European Commission > EJN > Applicable law > Poland

Last update: 30-08-2007
Printable version Bookmark this page

Applicable law - Poland

EJN logo

This page is now obsolete. The update is currently being prepared and will be available in the European e-Justice Portal.


 

TABLE OF CONTENTS

I. Sources of law I.
I.1. National law I.1.
I.2. Multilateral international agreements in force I.2.
I.3. Principal bilateral conventions in force I.3.
II. Implementation of conflict of laws rules II.
II.1. Obligation of the court to apply private international law II.1.
II.2. Renvoi II.2.
II.3. Change of connecting factor (le conflit mobileII.3.
II.4. International public order clause (ordre public) and overriding mandatory rules II.4.
II.5. Proof of foreign law II.5.
III. Conflict of laws rules III.
III.1. Contractual obligations III.1.
III.2. Non-contractual obligations III.2.
III.3. Personal status – individuals and legal persons III.3.
III.4. Establishment of parent-child relationship, including adoption III.4.
III.5. Marriage, unmarried couples, partnerships, divorce, judicial separation, maintenance obligations III.5.
III.6. Matrimonial property regimes III.6.
III.7. Wills and successions III.7.
III.8. Property and rights in rem III.8.
III.9. Insolvency III.9.

 

I. Sources of law

I.1. National law

The source of the rules governing international relations between individuals and legal persons is national law and international agreements.

The most significant amongst the sources of Polish private international law is the Private International Law Act of 12 November 1965.

I.2. Multilateral international agreements in force

Poland is a party to many multilateral conventions containing conflict of law provisions, in particular:

Conventions relating to family and guardianship issues:

The Hague Convention of 12 June 1902 relating to the settlement of guardianship of minors, the Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors, the Hague Convention of 17 July 1905 relating to deprivation of civil rights and similar measures of protection, the Hague Convention of 2 October 1973 on the law applicable to maintenance obligations.

Conventions relating to inheritance issues:

The Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions.

Conventions relating to citizenship:

The Hague Convention on certain questions relating to the conflict of nationality laws and the Protocol relating to a certain case of statelessness and the Convention on the nationality of married women, open for signature in New York on 20 February 1957.

I.3. Principal bilateral conventions in force

The bilateral conventions concluded by Poland relate to legal aid and cooperation in civil, family, employment and criminal cases. Conventions with the following countries should be mentioned: Austria, Algeria, France, Belarus, Bulgaria, Czech Republic, Estonia, Finland, Democratic People’s Republic of Korea, Cuba, Libya, Lithuania, Latvia, Macedonia, Russia, Romania, Serbia and Montenegro, Ukraine, Hungary, Socialist Republic of Vietnam.

TopTop

II. Implementation of conflict of laws rules

II.1. Obligation of the court to apply private international law

In order to evaluate the legal facts and events proved or admitted by the parties and material to the case, the court will apply the applicable law ex officio, whether or not the parties to or the participants in the proceedings invoke such law.

A foreign law must be applied as a law (not a fact) and in accordance with the principles adopted in its country of origin, taking into account both the foreign sources of law (including common law) and the foreign rules of its interpretation. This occurs independently of the mutual application, in similar circumstances, of Polish law by another country on the basis of the conflict of laws provisions.

II.2. Renvoi

Poland accepts the concept of renvoi in private international law, although under Polish law the possible application of renvoi is limited. The Polish conflict of laws provisions permit reverse renvoi. Article 4(1) of the Private International Law Act stipulates that, if a foreign law, indicated as the applicable law by the Act, provides for a given legal relationship to be governed by Polish law, then Polish law will apply.

Polish law also permits the so-called further renvoi. In accordance with Article 4(2) of the Act, if a foreign national law indicated as applicable by the Act stipulates that a given legal relationship must be governed by other foreign law, such other foreign law will apply. This provision restricts renvoi only to the law of the country indicated as the third consecutive law, regardless of whether the conflict of laws provisions of the third country indicate the law of some other country as the applicable law.

TopTop

II.3. Change of connecting factor (le conflit mobile)

Le conflit mobile occurs if the parties, through their actions, change the circumstances of the case so that the conflict of laws norm indicates a law other than the law that applied before the change in the circumstances. For example, in accordance with Article 24(1) of the Private International Law Act, ownership and other rights in rem are governed by the law of the country in which the subject thereof is situated. However, in the event of a transfer of movables from one country to another, a change of statute (applicable law) will occur at the moment when the movable crosses the border of the country of shipment. A question would then arise as to which statute should be applied to assess the particular elements of the legal relationship in relation to which the applicable law has changed. The problem relates mainly to the location of the movable in the case of property rights to movables, but also to changes in citizenship, domicile, residency or registered seat of a legal person.

The Private International Law Act does not regulate this issue generally, although it does contain some specific solutions. For example, as regards property rights to movables, Article 24(2) of the Act provides that the acquisition and loss of the ownership title, as well as the acquisition and loss, and a change in the content or priority of, other property rights, are governed by the law of the country in which the subject of such rights was located at the time of the event resulting in the legal consequences described above.

In unregulated cases, it is generally assumed that the relations recorded under a previous statute will change only to the extent required by a new statute.

TopTop

II.4. International public order clause (ordre public) and overriding mandatory rules

Article 6 of the Polish Private International Law Act provides for the public order clause, pursuant to which a foreign law may not be applied if the application thereof would result in a contravention of the fundamental principles of legal order of the Republic of Poland. The public order clause can be applied in exceptional cases only, if a foreign law contravenes the most fundamental principles of legal order in force at the time of the judicial decision. Furthermore, before this clause is applied, it would be necessary to consider not so much the differences between the provisions of the national and the foreign laws, but the consequences of the application of these two legal systems in a specific situation. After all, it is possible that, notwithstanding the radically different provisions, the application of the legal norms from different legal systems may have similar consequences, thus excluding the application of Article 6 of the Private International Law Act.

The overriding mandatory rules (lois de police) have a similar role to the public order principle. These are special norms of the law which, although not applicable pursuant to the conflict of laws provisions of the foricountry, is closely connected with the case. They may be the legal norms of the fori country or of a third country. These norms are absolutely mandatory and their “intention” is to be applied to a given legal position.

The possibility of a Polish court applying Polish law norms as overriding mandatory rules, if a foreign law is indicated as the law applicable to a given case, has not been provided for in the conflict of law provisions. Such a possibility is, however, suggested both by academic writers and judicial decisions.

TopTop

II.5. Proof of foreign law

The consequence of the application in the Polish civil procedure of a foreign law ex officio is the imposition on the court of the obligation to apply the same to each case where it arises from the legal norms applicable to the assessment of the circumstances material to the determination of the case. This involves the court’s obligation to establish the contents of the foreign law, the principles of its interpretation and the foreign judicial decisions.

III. Conflict of laws rules

III.1. Contractual obligations

Sources of the law

Under Polish law, the issue of the law applicable to contractual obligations is regulated in Articles 25 to 31 of the Private International Law Act. However, the issues relating to the law applicable to contractual obligations are also regulated by bilateral and multilateral agreements, and by the provisions of the national law implementing the conflict of laws provisions of the sectoral directives. Such regulations have priority of application over the provisions of the Act.

Applicable law

The provisions of the Private International Law Act introduce, as a general principle, the freedom of choice of law by the parties. In accordance with Article 25(1) of the Act, the parties may submit their mutual relations as regards their contractual obligations to the law selected by them, if such law is connected with the obligation. “To be connected with the obligation” means a certain objective connection of the legal relationship to the state whose law has been selected by the parties (through the place of execution or implementation of the agreement, place of residence or registered office of the contracting parties etc.). The choice of law applies only to obligations with an international element, and is excluded if the obligation relates to real estate (Article 25(2) of the Act).

TopTop

If no choice of law has been made, the Act provides for a number of objective connecting factors. The application of such connecting factors necessitates the preservation of a certain order. For example, in accordance with Article 28 of the Act, obligations arising under stock exchange contracts are governed by the law in force at the registered office of the stock exchange, unless the parties have made a different choice of law. This provision applies accordingly to the obligations arising under contracts concluded at trade fairs. If the registered offices or places of residence of the parties are located in the same country, then, pursuant to Article 26 of the Act, the law of that country would apply (this provision does not apply to obligations relating to real estate). Pursuant to Article 27 of the Act, the obligations arising under an agreement for the sale of movables, a supply agreement, a contract to carry out a specific task or work, services agreement, agency agreement, consignment agreement, shipment agreement, forwarding agreement, safekeeping agreement, storage agreement, insurance contract and an agreement for the transfer of copyright, are governed by the law of the place of residence or registered office of the party obliged to provide a specific service (provided that, as regards the obligations arising under agreements concluded in relation to an undertaking, instead of the law of the country in which the registered office of the legal person or the place of residence of an individual are located, the law of the country in which the registered office of the undertaking is located will apply – Article 27(3) of the Act).

The Polish legislative acts do not contain any general conflict of laws provisions as regards the law applicable to consumer relations, which would correspond to Article 5 of the Rome Convention. If the circumstances of the case do not fall under the national laws implementing the conflict of laws provisions of the consumer directives, the law applicable in accordance with the general rules governing obligations should be applied to any cross-border disputes involving consumers.

TopTop

As regards unilateral legal deeds, in accordance with Article 30 of the Act, the provisions relating to the law applicable to contractual obligations will apply accordingly.

Scope of application of the applicable law

The contractual statute (and the statute governing unilateral legal deeds) determines, among others, the possibility of conducting a specific legal transaction and the factors determining its validity. However, the capacity as a pre-determinant of a legal transaction is assessed in accordance with personal status, whilst the issue of the law applicable to its form is regulated separately in Article 12 of the Private International Law Act.

Furthermore, the law applicable to a legal transaction specifies the rules relating to the interpretation of the statements of will, terms and deadlines, the contents of the contractual relationship, non-performance or inadequate performance of an obligation, the method and scope of compensation, amendment, expiry of an obligation and transfer of an obligation (e.g. by way of an assignment).

III.2. Non-contractual obligations

Sources of the law and their relationship

Under Polish law, the issue of the law governing non-contractual obligations is regulated in Article 31 of the Private International Law Act. However, similarly to contractual obligations, issues relating to the law applicable to non-contractual obligations are also regulated by bilateral and multilateral agreements, and by the provisions implementing the conflict of laws provisions of the sectoral directives. These regulations have priority of application over the provisions of the Act.

TopTop

As regards the law applicable to road traffic accidents, the 1971 Hague Convention on the law applicable to traffic accidents (to which Poland is a party) has precedence of application.

Within the scope of their implementation, the provisions implementing the conflict of laws provisions of the sectoral directives (e.g. as regards the protection of consumers) also have priority over the provisions of the Act.

Applicable law

Article 31(1) and (2) of the Private International Law Act provides that a non-contractual obligation is governed by the law of the country in which the event being the source of the obligation occurred. However, if the parties are the citizens of the same country and are domiciled there, the law of that country will apply.

III.3. Personal status – individuals and legal persons

Sources of the law

Under Polish law, the issue of the law applicable to the legal capacity of individuals and legal persons are regulated in Articles 9 to 11 of the Private International Law Act.

Applicable law

The general rule is introduced by Article 9(1) and (2) of the Private International Law Act. In accordance with that provision, the legal capacity of an individual and his/her capacity to conduct legal transactions is subject to his/her national law, whereas the legal capacity of a legal person is subject to the law of the country in which its registered office is located. By the registered office of a legal person the legal doctrine means the actual seat of its main governing bodies (the management board).

The connecting factors of nationality and registered office as regards the personal status of individuals and legal persons respectively, are subject to certain exceptions. First, as regards the legal capacity of a legal person, some bilateral conventions provide for the application of the law of the country in which such person was incorporated.

TopTop

Secondly, if a legal person or an individual conducts a legal transaction in relation to an undertaking, the legal capacity of such person or individual will be governed by the law of the country in which the registered office of the undertaking is located (Article 9(3) of the Act).

Thirdly, Article 10 of the Act provides that, if a foreigner, having no legal capacity under his/her national law, has conducted a legal transaction in Poland that is supposed to have an effect in Poland, the legal capacity of such foreigner will, to that extent, be subject to Polish law, if required due to the protection of the persons acting in good faith. This provision, in the same way as Article 11 of the Rome Convention, is aimed at protecting the good faith of the contracting parties of the persons who are capable of conducting a legal transaction pursuant to the law of the country where the transaction is conducted, but have no legal capacity under their national law. For that reason, this exception does not apply to legal transactions relating to family and guardianship laws and to inheritance law.

Special regulations also apply to the presumption of death and the confirmation of death. In accordance with Article 11 of the Act, in order for a missing person to be presumed dead or for a death to be confirmed, the national law of that person should be applied (unless a Polish court is adjudicating in a case relating to the declaration of death of a foreigner or the confirmation of death of a foreigner, in which case Polish law would apply).

III.4. Establishment of parent-child relationship, including adoption

Establishment of parent-child relationship – sources of the rules and applicable law

The issues relating to the parent-child relationship have been regulated in Article 19(2) of the Private International Law Act, according to which the establishment or denial of paternity or maternity is governed by the national law of the child applicable at the time of his or her birth; the establishment of parent-child relationship is governed by the law of the country of which the child is a citizen at the time of the establishment of such relationship, whereas the establishment of parent-child relationship in respect of an unborn child is governed by the mother’s national law.

TopTop

In the event of a dual or multiple citizenship of the child or the mother, the principle of exclusivity of Polish citizenship, formulated in Article 2(1) of the Act, will apply.

The majority of bilateral conventions adopt the same principle as to the applicability of the child’s national law as at the time of the child’s birth. Some countries, however, submit the issue of the child’s origin to the mother’s national law at the time of the child’s birth or the domicile of the parents and children, and if no such connecting factor exists, the national law of the child.

Adoption – sources of the rules and applicable law

In accordance with Article 22(1) of the Private International Law Act, adoption is governed by the national law of the adopting party, but is subject to compliance with the provisions of the child’s national law as regards the consent of the child, the consent of the child’s statutory representative, the permission of the competent state authority or the adoption restrictions relating to a change in the existing domicile to a domicile in another country.

Under bilateral agreements concluded by Poland, the following rules can be distinguished: a) adoption is governed by the law of the Party whose citizenship the child holds, b) adoption is governed by the laws of both Parties, if the spouses applying for adoption hold different citizenships, c) adoption is governed by the law of the State in the territory of which the adoptee and the adoptive parent are domiciled or, if they are domiciled in different countries, the law of the Party of which the adoptee is the citizen.

Poland is also a party to the European Convention on the adoption of children, done in Strasbourg on 24 April 1967 and the Hague Convention of 29 May 1993 on protection of children and cooperation in respect of intercountry adoption.

TopTop

III.5. Marriage, unmarried couples, partnerships, divorce, judicial separation, maintenance obligations

Marriage

Under Polish law, the issue of the law governing marriage is regulated in Articles 14 to 16 of the Private International Law Act.

The rule is that the grounds for contracting marriage and for the annulment of marriage are assessed according to the national law of each spouse separately (Article 14). This means that the capacity to contract marriage is evaluated separately for each of the spouses in accordance with their national laws.

The connecting factor of nationality is also used in the bilateral agreements between Poland and, among others, Hungary, Czech Republic, Slovakia, Romania, Austria or France.

If the spouse(s) hold(s) dual or even multiple citizenship(s), a Polish citizen would be subject to Polish law, notwithstanding the fact that the law of another country also recognises him/her as its citizen.

If a Polish citizen enters into marriage with a foreigner holding a citizenship of two or more countries, the foreigner will be subject to its national law, i.e. the law of the country with which he or she is most closely connected.

Divorce – applicable law

Article 18 of the Polish Private International Law Act provides that the law applicable to divorce is the common national law of the spouses applicable at the time of the petition for divorce. If the spouses do not have such common national law, the applicable law will be the law of the country in which both spouses are domiciled. If it turns out that the spouses are not domiciled in the same country either, Polish law will apply.

TopTop

Separation

Article 18 of the Polish Private International Law Act provides that the law applicable to separation is the common national law of the spouses applicable at the time of the petition for divorce. If the spouses do not have such common national law, the applicable law will be the law of the country in which both spouses are domiciled. If it turns out that the spouses are not domiciled in the same country either, Polish law will apply.

Maintenance payments

Under Polish law, there is no separate regulation relating to the law applicable in respect of maintenance obligations in the relationship between the spouses, therefore the norms regulating the matrimonial property regime are applied in an ancillary capacity. Therefore, the maintenance obligations between the parties during marriage are subject to the financial statute between the spouses.

If one of the spouses makes a maintenance claim during marriage, the common national law of the spouses then in force will apply. If the spouses have no common national law, the applicable law is the law of the country in which both spouses are domiciled, and if the spouses are not domiciled in the same country, Polish law will apply. Maintenance claims in relations between divorced spouses are subject to the law which applied to the divorce proceedings.

III.6. Matrimonial property regimes

Applicable law

The financial relations between the parties are governed by their common national law then in force (Article 17(1) of the Private International Law Act). If the spouses have no common national law, the applicable law is the law of the country in which both spouses are domiciled, and if the spouses are not domiciled in the same country, Polish law will apply.

TopTop

The spouses’ common national law in force at a given time also governs the admissibility of the execution of, amendment to or termination of a matrimonial property agreement. However, the financial relations arising under a matrimonial property agreement are governed by the common national law of the parties in force at the time of execution of the agreement. If the spouses have no common national law, the applicable law is the law of the country in which both spouses are domiciled, and if the spouses are not domiciled in the same country, Polish law will apply.

III.7. Wills and successions

Sources of the law

The issues relating to the law applicable to inheritance cases are regulated in Articles 34 and 35 of the Private International Law Act. However, the 1961 Hague Convention on the conflict of laws relating to the form of testamentary dispositions and the relevant conflict of laws provisions of the bilateral conventions on legal assistance, to which Poland is a signatory, take precedence over the provisions of the Act.

Applicable law

In accordance with Article 34 of the Act, inheritance cases are governed by the national law of the testator, in force at the time of his or her death. Article 35 of the Act provides for an exception to this rule in the case of the assessment of the validity of the will and other legal duties in the event of death, stipulating that, to this extent, it is sufficient to comply with the form provided by the law of the country in which the legal deed takes place.

Inheritance rules relating to farms located in Poland.

The inheritance rules relating to farms in Poland are subject to separate regulations, which differ to a significant extent from the general provisions of the inheritance law. It is assumed, both by the legal doctrine and in the legal literature, that the inheritance statute applies also to farms located in Poland, subject however to the amendments arising from the detailed Polish regulations relating to the rules applicable to the succession of farms.

TopTop

III.8. Property and rights in rem

Applicable law

Property and other rights in rem are governed by the law of the country in which the subject thereof is located (Article 24 of the Private International Law Act). The applicable law is the law in force at the place where the item (movable or real property) is located. However, the acquisition and loss of property, and the acquisition, loss, amendment or priority of any other rights in rem are governed by the law of the country in which the subject of such rights was located at the time at which the event having the abovementioned legal consequences occurred. Other regulations apply to aircraft, since the rights in rem on board aircraft are evaluated in accordance with the law of the country of registration of the aircraft.

Under maritime law, property rights on a ship are governed by the law of the state of registration of such ship.

Real property

In accordance with Article 25(2) of the Private International Law Act, obligations relating to real property (e.g. sale agreement, exchange, gift, annuity, various types of leases) are always governed by the law of the country in which the real property is situated. This means that the parties to such obligations are not entitled to make a choice of law.

III.9. Insolvency

Applicable law

The issues relating to the law applicable to insolvency are regulated under Polish law both in the Act of 28 February 2003 – Bankruptcy and Rehabilitation Law and in the Private International Law, provided however that the Private International Law Act does not contain any conflict of laws provisions which would regulate directly the issue of bankruptcy or the consequences of a declaration of bankruptcy.

The provisions of Article 460 to 470 of the Bankruptcy Law Act exclude the application of the Private International Law Act to any bankruptcy proceedings commenced in the territory of the Republic of Poland in relation only to the entities listed in the Bankruptcy Law, i.e. foreign banks and credit institutions and their branches. With regard to bankruptcy proceedings involving other entities, e.g. undertakings, which may include individuals, legal persons and unincorporated organisational units, the conflict of laws provisions set forth in the Private International Law Act will apply.

Article 460 of the Bankruptcy Law Act introduces a rule according to which Polish law applies to any bankruptcy proceedings commenced in the Republic of Poland. However, the Act also provides for a large number of exceptions to that rule, taking into account the nature of a given legal relationship, its closer links with another country or the location of an item (movable).

« Applicable law - General information | Poland - General information »

TopTop

Last update: 30-08-2007

 
  • Community law
  • International law

  • Belgium
  • Bulgaria
  • Czech Republic
  • Denmark
  • Germany
  • Estonia
  • Ireland
  • Greece
  • Spain
  • France
  • Italy
  • Cyprus
  • Latvia
  • Lithuania
  • Luxembourg
  • Hungary
  • Malta
  • Netherlands
  • Austria
  • Poland
  • Portugal
  • Romania
  • Slovenia
  • Slovakia
  • Finland
  • Sweden
  • United Kingdom