In ZG Legal’s updates we have written several times about advantages of conciliatory proceedings in IP matters (Link). It is often a very useful and effective tool in Poland to resolve IP disputes. However, in many other types of matters conciliatory proceedings are used only to interrupt the statuary limitation of claims, which is assumed an abuse of these court proceedings the main aim of which should be to settle the matter amicably before a court. In order to limit such abuses the Polish Supreme Court has recently issued several judgments setting rules on a proper application of relevant provisions related to conciliatory proceedings.
As mentioned above, the basic aim of the conciliatory proceedings is to reach a settlement before a court and an interruption of the period of statuary limitation of claims is only a result of instituting this type of a court action. Therefore, in each case, regardless whether it is the first summons to an amicable settlement or a subsequent one a court is obliged to examine if the premises specified in art. 123.1.1. of the Civil Code are met, i.e. whether the summons is an action undertaken directly to pursue, establish, satisfy or secure a claim. The court must also analyze whether the summons may potentially lead to a satisfaction of the claim and what its real purpose is (judgment of the Supreme Court of 4 April 2019, case no. III CSK 384/17). Such an assessment is conducted by the court conducting conciliatory proceedings (judgment of the Supreme Court of 27 July 2018, case no. V CSK 384/17).
The content of the summons to conciliatory proceedings must correspond with claims to be raised in a lawsuit (i.e. unequivocal identification of the claim and the defendant). Therefore, relevant documents evidencing the claims should be attached to the summons to the conciliatory proceedings, e.g. invoices, if the dispute regards payments. It should be emphasized that the requirement of a brief description of the matter does not eliminate the need to precisely specify the claims (judgment of the Supreme Court of 15 November 2019, case no. V CSK 348/18). Without fulfilling these conditions, a summons to conciliatory proceedings will not result in an interruption of the statuary limitation of claims.
There is no doubt that conciliatory proceedings, if their formal requirement are met, interrupt the period of statuary limitation of claims, regardless whether the settlement has been concluded or not (judgment of the Supreme Court of 15 November 2019, case no. V CSK 348/18).
The limitation period is not interrupted when the summons has been returned by the court, e.g. as a result of a failure to amend formal deficiencies, or rejected, e.g. due to the lack of national jurisdiction, or the conciliatory proceedings have been discontinued, e.g. due to a withdrawal of the summons (judgment of the Supreme Court of 27 July 2018, case no. V CSK 384/17, resolution of the Supreme Court of 28 March 2014, case no. III CZP 3/14).
In connection with the problems above, the Minister of Justice on 2 of October, 2020 proposed an amendment to art. 123 § 1 of the Civil Code. The proposed changes state that only the first summons to conciliatory proceeding will have an effect of interrupting the period of statuary limitation of claims (the draft of the new law is under the link: https://legislacja.rcl.gov.pl/projekt/12338855).
What does the above mean for IP rights owners? When taking a decision on whether to file for conciliatory proceedings, it is necessary to properly prepare the motion taking into account the latest jurisprudence of the Supreme Court, and – in the future – the amended provisions of the Civil Code, if the changes are introduced.