CHANGES IN ENFORCEMENT OF JUDGEMENTS IN CASES ON PROTECTION OF PERSONAL INTERESTS

In the amendment of the Polish Code of Civil Procedure of 9 March 2023 (Journal of laws of 2023, item 614), hereinafter the “Amendment Act”, a number of changes were introduced regarding enforcement proceedings. One of the most significant changes are those connected with the manner of enforcement of claims involving protection of personal interests.

The most controversial change introduced by the new version of the Polish Code of Civil Procedure is identified as the amended provisions on the manner of enforcement of court obligations ordering to publish an apology. 

First of all, it should be stressed out that in accordance with the provisions of the Polish Civil Code, the injured party whose personal interests were infringed may demand that the person who infringed his/hers personal interests perform the actions necessary to remove the effects of the infringement, particularly, to make a declaration of the appropriate form and substance (Article 24 of the Polish Civil Code).  This form could be the publication of an apology on the Internet, press, TV, etc.

However, what can be done, if the debtor is unwilling to fulfil this obligation voluntarily? If the debtor obliged by the court has not voluntarily fulfilled the obligation, the court may force the debtor to fulfil the obligation under provisions on enforcement of non-pecuniary actions.

So far, the procedure has been that, the final courts obligations ordering the publication of an apology were subject to enforcement, which applied to replaceable acts.

This is stipulated in Article 1049 § 1² of the Polish Code of Civil Procedure: “If it is found out that the debtor has failed to perform the action within the specified time limit, the court shall authorise the creditor to perform such act at the debtor’s expense setting an appropriate time limit for its performance. At the justified request of the creditor, the time limit for performance of the action may be extended.”

Under the previous legal status, if the debtor did not voluntarily comply with the enforcement title, in this case, failed to publish an apology, the substance and form of which were determined in the judgement, the court could undertake to publish an appropriate statement at the debtor’s expense in any situation, in which a cause arose to remedy the damage suffered as a result of the infringement of personal interests. The total costs of enforcement of the obligation were borne by the infringer of personal interests, and these costs were basically unlimited.

Currently, § 4 was added to Article 1050 of the Polish Code of Civil Procedure, which states that: “If, in case of infringement of personal interests the debtor fails to make a statement of appropriate substance and form, despite setting a deadline for its submission and threatening him with a fine, the court shall impose a fine of up to fifteen thousand zlotys on the debtor and order an announcement corresponding to the required statement in substance and form to be published in the Court and Commercial Gazette (Polish: Monitor Sądowy i Gospodarczy) at the debtor’s expense. Articles 1052 and 1053 do not apply (…)”.

According to transitional provisions, i.e. Article 19 of Amendment Act, which provided that in cases of infringement of personal interests initiated and not concluded by the date of entry into force of amendments, Article 1050 § 4 of the Act shall apply. Thus, even if the obligation to perform the obligation by making the declaration of intent was made on the basis of the act in previous wording, then the debtor who evades the voluntary performance of an apology will benefit from the solution proposed in Article 1050  of the act, as the new Act will apply.

It should be pointed out that, due to the amendments the function of apology in proceedings concerning the infringement of personal interests will probably lose its significance. The creditor will no longer have the possibility to publish an apology at the debtor’s expense and the publication of an apology in the Court and Commercial Gazette ( Polish: Monitor Gospodarczy i Sądowy), which due to its intended purpose is not as widely read as the major internet portals or dailies, is very unlikely to have a positive impact on possibility of larger public to become familiar with the published apology.

In conclusion, the amendments described are more favourable for the debtor, as they limit the amount of a fine, which may be ordered by the Court and allow the publication of an apology in the Court and Commercial Gazette ( Polish: Monitor Gospodarczy i Sądowy) instead of publishing it in significantly more expensive commercial media.

However, the question arises, whether an apology published in this way will be sufficient to remedy the effects of infringement of personal interests, especially if the infringement took place through the mass media.

The amendment seems to be disadvantageous for the creditor, whose personal interests were infringed and the remedies applied will not be adequate and in accordance with the principle of so-called “mirror image”, according to which an apology (a statement) should be published in the same form and media, in which the infringement has been made.