It can be said that on April 15^th 2014 one of the most important adjudication for the public procurement practice of recent years was given.

In its judgment in case no. SK 12/13 the Constitutional Tribunal ruled on the inconsistency of Article 34 paragraph 2 of the Act of July 28^th 2005 on court fees in civil cases (consolidated version: Journal of Laws of 2010 No. 90, item 59, as amended) with Article 45 paragraph 1 in connection with Article 31 paragraph 3, Article 77 paragraph 2 and Article 78 of the Polish Constitution. The provision of law in question, as of December 22^nd 2009, provided that a complaint against a pronouncement of the National Appeals Chamber referring to activities in the public procurement proceedings made after the opening of tenders is subject to the proportional fee in the amount of 5 per cent of the value of the contract in the proceedings which complaint relates to, but no more than 5,000,000 PLN. For comparison, in the prior version of the provision of law in question the said fee had been constant and had amounted to 3,000 PLN. The proportional fee of such astronomical upper limit (corresponding to fifty times the upper limit of the proportional fee in civil cases concerning property rights – according to Article 13 paragraph 1 of the Act on court fees in civil cases) has effectively limited the parties’ opportunity to complaint against pronouncements of the National Appeals Chamber to district courts, especially in cases referring to contracts for construction works whose value is often  counted in the tens or hundreds of millions of PLN. The Constitutional Tribunal came to the conclusion that Article 34 paragraph 2 of the Act violates the right of access to court, the right to appeal against judgments and decisions made in the first instance executed before district court, and also establishes disproportionate conditions of an appeal measure to the court.

Interestingly, only on January 14th 2014, the Constitutional Tribunal, recognizing combined constitutional complaints of other entities in a different composition in case no. SK 25/11 ruled that Article 34 paragraph 2 of the said Act, insofar as it determines the proportional fee for complaint, is consistent with Article 45 paragraph 1 in connection with Article 31 paragraph 3, Article 77 paragraph 2 and Article 78 of the Polish Constitution.

Hopefully, making the judicial appellate review of the activities of the National Appeal Chamber more real will have a positive impact on the development of the case law in the field of public procurement.