What's new at DZP?
Experts from DZP's Tax Practice and Infrastructure & Energy Practice have successfully represented Biskupiec municipality before the Supreme Administrative Court (SAC) in a precedential case over the unfounded imposition of financial adjustments by the Authority Managing the Regional Operational Programme in connection with EU funding for a road construction project in Biskupiec.
The appeal proceedings ended successfully when the SAC passed a judgment on 17 April 2013 dismissing the appeal brought by the Managing Authority (Warmińsko-Mazurskie voivodship management board) and upholding the judgment of the Voivodship Administrative Court in Olsztyn of 6 October 2011 which overturned an earlier Managing Authority decision imposing the adjustments.
The dispute in the case involved the meaning of certain provisions of the Public Procurement Law and European law and also their application to contracts awarded by the Biskupiec municipality. The Managing Authority accused the municipality of irregularities in the structuring of the terms and conditions for participating in public procurement procedures. The SAC, referring to the said issues, upheld in full the approach taken during the proceedings by the municipality, i.e. as regards the meaning of both the EU and domestic law provisions.
Crucially, the SAC upheld the municipality's view that the "irregularities" referred to in article 2(7) of Council regulation (EC) no. 1083/2006 of 11 July 2006 (and which have to be demonstrated for financial adjustments to be imposed by a managing authority) constitute a qualified case of breach of public procurement law. Thus not every potential breach of public procurement regulations have to lead to financial adjustments being imposed.
Equally important is the fact that the SAC confirmed that the document drawn up by the Ministry for Regional Development on levying financial adjustments for breach of the Public Procurement Law relating to the implementation of projects co-financed by EU funds (i.e. tariff) is not a source of law and cannot be treated as the basis for imposing financial adjustments. The mere fact that the said error appears in the tariff does not mean that each breach of public procurement law of this type will necessarily lead to the imposition of financial adjustments.
The attorneys acting for the Biskupiec municipality before the SAC were Tax Practice experts, Artur Nowak and Jan Czerwiński. Experts from the Infrastructure & Energy Practice, inter alia, Katarzyna Kuźma and Wojciech Hartung, were also involved in the case.
Our experts take the view that the SAC judgment is a breakthrough as regards the imposition of financial adjustments by managing authorities. In light of the SAC's stance, before imposing financial adjustments a managing authority should carry out a thorough assessment of whether a breach found during public procurement procedure inspections is covered by the definition of irregularity given in Council Regulation (EC) no. 1083/2006. Only if it is found that such a situation has in fact occurred can the imposition of financial adjustments be deemed admissible and justified.
From 25 May 2018 the General Data Protection Regulation (GDPR) applies in Poland and other European Union countries. We would therefore like to give you several details on the subject of how DZP processes personal data.
The administrator of the personal data is Domański Zakrzewski Palinka Sp.k. (“DZP”; address: Rondo ONZ 1, 00-124 Warszawa). Data are processed for contact purposes and to impart information on changes to provisions and authority practices and on other issues, including events concerning day-to-day legal, economic and cultural issues, inter alia, by sending DZP newsletters. The above is carried out on the basis of legitimate interests, i.e. in accordance with art. 6(1)(f) of the GDPR. Data can also be processed where necessary for the conclusion or performance of a contract and for compliance with a legal obligation to which DZP is subject, i.e. pursuant to art. 6(1)(b) and (c) of the GDPR. Data can be transferred to entities with whose help DZP achieves the indicated aims, including entities maintaining IT infrastructure. Giving data is voluntary and in contractual relations is a requirement for concluding and performing a contract. It is possible to object to data processing, request access to, rectification and erasure of personal data or restriction of processing and data portability. Data are kept until an objection is made, and in contractual relations – throughout the term of the contract and thereafter for a period specified in provisions on archiving and limitations period for claims. Anyone has the right to file a complaint with the President of the Personal Data Protection Office. Questions concerning privacy at DZP can be sent to DZP’s Data Protection Inspector, Macieja Maciejewskiego, at: email@example.com.
New rules on cookies: Domański Zakrzewski Palinka sp.k., as the service provider of the www.dzp.pl website, stores and accesses cookies, i.e. small text information fles sent by a web server and stored on your hard drive, or other data storage medium of a user, for the purposes of: proper functioning of the www.dzp.pl website, confguring the www.dzp.pl website, security and reliability of the www.dzp.pl website, session monitoring, providing advertisements, personalization of the displayed information to the user, or analysis, statistics, research and website trafc auditing.