Detailed Explanation
Grounds for declaring a decision invalid
- the decision was issued in violation of the rules of jurisdiction;
- the decision was issued without a legal basis;
- the decision was issued in flagrant violation of the law;
- the decision concerns a matter already decided by a final decision or a matter that has been settled by tacit decision;
- the decision was addressed to a person who is not a party to the case;
- the decision was unenforceable on the date of its issuance and its unenforceability is of a permanent nature;
- if enforced, the decision would constitute an act punishable by law;
- the decision contains a defect rendering it null and void by operation of law.
These grounds are the same in the case of a declaration of invalidity of a ruling and in the case of applying the invalidity procedure to a case settled by tacit decision.
The period within which a decision may be declared invalid
Even if one of the grounds for declaring a decision invalid exists, a decision declaring it invalid cannot be issued if 10 years have elapsed since the date of its service or announcement, or if it has produced irreversible legal effects.
If 30 years have elapsed since the date of service or announcement of the decision, proceedings for annulment shall not be initiated at all.
Competent Authority
The competent authority to declare a decision invalid is the authority of a higher level than the authority that issued the decision.
However, if the decision was issued by a minister or a local government appeals board, the competent authority to declare that decision invalid is that very authority.
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Example:
The competent authority to declare a provincial governor’s decision refusing to grant a temporary residence permit invalid is the Head of the Office for Foreigners, who, in matters concerning the granting of such a permit, is the higher-level authority in relation to the provincial governor.
The authority competent to declare the decision of the commander of a Border Guard unit ordering a foreigner to return invalid is the Chief Commander of the Border Guard, who is the higher-level authority in this administrative matter with respect to the commander of the Border Guard unit.
At the same time, however, the authority competent to declare invalid the decision of the Head of the Office for Foreigners to uphold the provincial governor’s decision refusing to grant a temporary residence permit is the Head of the Office for Foreigners himself, as he is a minister within the meaning of Article 5 § 2(4) of the Code of Administrative Procedure.
Similarly, the authority competent to declare invalid the decision of the Commander-in-Chief of the Border Guard to uphold the decision of the commander of a Border Guard unit requiring a foreigner to return is the Commander-in-Chief of the Border Guard himself, who—like the Head of the Office for Foreigners — is a minister within the meaning of Article 5 § 2(4) of the Code of Administrative Procedure.
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Proceedings for a declaration of invalidity
Proceedings for a declaration of invalidity are initiated at the request of a party or ex officio.
The sole purpose of these proceedings is to determine whether the decision is vitiated by one of the defects that constitute grounds for annulment. In these proceedings, if the decision is annulled, the merits of the case decided by the defective decision are not re-examined.
In proceedings for the annulment of a decision, the following is issued:
- a decision declaring that decision invalid, or
- a decision refusing to declare it invalid, or
- a decision declaring that the decision was issued in violation of the law—if 10 years have elapsed since the date of service or announcement of the decision, as well as if the decision has produced irreversible legal effects.
In the latter case, despite the fact that the decision is marred by a specific serious defect, it remains in legal force.
Decisions issued in proceedings to declare a decision invalid are issued as non-final decisions. They may be appealed (if there is a higher-level authority in relation to the authority issuing the decision declaring the decision invalid) or a motion may be filed for reconsideration of the case by the same authority.
In cases where proceedings to declare a decision invalid are pending, the above rulings take the form of an order.
Until a decision afflicted with one of the defects that meet the grounds for invalidation is declared invalid, that decision remains in legal force. However, the issuance of a decision declaring a decision invalid has retroactive effect, i.e., from the moment the invalidated decision was issued. This results in the reopening of the administrative proceedings in which the decision, the invalidity of which has been declared, was issued.
During proceedings to declare a decision invalid, it is possible to suspend its enforcement. The prerequisite for issuing a ruling in such a case is that there is a likelihood that the decision is affected by one of the defects meeting the grounds for declaring the decision invalid. A ruling in this matter is subject to appeal.
