The request to convene the conciliation session will not interrupt the course of the prescription – Commentary
Conciliation – brief history of the controversy
What will change in 2022?
On December 29, 2021, an amendment to the Polish Civil Code (CC)(1) was announced in the Journal of Laws of the Republic of Poland.(2) The law amends, inter alia, Article 121 CC, which specifies when a limitation period is suspensive. This amendment should be seen as a new measure taken by the Polish legislator to counteract the practice of submitting proposals to convene a conciliation session for purposes other than seeking a settlement.
Conciliation – brief history of the controversy
Until recently, the opening of a conciliation procedure was one of the most frequently used instruments to interrupt the limitation period. It was a convenient solution because the filing fee did not exceed 300 zlotys (until 2019). In addition, the request to convene a conciliation session initially required only a brief description of the case, and the conciliation procedure could be limited to a single hearing before the court to determine whether an agreement had been reached between the parts.
At the same time, there was initially no doubt that each request to convene a conciliation session interrupted the limitation period, since doctrine and case law considered the opening of the conciliation procedure as “an act carried out directly to satisfy the request”, which, according to article 123, paragraph 1, of the CC, interrupts the limitation period. The interruption of the prescription is beneficial for the creditor because, after an interruption, the prescription runs again (article 124 al. 1 CC).
It is therefore not surprising that the filing of a request to summon a conciliation session for a purpose other than the effective settlement of the claim has become common practice. This, in turn, has given rise to considerations in the case law as to whether such a request leads to the interruption of the limitation period in each case. The courts began to have doubts as to whether in all cases it should be characterized as “action taken directly to satisfy a claim”, especially if the party initiating the conciliation procedure had not intended to make a deal but only wanted to interrupt the statute of limitations. Although other conceptions also exist in case law, the opinion which currently prevails is that the first request to convene a conciliation session always entails the interruption of the limitation period. At the same time, the view that every petition (i.e. not just the first) interrupts the statute of limitations was recently supported by the Supreme Court in its judgment of June 17, 2021.(3)
However, there is no consensus as to whether subsequent motions also have such an effect. Several different points of view have emerged on this subject. According to one view, a subsequent request to summon a conciliation session also interrupts the running of the limitation period, but only if the creditor hoped that a settlement would take place in the context of the conciliation and did not file the request. only to interrupt the prescription period. In addition, within this framework, two positions have been developed as to who has the right to examine the real subject matter of the motion. The first view is that such an assessment can only be carried out at the stage of the conciliation itself, while the opposite view assumes that it can also be carried out later, after the end of the conciliation, in the procedure during which the merits of the claim are assessed.
These discrepancies in case law led the Supreme Court to refer the issues described above to the extended bench of the Supreme Court for resolution(4). To date, the resolution has not been adopted.
The practice of using the conciliation procedure for purposes other than the settlement of claims has also not escaped the attention of the legislator. The first attempt to limit this practice was made in 2019(5) when a requirement was introduced that a request for a summons to a conciliation session must state proposed settlements and the filing fee was significantly increased (it is now one-fifth of the normal filing fee stipulated for the declaration). However, the provisions relating to the limitation period remained unchanged.
What will change in 2022?
As the above amendments have not removed the remaining doubts as to whether motions to summon a conciliation session interrupt the limitation period and, if so, in what circumstances and who must judge it, the legislator made a new attempt to resolve the problem, this time by modifying not the procedural provisions relating to the request for a summons to a conciliation session, but the provisions of substantive law relating to the prescription of claims.
The modification of the statute of limitations, which was announced on December 29, 2021, will enter into force on June 30, 2022. So far, the substantive statute of the statute of limitations has not mentioned the request to convene a conciliation session. The amendment directly mentions such a motion; however, it is not listed in article 123 of the CC, which specifies the actions interrupting the prescription, but in article 121 of the CC, which specifies the situations in which the prescription is only suspended and does not run for a specified period. obstacle. As of June 30, 2022, one of these impediments will be the conciliation procedure: the limitation period for the claims covered by a request to convene a conciliation session will not run for the duration of the conciliation procedure (new article 121.6 CC).
Article 121 of the CP in its new wording will only apply to conciliation procedures initiated after June 29, 2022. Thus, with regard to requests to convene a conciliation session presented before and on June 29, 2022, all previous doubts remain valid.
The effect of the modification will be that the conciliation procedure will continue to extend the limitation period, but will not cause the period to run again. The duration of the conciliation procedure will only be added to the limitation period for the complaint provided for by law.
The amendment will remove doubts as to whether the request to summon a conciliation session interrupts the limitation period, and if so, under what circumstances. The answer to this question will become obvious – in no case will this request interrupt the course of the prescription. Such an objective of this amendment flows directly from the reasons for the proposed amendment. This will undoubtedly seriously limit creditors’ interest in conciliation proceedings. From June 30, 2022, by initiating a conciliation procedure, the creditor will still gain time to prepare the right procedure against his debtor, but will not gain double this time.
Moreover, despite appearances, this amendment may also have positive effects for creditors, since they will no longer live in uncertainty as to which of the many opinions on the effect of the request to summon a conciliation session on prescription be accepted by the court in their case. This effect will be known from the start.
For more information on this subject, please contact Julita Zawadzka or Agata Ziobroń in Kubas Kos Gałkowski by telephone (+48 22 206 83 00) or by e-mail ([email protected] or [email protected]). The Kubas Kos Gałkowski website can be accessed at www.kkg.pl.
(4) Judgment of the Supreme Court of October 16, 2020, IV CSK 107/20 (IV CSKP 1/21), available here.