If you reside or pursue business outside Poland or you are otherwise related to legal entities of other states, you may be a party to and later became an addressee of rulings made by courts of foreign countries.
The recognition and enforceability of foreign judgments in Poland is a problem regulated by national, EU regulations, and international agreements. To make foreign rulings effective, it is required to meet a vast number of procedural requirements and frequently individually assessed conditions, the breach of which is an absolute negative condition for recognizing a given ruling in Poland.
Under current legislation, judgments made by foreign courts in civil cases are recognized in Poland by virtue of law – de plano. This principle was implemented by the Act of December 5, 2008 amending the Act – the Code of Civil Procedure and some other acts (Journal of Laws No. 234, item 1571) that entered into force on July 1, 2009.
This means that a party to proceedings may use a foreign judgment on civil matters that determines and establishes a legal relationship or awards an amount without the need for separate proceedings.
For example, a party to divorce proceedings may directly request that the divorce be mentioned in the Polish marriage certificate or make other changes in vital records.
Before implementing the aforesaid amendment, in order to use a foreign judgment, the party was obliged to obtain a decision of a competent Circuit Court in Poland that recognizes such a foreign judgment in Poland. However, persons interested in judicial proceedings may still submit an appropriate petition for ascertaining the judgment in order to obtain the certainty of legal transactions. The judicial ascertainment of foreign judgments is still widely practiced among persons who are parties to a foreign divorce judgement, division of joint spousal property or dealing with family law or inheritance law issues. It is also possible to obtain a decision stating that it is not possible to recognize a foreign court judgment in order to prevent its implementation into the Polish legal system.
It is required to distinguish the recognition of a foreign judgment from the ascertainment of its enforceability.
Both unenforceable and enforceable judgments may be recognized. On the other hand, the ascertainment of enforceability of the judgment makes it possible to refer the judgment to enforcement authorities to exercise the party’s rights, e.g. to pay the amount awarded from the debtor, to pay the awarded child support, to obtain a share of the estate of the deceased, or to perform any other duty specified in the judgment. The catalogue of obstacles to the recognition and ascertainment of enforceability of a foreign court judgment was typified in Article 1146(1) and (2) of the Code of Civil Procedure. From the enumerated circumstances listed in the aforesaid provision, special attention should be paid to the public policy clause being a kind of guarantee of consistency of the foreign judgment with the fundamental principles of the Polish legal system and sometimes the only basis for rejection of the petition for recognition of a foreign judgment.
The example is a precedent decision of the Supreme Court of January 31, 2018 dismissing a cassation appeal against the Decision of the Court of Appeal in Białystok of March 15, 2017 (case No. Acz 244/17) dismissing a petition for recognition of a foreign court judgment. The proceedings concerned the recognition of a Danish court ruling ordering the return to the father of a child with whom the mother left Poland without obtaining consent in this respect, and depriving the mother of parental authority over that child. The Supreme Court, following the Court of Appeal, found that the principle of the best interests of the child as set out in Article 577 of the Code of Civil Procedure also applies to decisions ordering the surrender of a child based on the provisions of the Hague Convention on the Child Abduction.
According to the Supreme Court, the recognition of a Danish court ruling would be contrary to the child’s welfare, which is justified by circumstances such as the duration of the child’s stay with his or her mother in Poland and the degree of parental attachment. The contradiction of the judgment with the child’s welfare would be considered as the violation of the clause of public order. This judgment is certainly a starting point for further interpretation of the provisions on the recognition of foreign judgments. The principle of proportionality developed by case law and the derived principle of consistency of the decision with the basic principles of the legal order of the Republic of Poland is of crucial importance for the ascertainment of enforceability of foreign judgments. In the widely described and quoted decision of the Supreme Court of October 11, 2013 (case No. I CSK 697/12), concerning nota bene the recognition of enforceability of the judgment made by the District Court of Cook County, Illinois, USA, awarding from a journalist of the Wprost weekly the amount of USD 745,000 to a daughter of the former Polish Prime Minister, Włodzimierz Cimoszewicz, and her husband as compensation for the infringement of personal rights, the court upheld the judgments of both courts of lower instance and refused to ascertain the enforceability of the foreign judgment.
Apart from procedural obstacles to the delivery in a foreign trial, the Supreme Court highlighted the lack of correlation between the amount of compensation awarded and the real damage caused to the claimants. The amount of compensation should therefore be adjusted to the legal and economic realities of the legal order, responding to the amounts awarded to claimants in similar cases, without taking into account the preventive and repressive function of criminal proceedings in cases of crimes against honor. Although all the formal procedural requirements for proceedings have been observed, many circumstances not directly expressed in statutory provisions may prevent the recognition and enforceability of a foreign judgment in Poland.
attorney-at-law Jarosław Kurpiejewski
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