- Change of address of the branch office in Warsaw

We inform you that at the beginning of December 2010 there was a change of address of Warsaw branch office.

The new address of the branch in Warsaw is as follows:

Budzowska Fiutowski and Partners. Legal Counsellors.
J. Waszyngtona St. 40a
03-910 Warszawa

Telephone and fax numbers remain unchanged.

Location map can be found in contact section.

- Incorrectness of the denial of permit for allowing a medical product to turnover because of procedural mistakes of the Minister of Health

The Administrative Court of Voivodeship in Warszawa overruled the decision of the Minister of Health denying permit for allowing a medical product to turnover, which the Client of our Legal Office applied for. The questioned decision was passed as a result of a motion for a repeated consideration of the matter after the previous decision - also a negative one - had been issued by the same organ. The specific character of the procedure based on the above mentioned motion for a repeated consideration of the matter does not mean that the rule of "two instances" is completely excluded, however it is restricted. The Administrative Court underlined that in the situation when a procedure ended with a decision issued in the 1st instance is burdened by essential deficiencies, it is not enough to overrule the decision and to pass a new decision concerning the issue of the matter. The questioned decision of the Minister of Health denied permit for allowing a medical product to turnover despite the fact that there had been prepared by the Chairman of the Office for Registration of Medical Products, Medical Devices and Biocidal Products no report containing an appraisal of the product, which is essential for the matter and required by provisions of pharmaceutical law; at the same time the party had been denied the right to present its standpoint concerning the content of such report. The defects stated by the Administrative Court in the actions of the Minister of Health caused that the denial of permit for allowing a medical product to turnover was treated as incorrect because of formal reasons, despite of other premises of denial which examination - at this stage - the Court treated as premature. The matter shall be returned to the Minister of Health who is obliged to examine the matter one more time, taking into account instructions of the Administrative Court.

- proceedings in front of the Minister of Health and in front of the Administrative Court of Voivodeship in Warszawa.

 

- Law of Succession - the case involving unworthiness of inheritance

The Legal Office, acting on behalf of the defendants, won the case involving unworthiness of inheritance. The claimant brought a lawsuit claiming the Legal Office's Clients' unworthiness of inheritance after their father, alleging that the defendants intentionally committed a serious offence against the deceased. In support of his claim, the plaintiff claimed that the defendants did not maintain contacts with their father who suffered a severe illness for several years before his death but the plaintiff did not offer any evidence to show that the defendants committed a serious crime against the deceased. The courts of first and second instance shared the argumentation of the Legal Office that no basis were provided for the recognition of the defendants as unworthy of the succession after their father. What the Appeal Court emphasised, a mere fact of raising the argument about weak relationship between the defendants and their father at the time of illness (which was not proved in this litigation) was insufficient to establish the existence of the premises allowing to deem the defendants unworthy of inheritance.

- proceedings in front of the Regional Court in Krakow I Civil Division and in front of the Appeal Court in Krakow I Civil Division.

 

- Successful resolution of a dispute with the National Labour Inspectorate (PIP) for a registration of a changed collective labour agreement

Final decision of 6 January 2010 ended nearly three-year dispute between the National Labour Inspectorate and a company of the mining industry and trade unions operating in this company. The National Labour Inspectorate refused the entry of a changed Collective Labour Agreement to the register, referring to the provisions of suprainstitutional collective labour agreements. Benedykt Fiutowski, a legal counsellor representing the company and part of the trade unions, claimed invalidity of the provisions of suprainstitutional labour agreements, which was supported by the judgment of the Constitutional Tribunal of 18 November 2002. In the latter judgment, the Constitutional Tribunal deemed Article 241 (7) § 4 of Polish Labour Code unconstitutional.

The Regional Court in Katowice which heard an appeal of the Company and part of the trade unions wholly shared the arguments presented by a legal counsellor, Benedykt Fiutowski, and ordered the registration of changed collective labour agreement. The latter concerns conditions of employment of more than twenty thousand employees of the company.

- proceedings in front of the District Court in Katowice VIII Labour and Social Security Division and in front of the Regional Court in Katowice IX Labour Division

 

- Plea of nullity of proceedings - a representative's failure to appear at the hearing

In one of the litigations carried out by our Legal Office, a professional legal representative of our Client's opponent when appealing against the judgment of the Court of first instance, made a plea of nullity of proceedings on the account of depriving his client of the possibility to defend his rights due to force majeure (the attorney's illness), which prevented the attorney to appear in court on the day of hearing. The Appeal Court, considering the appeal of the opposing party, argued that what had to be primarily assessed in evaluating such plea of nullity of proceedings was a determination whether there had been a violation of Article 2141 § 1 of the Polish Code of Civil Procedure, under which a justification of a failure to appear in court due to the illness of the parties, their statutory representatives, attorneys, witnesses and other participants of the proceedings, requires certificate issued by a court-approved physician confirming the inability to come to the court summons or notice. It should be noted that the information about the attorney's illness, which was sent by fax to the court a few hours before the scheduled hearing, was not supported by the abovementioned certificate, which - as pointed out by the Legal Office in response to the appeal - is the only acceptable form of justifying the failure to appear at the hearing due to attorneys' illness. The latter argumentation was shared by the Appeal Courts, which noted in the judgment justification that Article 2141 § 1 of the Polish Code of Civil Procedure did not indicate that one could make up for a lack of certificate issued by court-approved physician at a later stage, i.e. after the date of the scheduled hearing and - contrary to what the appeal stated - that such possibility was not foreseen by the provisions of the Act on court physician of 15 June 2007. Accordingly, the Appeal Court did not consider the existence of the abovementioned grounds of nullity of the proceedings.

- proceedings in front of the Regional Court in Krakow I Civil Division and in front of the Appeal Court in Krakow I Civil Division

 

- Invalidation of a lease agreement

The Regional Court in Kraków, IX Economic Department on 15 September 2009 passed a judgement in the matter started by a company of a structural branch, represented by a legal counsellor Benedykt Fiutowski, demanding an invalidation of a lease agreement, according to which the Court invalidated a lease agreement of an enterprise of a bankrupt concluded by defendants. The court indicated that there are two basic interpretations of Article 705 of the Polish Civil Code on which the suit of our Client was based in this matter. The first one requires that a violation of good customs as a condition of invalidation of an agreement is considerable and may be almost treated as a corruption. According to the second approach, a more lenient one, a condition of violation of good customs as a basis of invalidation of an agreement exists also then when generally accepted axiological norms, behavioral norms, not necessarily understood as a corruption, have been violated. The Court based the judgement on the second approach. Taking the above mentioned into consideration, the Regional Court stated that if someone announces an auction, he should comply with all the rules applied to the auction. Whereas, in the Court's opinion, a regulation of the auction was "odd". On the one hand it provided criteria of a selection of offers, on the other hand it granted to an organizer of the auction a non-limited right to a "free choice of offers". The court noticed here an obvious inner discrepancy. According to the Court, if an organizer for purpose of selecting a lessee chose a form of an auction, he should acknowledge its regulation and constantly comply with all norms and obligations applying to this form of chosing a contracting party, i.e. applicable towards the auction. The judgement is not yet final and valid.

- proceedings in front of the Regional Court in Kraków IX Economic Department

- Banker's letter of credit

In August 2009, after almost 5 years of court proceedings started by the suit of the bank's contracting party for payment of 25 million zloty the Legal Office - representing a bank - obtained in front of the Appeal Court in Warszawa an advantageous judgement for its client which upheld a judgement of the court of the 1st instance dismissing a suit in full. The matter concerns a banker's letter of credit (rarely existing in the turnover) granted by a foreign bank. A basis for cognizance was an interpretation of provisions of the banking law, and especially of provisions of enforceability of claims arising from a banker's letter of credit which due to a poor jurisdiction are still a subject of variant interpretation of courts. A legal opinion concerning the provisions of the banking law presented by us was fully accepted by the courts of both instances.

- proceedings in front of the Regional Court in Warszawa I Civil Department and in front of the Appeal Court in Warszawa I Civil Department

- Currency options

Recently we have undertaken an order of one of the renowned Polish banks to lead its matters connected with currency options in the scope of preparation of legal opinions concerning contracts which objects are currency options, as well as legal representation in several court proceedings in which the bank takes part.


- Compensation for an enterpreneur

We have recently won in front of the court of the first and the second instance proceedings on compensation for a client of the legal office. Our client, an entrepreneur, incurred a damage of thousands in connection with a business activity led by him, caused by an illegal activity of another entrepreneur which blocked access to an object of tenancy; the blockade made it difficult to lead a business activity by our client in the usual course. A very detailed suit and gathered documents, presented to the court, let us obtain a positive judgement, i.e. the court adjudged in favour of our client a compensation in the amount of over one hundred thousand zloty. The above mentioned judgement has been held in force by the court of the second instance.

- proceedings in front of the Regional Court in Kraków IX Economic Department and in front of the Appeal Court in Kraków I Civil Department


- Court proceedings concerning acquisitive prescription of ownership of a real estate

One of the most important matters concerning acquisitive prescription, led by the legal office Budzowska Fiutowski & Partners. Legal Advisers, as far as an amount of a dispute's object is concerned (several million zloty), related to proceedings on acquisitive prescription of shares in three real estates placed in the centre of Kraków by the State Treasury. In this matter the legal office represented Polish and British citizens and legal persons being co-owners of real estates. The matter has been decided in favour of the clients of the legal office both in the first and in the second instance.

- proceedings in front of the District Court for Kraków - Śródmieście in Kraków I Civil Department and the Regional Court in Kraków II Civil - Appeal Department


- Delimitation of real estates

An organ of a local government started ex officio proceedings on delimitation of real estates located in the area of Kraków, in which it passed a decision among others on handing over the matter ex officio to the court to its judgement. One of the co-owners of the real estate which was an object of the delimitation proceedings did not agree with the issued decision. On his behalf the legal office filed an appeal, in which it was raised among others that the organ started the proceedings ex officio without justification, as well as other arguments concerning breach of procedure of leading proceedings. In relation to the appeal the Council Appeal Board (Samorządowe Kolegium Odwoławcze) overruled the decision and discontinued administrative proceedings.

- proceedings in front of the Council Appeal Board (Samorządowe Kolegium Odwoławcze) in Kraków


- A complaint at lengthiness of court proceedings

Among successes of the legal office there is a positive outcome of a complaint at lengthiness of court proceedings concerning an entry of the company into the National Court Register. As the result of the complaint the court adjudged a maximum amount of money, provided by legal provisions, because of a stated delay, from the State Treasury in favour of the complaining company.

- proceedings in front of the Regional Court in Kraków XII Economic Department


- A claim of an employee for a severance pay

An employee came out against a former employer with a claim for a severance pay in connection with dissolving a labour contract because of reasons not concerning an employee. The amount of a severance pay depended on job seniority by the employer (a client of the legal office), however if job seniority exceeded 10 years, the due severance pay should be doubled. In connection with that the employee claimed for a double severance pay with justification that his job seniority amounted to over 10 years, and in order to count the job seniority he applied Art. 114 of the Civil Code. The employer argued with a method of counting the job seniority, presented by the plaintiff, demanding a dismissal of the lawsuit. The lawsuit of the employee was finally dismissed by the court of the second instance which in the justification of the judgement shared a content-related opinion of the employer.

- proceedings in front of the District Court for the capital city Warszawa VII Labour and Social Insurance Department and in front of the Regional Court in Warszawa XII Labour Department


- Proceedings on obtaining a permit for allowing a medical product to turnover

We represented our client in the matter of pharmaceutical law in proceedings on obtaining a permit for allowing a medical product to turnover in front of both proper public administrative authorities and administrative courts. We have obtained for our client advantageous decisions issued by the Supreme Administrative Court and Administrative Court of Voivodeship in Warszawa, i.e. decisions of the Health Minister concerning a refusal to grant a permit for allowing medical products to turnover has been overruled.

• a final and valid judgement of the Administrative Court of Voivodeship in Warszawa of 3 October 2006 (VII SA/Wa 1028/06),
• a final and valid judgement of the Supreme Administrative Court of 8 April 2009 (II GSK 827/08),
• a final and valid judgement of the Administrative Court of Voivodeship in Warszawa of 23 September 2008 (VII SA/Wa 1006/08),
• a judgement of the Administrative Court of Voivodeship in Warszawa of 29 October 2006 (VII SA/Wa 1004/08).

- Press law

The legal office has recently led court proceedings in the matter of breach - by untrue or careless information contained in an edition of one of the most widely read national weekly magazine - of basic personal rights of a client of the legal office, i.e. of honour, good name, and private sphere of life. The court of the first instance admitted a claim of the legal office in the whole in the scope of placing by the defendant (the magazine) an announcement correcting untrue descriptions and a statement about our client. Because of the range of the breach of personal rights of the client in the said matter, the legal office claimed also for a proper pecuniary redress in favour of the client, which will be an object of proceedings in front of the court of the second instance.

- proceedings in front of the Regional Court in Warszawa IV Civil Department


- Proceedings in front of treasury organs

The legal office Budzowska Fiutowski & Partners. Legal Advisers leads efficiently activities in front of proper treasury organs, especially in the scope of settlement of taxes due by foreign subjects. The legal office has recently settled for clients in the most favourable way a number of tax due amounts arising from inheritance proceedings and donations, concerning real estates in Kraków, Katowice and Bielsko-Biała. As a result of gathered documents and systematic efforts of the legal office by proper tax organs the proceedings ended quickly and with a positive outcome for the client of the legal office.


- Proceedings on granting of a public order

While renderring services connected with public procurement law we have been representing both ordering parties and tenderers, including also tenderers from abroad. One of our clients was a company from the United States who was represented by us in several proceedings and in all of them an offer of our client was chosen. During performance of orders we helped to solve diverse legal questions, contributing this way to efficient course of works and proper contacts between our client and its contracting parties.