Refusal of funding from the Guaranteed Employee Benefits Fund (FGŚP)? Find out how to appeal the decision. Supreme Administrative Court ruling.

The refusal to conclude an agreement for granting a benefit for the protection of jobs from the Guaranteed Employee Benefits Fund to subsidise the wages of employees affected by economic downtime or reduced working hours due to COVID-19, issued pursuant to Article 9(2) of the Act of 11 October 2013 in connection with Article 15g(1) and (17) of the Act on special solutions related to prevention, counteraction and combating COVID-19, other infectious diseases and crisis situations caused thereby (Journal of Laws, item 374, as amended; hereinafter: the COVID-19 Act), may be challenged before the administrative court – reads the ruling of the Supreme Administrative Court (NSA) of 24 September 2021 (case ref. I GSK 1074/21).

Facts of the case

A company applied for wage subsidies for employees subject to economic downtime or reduced working hours under Article 15g of the COVID-19 Act. By a letter dated (…) August 2020, the Director of the Voivodeship Labour Office in Warsaw informed the claimant that its application for subsidy of wages of employees affected by economic downtime or reduced working hours under Article 15g of the Act of 2 March 2020 on special solutions relating to prevention, counteraction and combating COVID-19, other infectious diseases and crisis situations caused thereby (Journal of Laws, item 374, as amended; hereinafter: the COVID-19 Act) had been rejected. The justification stated that the claimant – as an educational institution – could not be recognised as an entrepreneur within the meaning of Article 1 or 2 of the Act of 6 March 2018 – Entrepreneur’s Law (Journal of Laws of 2019, item 1292, as amended), and therefore could not apply for the benefit under Article 15g(1) of the COVID-19 Act. The company challenged this refusal before the Voivodeship Administrative Court (WSA) in Warsaw.

Position of the WSA in Warsaw

The WSA held that the letter from the Director of the Labour Office did not fall within any of the categories of cases under Article 3 § 2 of the Act of 30 August 2002 – Law on Proceedings before Administrative Courts (Journal of Laws 2019, item 2325, as amended; hereinafter: p.p.s.a.), which fall within the jurisdiction of administrative courts. Certainly, it was not an administrative decision, ruling, written tax interpretation, nor a local law act or a supervisory act over the activity of a local government unit. The court only considered whether the challenged letter could be treated as “another act or action within public administration,” as mentioned in the p.p.s.a.

The first-instance court pointed out that the Act does not specify detailed procedures for applying for wage subsidies for employees subject to economic downtime or reduced working hours. No direct reference to the comprehensive regulation of the Code of Administrative Procedure (Journal of Laws 2020, item 256, as amended; hereinafter: k.p.a.) was found.

The WSA noted that jurisprudence has developed the concept of so-called hybrid proceedings or legal situations, where the first stage is administrative in nature and the actions taken at this stage are subject to appeal in administrative courts, with a positive outcome leading to the conclusion of a civil law contract. However, it stressed that the law governing a particular institution should provide grounds for inferring such a two-stage process of granting subsidies, e.g., foreseeing that the first stage ends with a positive or negative qualification (e.g., inclusion on a list of subsidised entities or refusal to qualify), while the second stage consists of entering into a civil law contract.

According to the WSA, wage subsidies are granted entirely through concluding a civil law contract. The entrepreneur submits a signed contract with the application electronically to the competent voivodeship labour office, and payments are made based on the contract concluded between the director of the labour office and the entrepreneur. Administrative courts are not competent to adjudicate on the correctness of civil law contracts.

The company filed a cassation complaint against the WSA’s ruling.

Ruling of the Supreme Administrative Court

The NSA overturned the WSA ruling. The Court reasoned that the funds come from the Guaranteed Employee Benefits Fund; thus, this is not a typical civil law relationship, but an administrative law construction connected with the adoption of an administrative act. If the director decides (issues a ruling) to allocate funds to a beneficiary, he requests the fund manager to grant an expenditure limit for paying benefits financed under the Act, and upon receiving the limit, concludes an agreement with the beneficiary. This refusal to conclude an agreement in writing constitutes an act of administrative authority. The decision that an entity does not meet the conditions for concluding a contract entitling it to support is an act referred to in the p.p.s.a. The director’s written refusal to conclude a benefit payment agreement under Article 9(2) of the Act of 11 October 2013 in connection with Article 15g(1) and (17) of the COVID-19 Act is therefore an administrative decision affecting the legal situation of the applicant and is subject to challenge in administrative court.

Essentially, contrary to the WSA’s position, the Court confirmed the two-stage nature of the subsidy procedure: the first stage is administrative, the second stage is civil law.

The NSA held that since the director may grant a subsidy by contract, the authority assesses the conditions for granting the subsidy and creates the legal relationship rather than merely implementing a legal obligation, which would be a material-technical act. This is a different type of act, not a material-technical action.

In short, contrary to the WSA, the process has two stages: an administrative stage followed by a civil law stage.

What does this mean for entrepreneurs applying for subsidies?

In case of refusal to conclude an agreement with the labour office for the granting of a benefit from the Guaranteed Employee Benefits Fund, as in this case, the applicant may challenge the director’s decision before an administrative court. Such a decision is an administrative act subject to judicial review.