Interim measures in Poland

1.1.1 Polish civil procedure is mainly regulated by the Code of Civil Procedure (Kodeks postępowania cywilnego – KPC) of 1964. The regulation on interim measures changed significantly in 2005. The term “interim measures” was replaced by the term “security for claims” and instead of the parties to proceedings to secure claims being described as “creditor” and “debtor”, they are now defined as “entitled party” and “obliged party”.

1.1.2 Accordingly, in this chapter, interim measures are often referred to as “security for claims”. 

1.1.3 Interim proceedings to secure claims are regulated in Part Two of the KPC, 1 KPC, arts 730 – 757.  which refers exclusively to these types of proceedings. However, the general principles of contentious proceedings, regulated in Part One, apply accordingly to other types of proceedings. 2 KPC, art 13 § 2.  To some extent, the enforcement of interim decisions awarding security for claims is subject to the provisions on enforcement proceedings, which compose Part Three of the KPC. Matters regarding interim proceedings to secure claims with an international element and before arbitral tribunals are regulated respectively in Parts Four and Five of the KPC. 

1.1.4 Acts of international and European law have priority over the provisions of the KPC. In particular, since Poland’s accession to the European Union in 2004, European regulations have applied directly and are an integral part of the Polish legal system, overriding Polish national laws. Therefore, the principles set out in the Brussels I-bis Regulation 3 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters  and the Lugano Convention 4 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, 30 October 2007. need to be observed in the case of enforcement of judgments rendered abroad.

1.1.5 Even though the KPC explicitly allows requesting security for claims in cases before civil courts and arbitral tribunals, 5 KPC, art 730 § 1.  provisions on security for claims are encompassed in acts which regulate other branches of law as well. For example, security may be necessary in criminal cases, where provisions of criminal procedure and criminal enforcement apply. Specific rules of the Geological and Mining Law, Bankruptcy Law or Restructuring Law, to name only a few, may also have an impact on interim proceedings to secure claims.

2.1.1 Petitions for security for claims are filed with the court competent to examine the substantive case in the first instance. If the competent court cannot be determined, the party requesting the security resorts to the court at the venue where the security is to be enforced. Finally, if there are no grounds to determine such venue or if the decision awarding security for claims is to be enforced in different court circuits, the jurisdiction shifts to the District Court for the capital city of Warsaw.

2.1.2 If a request for security for claims is made when the substantive case is already pending, the petition is filed with the court reviewing the case at that moment. An exception is the Supreme Court, which does not have jurisdiction over the subject of security for claims – in proceedings before the Supreme Court matters of security are decided by the court competent in the first instance. 6 KPC, art 734.

2.1.3 As a general rule on territorial jurisdiction, an action is brought before the court of the first instance competent for the defendant’s place of residence. Detailed means of determining territorial jurisdiction are regulated in articles 27-46 of the KPC. If an action is brought mistakenly and the court declines jurisdiction, it refers the case to the competent court. 7 KPC, art 200 § 14.

2.1.4 For security for claims pursued in arbitral 8 KPC, art 1166 § 2. or foreign court proceedings, 9 Polish Supreme Court decision, 6 April 2001, V CO 3/01.  the competent domestic court is the one which would have jurisdiction if the dispute were to be resolved before Polish domestic courts.

2.2.1 Generally, parties can determine the jurisdiction for existing or future disputes by written agreement. 10 KPC, art 46 § 1.  The court agreed upon by the parties has jurisdiction irrespective of the rules determining territorial jurisdiction provided for in the KPC, except for where the KPC grants a court exclusive jurisdiction to hear certain types of disputes. 11 KPC, art 46 § 2.  Courts are bound to examine their jurisdiction ex officio at every stage of the proceedings. 12 KPC, art 200 § 11.  However, if a lack of jurisdiction can be remedied by parties’ agreement, courts consider it only until the moment of service of a statement of claim. After service, courts consider lack of jurisdiction only upon defendant's objection, to be raised before addressing the merits of the case. 13 KPC, art 200 § 12  In the light of the above, if a request is filed with a court competent on the basis of rules of territorial jurisdiction and no objection is raised by the other party, it is possible that such choice would be valid and prevail over the jurisdiction clause.

2.3.1 In general, District Courts have jurisdiction over cases in the first instance and Regional Courts in the second instance. 14 KPC, art 16. Some cases are reserved to be heard by the Regional Courts in the first instance and Appellate Courts in the second instance.

2.3.2 The first instance jurisdiction of Regional Courts generally includes cases concerning: 15 KPC, art 17.

• non-property rights and property claims pursued jointly with them, except for cases to establish or negate the descent of a child, determine the ineffectiveness of the recognition of parentage and dissolution of adoption;
• protection of copyright and related rights, as well as rights related to inventions, utility models, industrial models, trademarks, the geographical status and topography of integrated circuits as well as protection of other intangible property rights;
• claims under the Press Law;
• property rights, where the amount in dispute exceeds PLN 75,000, except cases relating to alimony, trespass, establishment of separate property between spouses, reconciliation of the content of a land and mortgage register with the actual legal status of real property, as well as cases resolved in electronic proceedings for payment order;
• issuance of a ruling replacing a resolution on the division of a cooperative;
• repealing, declaration of nullity or determination of existence or non-existence of resolutions by corporate bodies of legal persons or other units with legal capacity granted under the KPC;
• prevention and combatting of unfair competition; 
• compensation for damage caused by an unlawfully issued final court ruling; and
• claims resulting from a violation of rights under the provisions on the protection of personal data.

2.3.3 An infringement of the rules on subject-matter jurisdiction can lead to proceedings (including interim proceedings to secure claims) being null and void only if a District Court adjudicates a case which falls under the exclusive jurisdiction of a Regional Court regardless of the amount in dispute. 16 KPC, art 379 § 6.

2.3.4 The composition of a court ruling on the subject of security for claims is the same as in a substantive case. However, if a case is heard by a three-person panel, a decision on security may be issued by a single judge in case of emergency. 17 KPC, art 735 § 2.  Judicial clerks are competent to rule on a motion for security for claims, with several restrictions, only in cases concerning claims for payment resulting from a commercial transaction under the Act on Prevention of Undue Delays in Commercial Transactions. 18 KPC, art 735 § 2.

2.4.1 If more than one court is competent to hear the substantive case (optional jurisdiction), the party requesting the security for claims may select the court. 19 KPC, art 43 § 1. If the security for claims is awarded before the commencement of the proceedings on the substantive case by one of the optional competent courts, this does not prevent the claimant from filing a statement of claim with another optional court.

2.4.2 Subsequent issues regarding the security are decided by the court reviewing the substantive case. However, any appeal against the decision on the security should be decided by the second instance court in the same jurisdiction as where the decision was issued.

3.1.1 As will be further discussed below, security for claims is in principle awarded in ex parte proceedings, i.e., the obliged party does not have an opportunity to present its arguments in any form before a decision is made. Moreover, decisions on security can be issued in camera, i.e., in a closed session without any party’s presence. The only exceptions from this principle are mandatory hearings that should be held before deciding on most of the so-called performance measures. 20 See paragraphs 3.2.1 and 5.1.1.

3.1.2 In all civil cases, applications for any type of security are assessed in the light of the same criteria. The applying party must substantiate (i) the claim and (ii) the legal interest in obtaining security. 21 KPC, art 7301 § 1.

3.1.3 Legal interest exists if the enforcement of the ruling or achieving another purpose of the main proceedings is jeopardised. 22 KPC, art 7301 § 1. Such threat occurs, for example, if there are doubts about the debtor’s solvency. In addition, legal interest exists where a party is pursuing a claim for payment resulting from a commercial transaction under the Act on Prevention of Undue Delays in Commercial Transactions, provided that an outstanding payment is delayed at least three months and the value of the transaction does not exceed PLN 75,000. 23 KPC, art 7301 § 21.

3.1.4 When deciding on the security to be ordered, the court seeks a balance between providing legal protection for the entitled party and avoiding an unnecessary burden for the obliged party. 24 KPC, art 7301 § 3. However, the court is bound to hear the petition for security within the limits of the actual request, 25 KPC, art 738.  so the choice is narrowed to the means indicated in the petition. Therefore, the general principle of minimal nuisance of the security is fully applied only in cases where security is awarded ex officio.

3.1.5 Under the KPC, means of security are basically divided into two types. Security for monetary claims can be granted in the forms listed explicitly in the KPC. 26 KPC, art 747.  Claims of a non-monetary character, on the other hand, can be secured by any method that the court deems appropriate in the circumstances of the given case. 27 KPC, art 755 In this respect, the means mentioned in the KPC serve only as an illustrative list. Under the KPC, simultaneously using more than one form of security is not prohibited, if it is necessary and was requested by the entitled party. 

3.2.1 The means of securing monetary claims can be divided into preventive and performance measures, the latter consisting of one-off or periodic payments by the obliged party to the entitled party. 28 KPC, arts 753 – 754. Preventive means are aimed at maintaining the debtor’s property and can be granted in all cases regarding monetary claims, unless prohibited by law. Performance measures are restricted, as they are an exception to the general principle that a security for claims may not be used to satisfy a claim. 29 KPC, art 731.

3.2.2 The list of available preventive measures, regulated in detail in the KPC, 30 KPC, arts 747, 751 – 7526. consists of:

• attachment of movable property, remuneration for work, money in a bank account or other amounts due or property rights;
• selling perishables (awarded only if the obliged party does not have other property suitable to secure the claims);
• mortgaging the obliged party’s immovable property, ship or ship under construction;
• prohibiting the disposal and/or encumbering of an immovable property which does not have a land and mortgage register or whose land and mortgage register has been lost or destroyed;
• prohibiting the disposal of a cooperative title to premises; and
• compulsory administration over the obliged party’s enterprise or agricultural farm, or over a plant comprising part of the enterprise, or over a part of the enterprise or the agricultural farm.

3.2.3 The abovementioned forms of security for monetary claims may be altered by the obliged party by depositing a sum of money in the Minister of Finance's deposit account. 31 KPC, art 742 § 1. Such a deposit is governed by the provisions concerning interim proceedings to secure claims, not deposit cases. The sum of money to be deposited, called the amount of security, must be indicated by the entitled party in the application for security for claims. 32 KPC, art 736 § 1 (1).

3.2.4 Where the interim decisions awarding security is executed by means of enforcement, in general, the provisions regulating enforcement proceedings apply accordingly. 33 KPC, art 743. Therefore, property and rights which are exempt from execution cannot be subject to security either. 34 KPC, art 750.

3.2.5 It is prohibited to award security for monetary claims in cases against the State Treasury. 35  KPC, art 749. However, this rule does not apply to most of the performance measures. 36 KPC, art 7531 § 2.

3.2.6 It is not necessary to substantiate the legal interest in cases involving alimony, remuneration for work, pensions, damages for personal injury, modification of life annuity rights, or state compensation awarded to victims of certain prohibited acts – in part covering necessary costs of treatment, rehabilitation or funerals. 37 KPC, art 7531 § 3.

3.2.7 The entitled party may be awarded performance measures in the form of payments only in cases involving: 38 KPC, arts 753 – 7531.

• alimony;
• pensions, damages for personal injury and modification of life annuity rights;
• remuneration for work;
• obligations arising from retail sales agreements, against an entrepreneur, of up to PLN 20,000 (statutory warranty, guarantee, contractual penalties);
• rent or lease obligations of up to PLN 20,000; 
• damages arising from a violation of environmental protection provisions; 
• remuneration of an author of an inventive design; and
• state compensation awarded to victims of certain prohibited acts – in part covering necessary costs of treatment, rehabilitation or funerals.

3.3.1 The scope of application of the provisions which regulate the security for non-monetary claims is very wide. Security for non-monetary claims may be awarded in actions for determining and regulating legal relationships, as well as for carrying out a non-monetary performance. Thus, a decision awarding a security needs to be tailored in accordance with the entitled party’s request, taking into account the circumstances of the case.

3.3.2 As it is impossible to encompass all potential means of security for non-monetary claims, the KPC lists only general examples such as: 39 KPC, art 755 § 1.

• regulation of the rights and obligations of parties to proceedings for the duration of the proceedings;
• prohibition of the disposal of property or rights involved in the proceedings;
• suspension of enforcement proceedings or other proceedings aimed at executing a ruling;
• ruling on the custody of minors and contacts with a child; and
• ordering a relevant warning notice to be recorded in a land and mortgage register or other appropriate register.

3.3.3 Due to the universal character of the security for non-monetary claims, it is regulated less strictly and there are several exceptions to the general principles. Security for non-monetary claims may be awarded in actions against the State Treasury and may include property and rights normally exempt from execution. 40 Polish Supreme Court resolution, 27 February 1975, III PZ 2/75. The KPC also explicitly states that the purpose of a security for non-monetary claims may be to satisfy a claim as long as it is necessary to reverse the likelihood of damage or other adverse effects for the entitled party. 41 KPC, art 755 § 21.

3.3.4 Several more detailed forms of security are indicated in other parts of the KPC, as well as other laws, such as the Code of Commercial Companies or branch-specific regulations. The suitability of measures for securing non-monetary claims needs to be assessed on a case-by-case basis, which has led to the development of abundant case law of the Polish Supreme Court on this matter.

4.1.1 The general rule is that proceedings to secure claims are commenced upon a party’s request. However, under the KPC, security for claims may be awarded ex officio in rare cases indicated explicitly by law, these are cases where the main proceedings regarding a substantive claim may be commenced ex officio as well. 42 KPC, art 732. Examples can be found mostly among several types of non-contentious proceedings, e.g. family and guardianship cases.

4.1.2 What is more, in monetary claims, a party may seek – provided that particular formal and substantive prerequisites are met – to obtain an "order of payment" which is a simplified, ex parte court decision. Such order of payment can be challenged which leads to regular court proceedings. However, even if challenged, such order of payment makes it possible to automatically establish a security for the remainder of the proceedings. 43 KPC, art 492 § 1 and § 2. In a similar manner, a security can be established based on a foreign court’s ruling recognised by a Polish court – until the court has reviewed a defendant’s challenge against the recognition of such a foreign court’s ruling. 44 KPC, art 11512 § 1 and § 2.

Form of the request

4.1.3 A motion to secure a claim must be submitted in writing. Therefore, the general requirements for written submissions apply. 45 KPC, arts 125-1305.  Since the recent change to the KPC, it is no longer necessary to use official forms in any contentious proceedings. As an exception, it is possible to submit such a motion orally to the record together with a statement of claim in labour and social security disputes if a party is acting without a professional attorney. 46 KPC, art 466.  However, an application made orally still has to comply with all the requirements of a written submission.

Content of the request

4.1.4 The mandatory content of a motion for security set out in the KPC includes the following:

• a specific request (which can be expressed as an alternative or optional request) with an indication of claims and methods for securing them; 47 KPC, art 736 § 1 (1).
• an indication of the amount of security when requesting security for monetary claims; 48 KPC, art 736 § 1 (1).
• substantiation of the facts justifying the request; 49 KPC, art 736 § 1 (1).  and
• a brief presentation of the matter when requesting the security before commencement of the main proceedings. 50 KPC, art 736 § 1 (2).

4.1.5 The maximum amount of security cannot exceed the value of the claim sought, including interest due until the date of the interim decision to award security and the costs of enforcing the security. 51 KPC, art 736 § 3. In fact, the entitled party is not able to determine the actual date of the interim decision at the moment of filing the motion for security. Consequently, the entitled party is not able to execute this right to the full extent, as a it is virtually impossible to properly calculate the maximum amount of the security.

Enclosures to the request

4.1.6 There are no explicit requirements in the KPC regarding attachments to a motion to secure a claim. Nonetheless, it is in the best interests of the entitled party to provide all supporting evidence at the moment of filing the application. Interim proceedings to secure a claim are supposed to be time-effective and decisions on security can be issued in camera, i.e., during a closed session, without scheduling a hearing where parties would appear. 52 KPC, art 148 § 3.  The court reviews a petition for security on the basis of the material available in the case file. 53 KPC, art 738.  In proceedings before the court of second instance, the entitled party would have to substantiate that it was not possible or not required to present the additional evidence before the court of first instance. 54 KPC, art 368 § 12 in connection with art 397 § 2.

4.2.1 A motion to secure a claim can be filed by each party as well as any participant in the proceedings. 55 KPC, art 7301 § 1.  As a general rule, decisions regarding security for claims can be issued in camera. 56 KPC, art 148 § 3. Nonetheless, the court may refer the case to an open session and also schedule a hearing if it deems it appropriate. 57 KPC, art 148 § 2.

4.3.1 The standard of proof in interim proceedings to secure a claim requires only a ‘substantiation’ of the facts underlying the request for security, which is, under Polish law, a legal term separate from ‘proof’. As a consequence, the specific limitations of regular evidentiary proceedings are not applicable to interim proceedings. 58 KPC, art 243.  However, the general principle of comprehensive assessment of evidence applies to the ‘substantiation’ standard as well. 59 KPC, art 233 § 1.  When assessing whether the ‘substantiation’ standard is met, the court is allowed to base its ruling on any kind of evidentiary means, even those not included in the provisions of the KPC. 60 Polish Supreme Court decision, 12 October 2006, I BU 5/06.

4.3.2 Substantiation encompasses the facts relevant to the existence of the claim and the legal interest in obtaining security. The mere possibility of the existence of those elements may account as substantiation sufficient to award security – even if proven wrong at a later stage of the proceedings. 61 Appellate Court in Katowice decision, 20 September 2012, I ACz 850/12.  Substantiation to a certain percentage of probability cannot lead to awarding security in the same percentage. 62 Appellate Court in Warsaw decision, 7 August 1997, I ACz 735/97.

5.1.1 In Polish civil procedure, an obliged party has a very limited possibility to present its case before a security is awarded. Decisions on security can be issued in camera. 63 KPC, art 148 § 3  If this is the case, a decision dismissing a motion for security, as well as a decision awarding security enforceable through execution proceedings (and all subsequent decisions on such security) are served on the entitled party only. Consequently, if a decision is enforceable by means of execution, the obliged party receives such a decision only when the execution is commenced. 64 KPC, art 740 § 1.  Usually the first opportunity for the obliged party to present its arguments occurs when filing an appellate measure. In contrast, decisions awarding security that cannot be enforced through execution (in particular, most preventive measures) are immediately served on the obliged party. Moreover, a hearing should be held before deciding on most performance measures. 65 KPC, arts 7531 § 2 and 754.

5.2.1 As already mentioned, 66 See paragraph 3.1.4. the court should aim to ensure adequate legal protection for the entitled party without excessively burdening the obliged party. 67 KPC, art 7301 § 3.  However, it is bound by the scope of the request and may not award a measure not requested by the entitled party. 68 KPC, art 738. This limitation does not apply where a court awards the security ex officio. Also, no provision prohibits the court from setting the amount of security lower than requested.

5.3.1 If it causes a risk of damage to the obliged party, the enforcement of a decision awarding security for claims may be conditional upon the entitled party establishing a deposit securing the obliged party’s or third person’s damage claims which may arise as a result of enforcing the security for claims. 69 KPC, art 739 § 1.  The court may institute such a condition ex officio or upon the request of the obliged party in the decision awarding security or in a separate decision. The amount of the deposit should be equal to the amount of possible damage to the obliged party. This solution secures the obliged party’s claims which are in turn granted priority right after the costs of enforcement. A deposit may not be requested if the entitled party is the State Treasury and in cases regarding alimony, pensions or an employee’s remuneration, where the claim does not exceed the employee’s one-month salary. 70 KPC, art 739 § 2.

5.3.2 Such a deposit may be established both where the decision awarding security for claims is enforceable by means of execution and in other situations as well. Depending on the type of decision, its enforcement requires either an enforcement clause from the court or a notice of enforcement from the presiding judge. The enforcement clause will be issued only after the payment of the deposit is made, which must be proven by the entitled party. 71

5.4.1 Under the KPC there is a general principle of responsibility for the outcome of proceedings. 72 KPC, art 98 § 1. The obliged party has a right to seek damages arising from unjustified security in a separate claim. Provisions of the KPC list situations where security is deemed unjustified: 73 KPC, art 746 § 1.

• the statement of claim was not filed within a determined time limit;
• the statement of claim was withdrawn by the entitled party;
• the statement of claim was returned, rejected or dismissed;
• the proceedings were discontinued; and
• the entitled party did not pursue the same claim as the claim secured.

5.4.2 If two or more entitled parties obtain a joint security together, they are jointly and severally liable for damages. 74 KPC, art 746 § 2.

5.4.3 The liability of the entitled party is not based on fault 75 Polish Supreme Court judgment, 25 February 2010, V CSK 293/09. and the provisions of the KPC do not provide for exemptions from liability. However, the commonly accepted view of the legal doctrine is that the entitled party may be released from liability if the cause of damage occurred due to an event or action of a third party, which the entitled party was not able to prevent. This includes the actions of the obliged party, e.g. fulfilment of the disputed obligation towards the entitled party. 

5.4.4 In the case of performance measures, the obliged party should seek the return of amounts paid to the entitled party on the basis of the Polish Civil Code provisions regarding the return of undue performance. The provisions of the KPC regarding damage arising from an unjustified security may serve as a basis for an additional claim if damage arose exclusively from the fact of payment itself.

5.4.5 A claim for damages arising from an unjustified security can be pursued within one year of the issuance of the final judgment or after the entitled party’s time limit to file the initial petition (e.g. statement of claim) expired. 76 KPC, arts 746 § 1 and 746 § 11.  However, if the obliged party does not file a petition within one month, the deposit (which secures the obliged party’s claim for damages) may be returned upon the entitled party’s request. 77 KPC, art 746 § 3.

6.1.1 Under the KPC, awarding a security before and after the initiation of the main proceedings requires the fulfilment of the same prerequisites. 78 See paragraph 3.1.2.  However, if the entitled party obtains a security before the main proceedings are pending, it should file a statement of claim within the deadline set by the court which cannot be longer than two weeks. Failing to do so leads to the cancellation of the awarded security and may trigger the entitled party’s liability for damages towards the obliged party. 79 See paragraph 6.3.4.  Furthermore, a motion for security filed prior to initiation of the main proceedings requires the payment of a substantially higher court fee (which is later deducted from the court fee due for the filing of the statement of claim). 80 See paragraph 7.1.3.

6.2.1 After the motion has been filed, it has to be examined immediately and no later than one week after the day it is filed with the court. As an exception to the general rule, in certain situations the KPC provides for reviewing a motion for security after holding a hearing. 81 See paragraphs 5.1.1 and 6.3.2.  In such a case, the court schedules the hearing to take place within one month of the day of filing the motion. 82 KPC, art 737.

6.2.2 All time limits set in the KPC for court operations are guidelines. Hearing the motion after the set time limits does not affect the effectiveness of a decision to secure a claim. However, it may lead to the State Treasury’s liability for depriving the party of the right to have its case heard without unnecessary delay, which is regulated by a separate legal act. 83 Act on the Complaint on Infringement to Party’s Right to Have a Case Reviewed in Preparatory Proceedings Conducted or Supervised by a Prosecutor and in Court Proceedings Without Undue Delay.

6.3.1 If a motion to secure a claim is filed before the substantive claim is pending, the court awarding the security sets a time limit for the entitled party to initiate the main proceedings. Like all time limits set by courts, it may be extended or reduced by the presiding judge. 84  KPC, art 166. However, the maximum time limit for initiating main proceedings after being awarded a security for claims is two weeks 85 KPC, art 733  and the time limit cannot be reinstated, unlike a regular procedural time limit.

6.3.2 An exceptional rule applies to claims for future alimony in cases related to the establishment of paternity in accordance with the relevant provisions of the Family and Guardianship Code. The maximum time limit for initiating proceedings on the merits is three months after the birth of the child. Moreover, such security may be awarded only after holding a hearing and in a specific amount. 86 KPC, art 754.

6.3.3 The time limit starts from the day after the decision is served on the entitled party or the day after the decision awarding the security is issued in a hearing. 87 KPC, art 164.  Filing the motion with a post office of the designated postal service provider within the time limit is deemed tantamount to filing it with the court. 88 KPC, art 165 § 2.

6.3.4 Failure to initiate proceedings regarding the substantive claim within the time limit results in the cancellation of the security for claims and may result in the entitled party becoming liable for damages.

7.1.1 The litigation costs of a party represented by a professional attorney include court fees and expenses, legal fees and expenses of one attorney as well as the party’s cost of appearing in person if summoned by the court, 89 KPC, art 98 § 3.  as well as the expenses of a party exempt from bearing costs. 

7.1.2 Court fees and attorneys’ legal fees are regulated in separate tariffs, which usually set the rates at a lower level than actual legal fees. The court has wide discretion over evaluating expenses.

7.1.3 Under the Act on Court Costs in Civil Proceedings, filing a motion for security separately from the main petition requires the payment of a fixed court fee, which is PLN 100. The same fee applies to other submissions in security proceedings, such as requests for setting aside or modification of awarded security. However, if security is requested before initiating the main proceedings on the merits, the required court fee equals 25% of the court fee for filing a statement of claim (i.e., up to PLN 50,000). This amount is later deducted from the court fee required at the moment of filing the statement of claim. Further costs are incurred at the stage of enforcement of the security, in accordance with the provisions on enforcement proceedings. The bailiff may demand an advance on the estimated costs of enforcement proceedings.

7.1.4 The most significant cost is the bailiff’s charge, paid for filing the request for enforcement of a decision awarding security. According to the Act on Costs of Bailiffs, the amount is 5% of the secured claim, but not less than PLN 150 and not more than PLN 50,000, in the case of security of monetary claims or European security on a bank account. In addition, several detailed rules and exceptions apply where an awarded security aims at making a payment to the entitled party. In the case of other types of security, the bailiff’s charge in PLN 300. The above fees are payable irrespective of the outcome of the enforcement proceedings and can later be reimbursed in the main proceedings. Nonetheless, there is a particular risk that, after the fee is paid, no security is actually established, e.g. because of the lack of funds in the obliged party’s bank account.

7.2.1 Under a general rule of the KPC, a party requesting the court to take any actions that entail expenses should pay an advance on costs. 90 KPC, art 1304 § 1. Similar rules apply to bailiff’s actions at the stage of execution (where security can be enforced through execution). The question of whether a court or a bailiff would order a party to pay an advance in security proceedings is fact-specific. In practice, such expenses may include, for instance, costs of certified translations of documents and postal service abroad in cases involving parties from different countries.

7.2.2 Furthermore, if a claimant’s place of residence is outside the European Union, a defendant may demand that the claimant pays a deposit securing future litigation costs. 91 KPC, art 1119.  Exemptions from this obligation are rather limited. 92 KPC, art 1120.  Nonetheless, a defendant should in principle file such a demand before entering the dispute on the merits. 93 KPC, art 1121.

7.2.3 In addition, as mentioned above, 94 See paragraphs 5.3.1-5.3.2.  a court may order the entitled party in security proceedings to pay a deposit to secure the obliged party’s or third person’s future claims for damages that may arise as a result of enforcing the security for claims.

7.3.1 The court awards reimbursement of the costs incurred in the proceedings to secure a claim in the final judgement on the substantive claim. As the security may last beyond the moment of issuing the final judgment, costs which arise afterwards are awarded upon the party’s request by the court which awarded the security in the first place. 95 KPC, art 745 § 1.

7.3.2 If a security is awarded before the substantive case commences, the court awards the costs upon the request of (i) the obliged party, if the entitled party failed to initiate the proceedings on the merits, or (ii) the entitled party, if the obliged party fulfilled the disputed obligation. 96 KPC, art 745 § 2.

7.3.3 The general rule set out in the KPC provides for reimbursement of the winning party’s litigation costs up to a reasonable degree. However, depending on the circumstances, a court may divide the litigation costs between the parties in a different manner, in particular where a winning party acted “inappropriately” (for example, did not appear at a hearing when summoned). 97 KPC, art 103. The term “litigation costs” also covers the costs incurred in connection with interim proceedings to secure a claim. The reimbursement of litigation costs is granted upon request. 98 KPC, art 98 § 1.  In order to receive the reimbursement of costs other than court fees and expenses, the motion must include a list of costs or a request to award costs according to applicable tariffs. The list of costs or a request to resort to applicable tariffs must be brought before closure of the last hearing in the current instance at the latest. 99 KPC, art 109 § 1.  Reimbursement of litigation costs cannot be claimed in separate proceedings.

8.1.1 An interim decision securing a claim is subject to automatic cancellation if the obliged party pays the amount of security indicated in the motion for security to the Minister of Finance's deposit account. Cancellation of the awarded security is also automatic in the following situations: 100 KPC, art 744.

• the statement of claim was finally returned, rejected or dismissed;
• the proceedings were discontinued; or
• the entitled party did not timely pursue the same claim as the claim secured.

A decision confirming the automatic cancellation requires the obliged party’s explicit request.

8.1.2 The obliged party can always file a motion to set aside or modify the decision awarding the security for claims, if the grounds for such security change or cease to exist. 101 KPC, art 742 § 1.  In other words, any facts which affect (i) the probability of the existence of the claim, (ii) the legal interest in obtaining the security, or (iii) the proportionality of the security, may contribute to the modification or cancellation of the security.

8.1.3 Before issuing a decision on the cancellation or limitation of a security, the court should grant the entitled party an opportunity to present its position. 102 KPC, art 742 § 2.  If the decision is appealed, its enforcement is suspended and the security cannot be changed. 103 KPC, art 742 § 3.

8.1.4 The obliged party may support an attempt to modify the security by depositing a certain amount of money in the Minister of Finance's deposit account. If this amount is lower than the amount of the security requested by the entitled party, it does not lead to automatic cancellation. However, the court may deem it sufficient and decide to limit or cancel the security. In such an event, the court needs not to hear the entitled party before rendering its decision, and the enforcement of the modifying decision is not suspended when appealed. 104 KPC, art 742 § 4.

8.1.5 The motion to set aside or modify the decision awarding a security can be filed only by the obliged party. If the entitled party requests the modification of a security, such request is treated as a new, independent motion for security. 105 Polish Supreme Court ruling, 29 July 1954, II C 757/53.

Outline of the Polish appellate system

8.2.1 In the Polish appellate system, the general rules for appealing court decisions are set out in articles 394-398 of the KPC. These provisions apply to various types of proceedings, including appeals in interim proceedings to secure a claim. 106 KPC, art 13 § 2. A reasoned appeal should be filed within one week from: 

• announcing the decision with regard to security in a hearing or receiving this decision with a reasoning, if requested by a party or, 
• receiving the decision with regard to security issued outside of a hearing (in camera) or receiving this decision with a reasoning, if requested by a party. 107 KPC, art 394 § 2.

Appeal in interim proceedings to secure a claim

8.2.2 Most kinds of decisions may be appealed, including orders awarding, modifying and cancelling a security. The decision awarding the costs of interim proceedings to secure a claim can be appealed whether or not a party appeals the decision on its merits. 108 KPC, art 394 § 1 (6).

8.2.3 However, only decisions on applications for security issued by a court of first instance can be appealed. 109 KPC, art 741 § 1.  Appeals are reviewed by a panel of three judges of the same court which issued the appealed decision. 110 KPC, art 741 § 2.  Therefore, if the motion for security is filed with the court of second instance, its decision will be final.

8.2.4 Filing an appeal requires the payment of a court fee in the amount of PLN 30. 111 Polish Supreme Court resolution, 16 March 2007, III CZP 4/07

8.2.5 In general, only appealing a decision on the modification or cancellation of a security automatically suspends its enforcement. 112 KPC, art 742 § 3. However, enforcement of other types of decisions may be suspended by the court. 113 KPC, art 396.

9.1.1 Interim decisions on security for claims (i) are enforced by enforcement authorities in accordance with the provisions on enforcement, or (ii) do not require to be enforced by enforcement authorities, or (iii) do not require enforcement at all. The exact mode of enforcement depends on the type of security awarded. 

9.1.2 The first mode, enforcement by enforcement authorities, is definitely the most common. In general, the enforcement authority is the bailiff. Exceptionally, in situations indicated in the relevant provisions on enforcement proceedings, the court takes the role of the enforcement authority. 114 KPC, art 759.  The entitled party has to file a motion for commencement of enforcement with the competent authority. 115 KPC, art 796 § 1.  In certain situations, this motion can also be filed by the court and other authorities.

9.1.3 The enforcement proceedings are conducted on the basis of enforcement titles, which are in general execution titles (such as court rulings or notarial deeds) bestowed with an enforcement clause (exequatur). 116 KPC, art 776  In interim proceedings to secure a claim, an enforcement clause is added ex officio by the court issuing the decision awarding security. 117  KPC, art 743 § 1. Given that decisions to secure a claim are in general enforced despite the obliged party filing an appeal, 118 See paragraph 8.2.5. the enforcement clause is included already in the non-final decision. In the next stage, the enforcement title must be attached to the motion for commencement of enforcement. 119 KPC, art 797.

9.1.4 As discussed above, 120 See paragraph 4.1.2.  a court’s decision called an “order of payment”, even if challenged, serves as an enforcement title equal to a decision awarding security, without the need to add an enforcement clause. 121 KPC, art 492 § 1. However, it does not contain a method of security, which has to be indicated by the entitled party in the motion for commencement of execution. 122 KPC, art 492 § 2.  Similar rules apply to foreign court’s rulings after they have been recognized by a Polish first instance court. 123 See paragraph 4.1.2.

9.1.5 The issue of geographical jurisdiction in enforcement proceedings is not regulated by any general principle. The place where the motion for commencement of enforcement has to be filed depends on the manner of enforcement. For example, enforcement with regard to real property is conducted at the venue where the particular property is located, 124 KPC, art 921 § 1.  while the attachment on remuneration for work is enforced at the venue where the debtor is domiciled. 125 KPC, art 880.  In addition, the Act on Court Bailiffs lists a number of instances where a party may be allowed to file the motion to the bailiff of its choice.

9.1.6 Some legal authors indicate that, in the light of the mode of its enforcement, it is possible to distinguish an additional type of decisions securing a claim. Such decisions should be voluntarily executed by the obliged party and are enforceable by enforcement authorities if the obliged party does not do so. An interim decision awarding security by ordering the obliged party to pay alimony is an example of such type of security. If payments are not made, the interim decision can be enforced by the enforcement authorities. 

9.1.7 Enforcement of the second type of interim decision – awards on security which are not enforced by enforcement authorities – is as follows: a notice of enforcement is added by the presiding judge ex officio. 126 KPC, art 743 § 2.  Subsequently, the decision awarding security is enforced by efforts of the entitled party, undertaken before other authorities, such as the mortgage court. The entitled party has to prove the enforceability of the interim decision by presenting the notice of enforcement to the relevant authorities.

9.1.8 Such types of interim decisions include for example:

• mortgaging the obliged party’s immovable property;
• mortgaging a ship or a ship under construction;
• prohibiting the sale of a cooperative title to premises; or
• prohibiting the sale and/or encumbrance of immovable property which does not have a land and mortgage register or whose land and mortgage register has been lost or destroyed.

9.1.9 The third type of interim decision awarding a security are those which do not need to be enforced and do not require any subsequent actions of the entitled party or the court. Suspension of execution proceedings or other proceedings aimed at enforcing the ruling are examples of such type of interim decisions. 127 KPC, art 755 § 1 (3).

9.2.1 As mentioned in paragraph 1.1.3, foreign elements in the Polish civil procedure are regulated in Part Four of the KPC. Foreign rulings awarding interim measures are subject to the provisions which regulate the recognition and enforcement of rulings issued by foreign courts in general. 128 KPC, art 1145 et seq. However, the enforcement of interim measures in Poland falls under the exclusive jurisdiction of Polish courts. 129  KPC, art 11104 § 1 and § 2. Therefore, while a foreign court may issue a decision awarding a security enforceable in Poland, only Polish courts would be competent with regard to the phase of enforcing such decision (for instance, with regard to supervising execution conducted by a bailiff or making entries in the land and mortgage register). Consequently, the ruling of a foreign court concerning the phase of enforcement of an interim measure in Poland would neither be recognised 130 KPC, art 1146 § 1 (2).  nor enforced 131 KPC, art 1150.  in Poland.

9.2.2 Nonetheless, as Poland is a member of the European Union and a signatory to the Lugano Convention, the provisions of European regulations and of the Lugano Convention are granted priority over the provisions of the KPC. A foreign ruling awarding interim measures, which is enforceable in another member state, may be enforced in Poland.

9.2.3 With respect to the Lugano Convention, the enforcement of a foreign ruling is conducted in accordance with the relevant provisions of both the Lugano Convention and the KPC. In particular, the annexes to the Lugano Convention list the authorities and legal means with regard to the enforcement of foreign rulings in Poland.

9.2.4 The applicability of the Lugano Convention under Polish law has diminished considerably since Poland’s accession to the European Union. In Poland, the enforcement of rulings issued in other EU member states in civil and commercial matters is regulated by the Brussels I-bis Regulation. 132 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. In matters concerning matrimony and parental responsibilities, the relevant regulation is enshrined in Council Regulation (EC) No 2201/2003. 133 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility

10.1.1 Polish state courts may award a security prior to or in the course of proceedings before an arbitral tribunal, 134 KPC, art 1166 § 1.  including cases where the seat of arbitration is abroad or not determined. 135 KPC, art 1166 § 2.

10.1.2 As mentioned above, interim decisions awarding a security can be obtained before commencement of the main proceedings. In such instances, the court orders the entitled party to initiate the main proceedings on the merits within a fixed time limit. Filing the statement of claim with an arbitral tribunal, even with its seat abroad, 136 Polish Supreme Court decision, 18 February 1993, I CRN 6/93.  is sufficient to comply with this order. 

10.2.1 An arbitral tribunal is empowered to issue an interim decision awarding security for claims, unless otherwise agreed by the parties. 137 KPC, art 1181 § 1.  However, proceedings to secure a claim before arbitral tribunals differ significantly from those conducted before state courts. The conduct of proceedings is performed in accordance with the general rules on arbitration encompassed in Part Five of the KPC.

10.2.2 The arbitral tribunal may award a security for claims, but the applicable provisions of the KPC are very general, as compared to security awarded by state courts. In particular, statutory provisions do not impose on arbitral tribunals any time limits for awarding a security, methods for securing a claim or prerequisites that have to be fulfilled to award a security. However, more specific regulations may stem from arbitration rules applicable in a particular dispute. The enforcement of a decision of the arbitral tribunal awarding a security may be conditional on the entitled party providing a deposit. Most legal authors indicate that contrary to state courts, arbitral tribunals may not award security for claims in ex parte proceedings.

10.2.3 Due to the particular character of the arbitral proceedings, appellate measures do not apply to the decisions of arbitral tribunals. The decision may be modified or revoked by the arbitral tribunal upon request of a party; 138 KPC, art 1181 § 2.  however, the prerequisites are not indicated in the KPC. Furthermore, a security awarded by an arbitral tribunal is not subject to automatic cancellation.

10.2.4 Unlike decisions awarding security issued by state courts, decisions rendered by arbitral tribunals are not bestowed with an enforcement clause ex officio. Rather, the enforcement of such an interim decision requires obtaining an enforcement clause 139  KPC, art 1181 § 3. in separate proceedings before the state court. 140 KPC, arts 781 et seq.

10.2.5 Decisions of arbitral tribunals awarding security are treated similarly to arbitral awards. The court may dismiss the motion for granting the writ of enforcement on the same grounds as applicable with respect to final arbitral awards on the merits. 141 KPC, art 1214 § 2 and § 3.

10.3.1 An interim decision awarding interim measures, issued by an arbitral tribunal with its seat abroad may be enforced in a similar manner. The enforcement requires holding a hearing. 142 KPC, art 1215 § 1.  The state court may refuse the enforcement for the same reasons as in the case of awards rendered by arbitral tribunals with their seat in Poland. Furthermore, upon the request of a party, the state court may refuse the confirmation of enforcement of a foreign arbitral award for additional reasons, as listed in the KPC, 143 KPC, art 1215 § 2.  which in turn generally reflect the regulation enshrined in the New York Convention. 144 The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.