withdrawal of the Plaintiff’s collective management license by the Minister of Culture) resulted in Plaintiff’s loss of its legal standing (capacity to sue) and that it was irrelevant when the alleged receivables became due (before or after this loss).
Irrespective of this, the Court of Appeal, like the Regional Court, shared the Firm’s view that the statistical surveys on the share of works represented by CMO in the total of copied works, carried out on behalf of the Firm’s Client by one of the Market and Public Opinion Research Institutes for the last several years, were correct. Therefore no underpayment to the Plaintiff arose.
File number: VII AGa 60/21
]]>The Regional Court in Krakow dismissed an appeal of the participant – a statutory heir – against the decision of the District Court that the inheritance of a deceased natural person had been acquired for the benefit of a German registered association (eingetragener Verein) represented by the Firm. The basis for such a decision was the courts’ finding that the German joint will (the so-called Berliner Testament) was valid. After a nearly 9-year-long litigation the courts of both instances resolved a number of interesting and legally significant, and in this case disputed, issues in favour of the Firm’s Client. One of them was the issue of the nature (formal or substantive) of joint wills in light of the provisions of the convention on the conflicts of laws relating to the form of testamentary dispositions, drawn up in The Hague on 5 October 1961 (the “Hague Convention”). Further issues considered included:
The courts held that, based on the provisions of the Hague Convention, foreign joint wills are also valid under Polish law and may constitute the basis for the acquisition of real estate by foreign legal persons with their corporate seat in the European Union without the necessity of obtaining the appropriate permit from the Polish Ministry of Internal Affairs.
File number II Ca 2245/18.
]]>The Court of Appeal in Cracow overruled the judgment of the Regional Court in favour of the Firm’s Client and has ordered the defendant, a building contractor, to fully reimburse the Firm’s Client for an overpayment (totalling several hundred thousand PLN) made by her on the basis of an oral agreement, whereby the parties merely estimated the costs of a renovation, on account of which the Firm’s Client made certain advance payments, the sum of which exceeded the aggregate costs of the renovation. The Court of Appeal did not accept the defendant’s argument that the statute of limitations applied and that the agreement was a “specified work agreement” (where the limitation period is 2 years under Polish law). The Court of Appeal fully accepted the Firm’s argument that the agreement between the parties be qualified as a contract for renovation and that lack of a pre-agreed design and failure to indicate the exact remuneration in the agreement did not prevent such qualification.
File numer: I ACa 414/20
]]>The Supreme Court recognizes the cassation appeal filed by the Firm in a case concerning the payment of claimed infringement of personal and economic copyrights in connection with publication and use of photographs and drawings without his consent and without identifying him as the author by a Polish publisher. The Court of Appeals in Rzeszów reversed the judgment of the District Court which ruled in favour of the author. Despite the Court of Appeals agreeing with the findings of fact of the District Court it adopted a different legal opinion without stating the legal basis of the judgment. The Supreme Court noticed these breaches and sharing the argumentation of the cassation appeal, revoked the judgment of the Court of Appeal and remitted the case back to the Court of Appeal for reexamination. In the case the courts had to examine not only issues of Polish copyright law, but also the contractual interpretation under German law.
File number I CSKP 129/21
]]>The Supreme Administrative Court dismissed the cassation appeal of the Director for the Office of National Fiscal Information against the judgment of the Provincial Administrative Court in Gliwice which was favourable for the Firm’s client – a foreign university – and which, in turn, overturned the individual interpretation regarding value added tax (VAT). The issued interpretation concerned the university’s status as a VAT payer in Poland, the VAT taxation of benefits from a lease accumulated in a trust account by a custodian of the estate and the legal status of the custodian. The courts upheld the Firm’s position that the interpretation was issued in breach of procedural law and with an incorrect interpretation of substantive law. The Provincial Administrative Court interpreted the provisions of the VAT Act and the Code of Civil Procedure regarding management by a custodian of the estate, accepting the Firm’s arguments. These in turn were based on the case law of the Supreme Court and the CJEU. The courts of both instances stressed that the custodian of the estate is an indirect substitute of the heir, as a result of which the Firm’s client could not dispose of the estate as an owner before taking over the inheritance. Therefore, the university was not a direct beneficiary of the rental income and the lack of authority over the estate precluded the provision of rental and usage services before taking over the inheritance. Consequently, the benefits obtained from this were not subject to VAT.
File number : I FSK 565/19
]]>The Appellate Court in Krakow has dismissed the appeal of the defendant in the case concerning the claimant, a client of the Firm, who petitioned for a full refund of monies paid by her to the defendant, a building contractor, following rescission of the contract by the claimant. The Firm has also acted for the claimant in the first instance, in which the District Court has ruled entirely in her favour. Both courts were asked to opine on certain crucial matters of law, such as the nature of the contract entered into between the parties as well as which regulations ought to apply for determining the length of the limitation period for building contracts which have been rescinded. Furthermore, the courts have been determining whether serving a notice of rescission by emailing the same to the defendant’s email address which both parties have used in regular correspondence was valid despite the claimant not having received an acknowledgement of the same from the claimant. The District Court ruled – which ruling was agreed with and acknowledged by the Appellate Court – that in this case, as the Firm’s client had not received any indication that the notice of rescission emailed by her has not successfully reached the email server of the defendant, such notice had been validly and lawfully served by her at the moment of sending. The Firm is very pleased to have achieved this positive result for its client, especially given that the judgement provides an important precedent and brings clarity to the current rules regarding lawful service of notice.
File number: I ACa 1059/20
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