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posted 7 years ago
In connection with the Sejm’s legislative work on the drafts of the acts on bailiffs and bailiff costs, we would like to draw your attention to the proposed solutions concerning the charging of creditors with enforcement fees in cases of the proceedings discontinued due to the ineffectiveness of enforcement. The changes will also affect the situation when the proceedings will be discontinued at the request of the creditor or due to its failure to act. The proposed solutions will concern not only proceedings initiated after the entry into force of the Act, but also those which will be initiated before that date. Details of this are provided in the final section of this notice.
Under the current legislation, in the event of discontinuance of enforcement proceedings, the enforcement fee was charged to the debtor, except for the case of inappropriate initiation of the proceedings. Therefore, apart from the incurred advance payment, the creditor did not incur any further charges. However, a radical change of this solution is planned. According to the draft wording of Art. 28 of the Act on bailiffs costs, in the event of discontinuance of the enforcement proceedings due to their ineffectiveness, the bailiff shall charge the creditor a fee of PLN 150.
This fee is reduced by the sum of enforcement fees collected and charged to the debtor. It is not collected from natural persons who pursue employee claims or claims for compensation. These exemptions, however, will apply in exceptional cases. In the first place, the fee will be reduced only if the enforcement proceedings have been partially effective. This situation is relatively rare. The second exclusion will not apply in the case of enforcement of claims arising from civil law contracts.
This issue will be discussed at the forthcoming meeting of the Sejm’s Committee on Justice and Human Rights, but we do not anticipate significant changes in this regard. Possibly, the amount of the fee may be reduced or the exclusion list will be extended. However, this solution is likely to remain in the final wording of the Act.
The analyzed amendments are supplemented by the provisions referring to charging the enforcement fees to the creditor in case of discontinuance of the proceedings for other reasons. According to Art. 28 of the Act on bailiff costs, in the event of discontinuance of the enforcement proceedings at the request of the creditor or due to his or her failure to act, the creditor will be charged a fee of 5% of the debt remaining to be recovered. Exceptions apply when the above, i.e. the cancellation and the creditor’s request or failure to act is caused by repayment or settlement agreement between the debtor and the creditor. In this case it is the debtor to whom the fee will be charged.
According to Art. 29 of the Act on bailiffs costs, in the case of inappropriate initiation of the proceedings or indication of a non-debtor in the enforcement application, the bailiff shall charge the creditor a fee of 10% of the enforced benefits. In this case, the bailiff does not charge or collect the fee from the debtor, and returns to the debtor the fee which was already charged or collected. This provision excludes the application of Art. 28 within the scope indicated above.
In this regard, the wording of the inter-temporal legislation introducing the law is of utmost importance. According to Art. 49 of the Act on bailiff costs, the rule is that the provisions of the new act apply only to the proceedings initiated and not completed before the date of entry into force of the Act. The only exception is the provisions governing the situation of charging the enforcement charges to the creditor. According to the legislator’s decision, the provisions of Art. 28 and Art. 29 shall apply from the date of entry into force of this Act.
Regardless of the doubts concerning the compatibility of the planned inter-temporal solutions with the provisions of the Constitution of the Republic of Poland, it should be assumed that the proposed solutions will become an applicable law in Poland in the first half of 2018. We suggest that you consider taking action against the negative effects of the introduction of the Act. This may include, in particular, checking the portfolio of cases which are at the stage of enforcement proceedings, in order to discontinue the proceedings which are not repaid before the entry into force of the new legislation.
From the point of view of mass creditors, who currently carry out tens of thousands of active executions, the planned solutions will lead to the need of incurring additional costs, counted in millions of zlotys. Due to the inter-temporal regulations, it is necessary to take immediate measures in order to minimize the negative effects of the provisions introduced.
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