Fact-checking: There is no “State of Emergency”, so we can’t claim compensation from the State Treasury

True or false?

“The failure to introduce the “State of Emergency” as defined in the Constitution excludes the possibility of pursuing claims, e.g. by entrepreneurs who are currently unable to conduct business and are deprived of the possibility to earn money.

False.

Fact: If, for example, a “State of Natural Disaster” would be declared (its cause could be a “natural disaster”, i.e. according to the statutory definition: “an event related to the action of natural forces, in particular (…) the mass occurrence of (…) infectious human diseases (…)”[!]), citizens would be entitled to a facilitated and accelerated path of compensation for damages (only damages – not lost profits):

  • a decision regarding compensation by the Voivode in 3 months,
  • payment within 30 days and
  • an action to the common court for those who are not satisfied with the decision of the Voivode.

This is provided for in the 2002 Act on Compensation for Property Losses Resulting from the Limitation of Freedom and Human and Civil Rights in a State of Emergency. This path is currently closed.

However, in the Civil Code we also have Article 417(1) sec. 4, according to which victims may sue the State Treasury for compensation:

  • “If the damage was caused by a failure to issue a normative act, the obligation to issue which is provided for by law” and
  • the unlawfulness of the failure to issue this act shall be established by the court hearing the case for damages”.

Since the Council of Ministers did not introduce a “State of Natural Disaster” (as it should? ), then the affected citizens cannot take advantage of the fast-track compensation (decision of the Voivode) provided for in the 2002 Act, and so they suffer damage (because they do not receive compensation).

And since it is up to the court hearing the case to decide that a “State of Emergency” should be introduced, the problem of going through prior, painstaking proceedings before the Polish Constitutional Tribunal or one of the European Tribunals is gone.

Whether a particular entrepreneur will be able to effectively sue the State Treasury will depend on a number of nuances, which will have to be thoroughly examined in each case. However, in order to even consider such a possibility in the future, one cannot wait and it is already worthwhile to secure evidence to prove the ongoing damages.