No possibility of debt recovery from the bankrupt entity’s assets where the creditors could not have known of a motion for bankruptcy received by the court SK 51/20
On 8 October 2025, the Constitutional Tribunal delivered its ruling issued with regard to the constitutional complaint concerning the lack of the possibility of debt recovery from the bankrupt entity’s assets where the creditors could not have known that a motion for bankruptcy was received by the competent court.
The Constitutional Tribunal adjudicated that Article 242 of the Bankruptcy Act of 28 February 2003, in the version that was binding prior to 1 January 2016 – insofar as the challenged regulation provides for no obligation to call on a creditor represented by a professional legal counsel[1] to correct formal defects in the creditor’s debt claim before the claim is rejected – is consistent with Article 77(2) and Article 45(1) in conjunction with Article 32(1) of the Constitution of the Republic of Poland.
The Constitutional Tribunal discontinued the review proceedings as to the remainder.
The ruling was adopted by a majority vote.
There was one dissenting opinion, filed by Judge Andrzej Zielonacki.
The constitutional issue required determining whether the discontinuation of court proceedings due to the defects of a procedural submission drafted by a professional legal counsel infringes the party’s right to have its case considered, by a court, in accordance with a fair court procedure – given that if the party (and not its professional legal counsel) had drafted the same submission, then the party would have been called on to correct formal defects before the submission got rejected.
The Tribunal deemed that the rejection of a procedural submission that may not be properly admitted on formal grounds does not, in itself, constitute a restriction of the constitutional right to a fair trial, and in particular the right to a fair court procedure. Being generally obliged to exercise professional due diligence, a professional legal counsel may, in certain instances, be subject to the rule providing for the rejection of his/her procedural submission without calling on the legal counsel to correct any formal defects.
When verifying the allegation about the violation of the principle of equality, the Constitutional Tribunal stated that persons represented by a professional legal counsel are in a different situation than those who lack professional legal representation, and hence those two groups of persons do not share the so-called essential (relevant) characteristic. The differentiation between parties in terms of the manner of their representation in court proceedings is aimed at eliminating actual procedural disproportions, but it also entails certain implications.
The Constitutional Tribunal noted that a party to court proceedings may, in practice, be at a risk of being disadvantaged by its professional legal counsel’s faulty actions and, as a result, the party suffers the consequences of such faulty actions. Nevertheless, that issue may not impact the constitutional review of procedural regulations providing for more stringent rules for professional legal counsel.
The adjudicating panel in the present case comprised the following judges of the Constitutional Tribunal: Judge Andrzej Zielonacki as the Presiding Judge; President of the Constitutional Tribunal Bartłomiej Sochański as the Judge Rapporteur; Judge Jakub Stelina; Judge Rafał Wojciechowski; and Judge Jarosław Wyrembak.
[1] Under Polish law, both advocates (Pl. adwokat) and legal advisers (Pl. radca prawny) make up the category of attorneys (attorneys-at-law), admitted to the Bar, and fully qualified to provide professional legal representation; the main difference between the first and the latter is the range of contracts on the basis of which they are permitted by law to provide their legal services.