Monday, March 11, 2013

Recognition of foreign judgements in Republic of Poland

Recognition of foreign judgements in Republic of Poland  as enforceable

The foreign judgment depending on its nature shall be a subject to different procedures with a view to its enforcement in Poland. In simple terms those judgments in general could be divided into three groups: property related, being a subject to execution by enforcement proceedings, non-property related (e.g., divorce and other judgments in family affairs ) and inheritance.

The enforceability requirement for judgements issued in civil matters, by the foreign courts and classified as non-eforceable for judicial consideration in Poland,  is to be recognised by a Polish court.

Any person concerned can put forward a motion for recognition of the foreign Court's judgment. Such application should be accompanied by official copy of the judgment, its certified translation and a confirmation that judgment is binding.. In case od a default judgement, a confirmation that defendant was duly informed has to be submitted .

Such a recognition is not required for binding judgments of a foreign court in the case of the foreign citizens, issued by the Court having jurisdiction according to their native law, unless such  decision is to constitute  a legal base for solemnization of marriage or making entry in Registrar of Civil Status, Real Estate Register or any other register in Poland.

For the recognition of a judgment being subject to reciprocity the following conditions, set out in the article 1145 of the Code of Civil Procedure, are to be met jointly. :
·         the judgment has to considered as binding in the State, in which it was issued,
·         the case is not a subject of  the exclusive jurisdiction of the Polish courts or the courts of a third country in accordance with the Polish law or an international agreement,
·         the party has not been deprived of the possibility of defence or due representation in case of lack of capacity to act in court proceedings,
·         the case has not been already tried in a Polish Court or it was not initiated in a the Polish Court, called  for its settlement, before the decision of a foreign court was deemed binding.
·         the judgment is not at variance with the fundamental principles of the legal order of the Republic of Poland,
·         in cases where Polish law was applicable for the release of judgment, this law has been applied, unless the foreign law applied in  the  case does not differ substantially from the Polish law.

In case the conditions of section 4, 6 and the condition of reciprocity are not required to be applied if the decision of the foreign Court confirms the right to inherit a property located in this foreign country by the person living in Poland, in accordance with the legislation of this State concerning jurisdiction of a court and the law of this State.

Compliance with the reciprocity condition is also not required in cases being under the exclusive jurisdiction of the country of origin, according to the Polish law.

The above named six conditions do  not apply for the recognition of the foreign court judgments deemed as binding in non-property matters of the foreign citizens issued by a Court of competent jurisdiction according to their native law. Such  judgment can only be rejected in case where it is at variance with the fundamental principles of the legal order of the Republic of Poland.

The foreign judgement recognition is being decided by the District Court having jurisdiction over the case or by the Court in whose district the local court having jurisdiction over the case is located, at the hearing with the participation of a Prosecutor. If there is no such a Court, the Court of City of Warsaw is considered as  competent one. The decision on recognition of a foreign court judgement can be subject of appeal; the decision of the Court of Appeal can be subject of cassation appeal. It is possible to resume the proceedings that ended with a binding judgment.

The binding judgments of the Polish court that recognize foreign sentences of divorce or annulment of marriage or non-existence of marriage are subject to Polish regulations concerning inadmissibility of action for renewal and inadmissibility of action for deadline reinstatement for appeal. Both these actions, for renewal and the deadline reinstatement are inadmissible if at least one party has concluded a new marriage after the judgment  was declared binding

An application for the foreign judgment recognition must be signed by the applicant or by established legal representative, who conducts law practice in Poland and is not a barrister. The application should include:
1. general information:
·         name, surname and address of the applicant,
·         name, surname and address of the established legal representative for the purpose of a case related correspondence,
·         name, surname and permanent address of the participant in the proceedings,
-If the current address is unknown one must provide the last known address or submit an official certificate from the last place of residence, confirming that the address is not known,
·         the date and place of marriage (if the marriage was concluded abroad) in cases of recognition of the judgment of divorce
·         nationality of the spouses at the date of filing the petition for divorce and nationality at the present moment,
·         justification of the recognition of judgment request unless an applicant is a  Polish citizen (the purpose for which applicant needs the recognition of the judgment),
·         the Court name and the file reference number of the divorce case if the divorce case was considered in Poland
1. the  judgment of divorce in original language with the confirmation that it entered into force + 4 photocopies of this judgment,
2. Polish translation of the judgment made by sworn  translator in Poland + 4 photocopies of the translation (if the translation was made abroad, one copy of translation should be verified by the Consulate of the Republic of Poland)
3. Copy of the Marriage Certificate from the Civil Status Registration Office - if marriage was concluded in Poland or was registered in our Registry.
4. Copy of the Birth Record of a child in case of recognition of the adoption judgements.
5. It is reasonable if the participant in the proceedings will attach the statement accepting the application's content and establishing a legal representative for the purpose of correspondence in Poland, who may be a foreigner; this will allow to avoid time-consuming service of correspondence for participant abroad and its costly translations. The statement must be signed by the participant and the signature is to be certified by notary or at the Consulate.

Recognition of judgments relating to divorce, legal separation or marriage annulment issued by a court in a foreign country, the member of European Union

These judgments in accordance with the article 1145 of the Code of Civil Procedure shall be subject to recognition by law and are recognised in administrative proceedings by Civil Status Registration Office.

The application for the recognition of the judgment shall be accompanied by:
  • the original of the foreign judgment complete with decree nisi absolute.
  • the certificate referred to in the art. 39 of the Council Regulation (EC) No 2201/2003,
·         the original of the official translation of the above named documents made by a sworn translator or by the consul in the case the person residing  outside Poland.

The Civil Status Registration Office shall make the relevant additional note to the Marriage Certificate on the basis of the foreign judgment.

1. Judgement in the cases declared in the EU States (except Denmark) determined in the proceedings instituted and legally ended after the 1 of May, 2004 shall be subject to the recognition and execution on the basis of Council Regulation (EC) No 2201/2003 of 27 November 2003.
2. in case the Court pronouncement of the EU Member States was determined in the absence of defendant, the applicant shall submit:
a) the original or certified copy of the document confirming that document instituting the proceedings  or its equivalent (court sermon) was served on the party that did not appear in court;
or
b) the document indicating that the respondent clearly agrees with the judgment.

In the absence of these documents, the court having jurisdiction over the case shall be the District Court at the place of residence.

Please note that Denmark, is the only country of the European Union that has not ratified the Regulation.

In the case of an application for the recognition of the decision of the foreign state Court outside European Union the following documents are required on the basis of the provisions of the Code of Civil Procedure,
·         APOSTILLED judgment in original
·         a document confirming that the judgmentis binding , unless this fact appears from the judgement  contents,
·         the original of official translations of the above named documents made by the Polish consul or by sworn translator in Poland,
·         application for judgment recognition

The registration of the judgment shall be effected by making a note in the Civil Status Record, for example of divorce, separation, denial or establishing of paternity. The adding of this note on the basis of the foreign judgment may occur only if the judgment is recognised in Poland.

A foreign judgment may be recognised under the law:
·         on the basis of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning the jurisdiction, recognition and enforcement of the judgments on matrimonial matters as well as matters of parental responsibility, related to judgments on civil matters of divorce, legal separation and marriage annulment issued in European Union countries except Denmark, issued in proceedings initiated after the 1 of May 2004 (see information card: Registration of divorce pronounced in European Union),
·         on the basis of the provisions of the Code of Civil Procedure, related to the judgments in civil matters from all the countries (except the judgments referred to above and the judgments subject to recognition on the basis of bilateral agreements concluded by Poland), issued on July 1, 2009 or later,
·         on the basis of bilateral agreements concluded by Poland.

In cases  the party of the proceedings casts any doubts on the authenticity of the document, the document shall be verified by the Polish consul.

Any interested person may apply to the Court to establish whether the judgment of the foreign State Court can be recognised or not. The application shall be considered by the local District Court having jurisdiction over the case on recognition of the sentence of the foreign State Court, or by the Court in which district the competent jurisdiction District Court is located, otherwise - the District Court in Warsaw.

In relation to the judgments subject to recognition on the basis of the Code of Civil Procedure issued prior to the 1 of July 2009, then-effective provisions of the Code shall be applied, which means that their effectiveness of law in Poland depends on the outcome of legal proceedings for the recognition of the judgment, instituted on the request of the person concerned. To make a note in a Civil Status Record on the base of such a judgment, it is necessary to submit both, a foreign judgment, and binding decision recognising this judgment of the Polish District Court.

The judgments issued by  the foreign countries courts in civil cases, enforceable in enforcement proceedings, become enforceable titles after their recognition by the Polish court. Enforceability shall be confirmed if the judgment is enforceable in the State of origin, and there are no obstacles referred to in article 1146 § of the Code of Civil Procedure (see above).
Enforceability shall be confirmed on the request of the creditor by adding the enforcement clause to the judgment of the foreign state Court.
The enforcement clause to the judgment can be given by the District Court at the place of residence or the head office of the debtor, otherwise by a District Court in whose District the execution is to be carried out.

The debtor is entitled to present his opinion within two weeks from the date of serving of the application copy. The Court considers the application in the proceedings in camera.

The decision on giving of the enforcement clause can be subject of appeal, the decision of the Court of Appeal can be subject of cassation appeal; one can also apply for resumption of the proceedings in the case of enforcement clause that ended with a binding judgment, as well as to apply for finding of non-compliance with the law of the  binding sentence issued in this case.

Execution on the basis of the foreign court decision can be initiated after the judgment on giving the enforceability clause has entered into force. Until the appeal period for filing a complaint against the judgment of a District Court on giving the enforceability clause is expired - this judgment serves as an interlocutory injunction until it is considered by the Court of Appeal. The type of interlocutory injunction is specified by creditor in his injunction motion. As a condition of interlocutory injunction the District Court is entitled to force a creditor to post a bond. The debtor has a priority for payment from the bond posted by the creditor before all other creditors of the creditor.

The settlement agreements on civil matters concluded by  the courts and other authorities of the foreign countries or approved by these institutions become  enforceable titles after their enforceability is confirmed, if they are enforceable in the country of origin and if they are not at variance with the fundamental principles of the legal order of the Republic of Poland.

However the above provisions are not applicable to the enforceability of judgments of the Member States of European Union, the settlement agreements concluded in such courts or approved by suchcourts as well as to official documents drawn up in those countries, bearing the European execution order.

The judgments of the Member States Courts of the European Union, a settlement agreements concluded in such  courts or approved by such  courts as well as the official documents drawn up in the Member States of the European Union and provided with the execution order in those countries  constitute the enforceable titles and are subject to execution in Poland after the enforceability clause is given. The enforceability clause is being given by debtor's District Court of general jurisdiction, otherwise - by the District Court in whose district the execution is to be initiated.

Also European payment orders issued by the courts of the Member States of the European Union, whose enforcement has been established in those countries on the basis of the separate regulations, constitute the enforceable titles and shall be executed in the Republic of Poland after the enforceability clause is given.

The judgments of the courts of the European Union Member States issued in the European small claims procedure and provided by execution order in those states on the basis of the separate provisions also constitute the enforceable titles and shall be executed in the Republic of Poland after the enforceability clause is given.

The procedure differs  in the case of inheritance matters. The national jurisdiction is applicable if the testator was a Polish citizen at the time of his death, or had a place of residence or habitual residence in the Republic of Poland. The national jurisdiction is also applicable in inheritance matters if inheritable property or the substantial part of thereof is located in the Republic of Poland.

The above stated means that recognition of a foreign judgment in succession related case it is not possible, the inheritable case should be initiated from the very beginning in Poland and the Polish Court has to issue the inheritable judgment.



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