The failure of an administrative authority to meet a deadline is a sad reality of everyday life for entrepreneurs and ordinary citizens in Poland. Inaction on the part of the authorities is more often met with helplessness and humble anticipation of the matter being resolved than with urgings or the use of the means available to the petitioner under administrative procedure. ‘It is better to wait for the case to be considered,’ thinks the applicant, ‘than to anger the authority with a complaint about the protracted proceedings.’ The situation is different for the administrative authority. Here, the matter is obvious because the official often has no choice and must punish the party responsible for the delay.

Nature and mechanism of administrative penalties

The simplest solution is when the sanction for being late is an administrative penalty. This type of repression is objective in nature. It is imposed by the authority only after establishing the fact of the violation of the law, regardless of fault, the harmfulness of the act committed, and other circumstances of the case. In many cases, therefore, a delay on the part of an entrepreneur means an inevitable and strictly defined penalty. The clash between the authority and the petitioner is thus not even an uneven fight, in which a lightweight boxer faces a heavyweight professional. Everything indicates that the administrative apparatus is a huge heavy ball rolling towards a helpless petitioner. Fortunately, from time to time, Indiana Jones escapes the ball and does not allow himself to be crushed.

Administrative penalties are particularly prevalent in laws concerning environmental and energy obligations. The Renewable Energy Sources Act alone lists nearly 30 cases in which the relevant authority (usually the President of the Energy Regulatory Office) should impose a penalty. The penalised party may appeal against such a decision to the Court of Competition and Consumer Protection (SOKiK) and, in the next instance, also to the Court of Appeal in Warsaw.

This was the path taken by a small entrepreneur who failed to submit the required quarterly report on the amount of energy produced to the Energy Regulatory Office. First, in April 2016, the President of the Energy Regulatory Office imposed a penalty of PLN 10,000, a fixed amount determined by statutory provisions. At this point, the case should have been completely closed. No legal provision allowed for any mitigation of this penalty, i.e. the search for mitigating circumstances.

Constitutional criticism of rigid administrative penalties

However, the appeal to the Court of Competition and Consumer Protection had a rather unexpected effect – the court passed a ruling overturning the penalty despite the brutally simple provision of the RES Act. The court took into account the specific situation of the penalised party, whose small wind turbine had only been generating electricity for a few months, which led to the conclusion that the lack of this data was of little significance to the authority. The penalised party also proved not only that the installation had had technical problems, but also that they previously properly fulfilled the reporting obligations incumbent on energy producers. In addition, the producer tried to convince the court with mitigating circumstances such as poor health.

As the President of the Energy Regulatory Office appealed against the judgment, the case continued, involving an authority which adjudicates but whose rulings are neither published nor respected, namely the Constitutional Tribunal. On 3 April 2025, the Tribunal considered a legal question referred by the Court of Appeal in Warsaw and found certain provisions on administrative penalties, i.e. Article 170(4)(2) in conjunction with Article 168(11) of the Act of 20 February 2015 on Renewable Energy Sources, to be unconstitutional.

Once again, it turns out (because the Tribunal has already ruled in similar cases) that provisions which specify the amount of a financial penalty in a rigid manner, without allowing the authorities to assess whether administrative sanctions are appropriate and proportionate to a specific case of infringement, are inappropriate. Therefore, even professional entities that violate regulations in licensed areas of activity should expect penalties to be determined on a case-by-case basis.

The aforementioned judgment of the Tribunal in case P 8/21 has not been published in the Journal of Laws. Thus, it has not entered into legal circulation. However, it is yet another significant argument for the questionable quality of many regulations disciplining entrepreneurs in a manner completely inadequate to democratic standards.