A Controversy Related to the NCBiR Proceedings

PUBLISHED AT: Wednesday, 08 April 2015, 13:57
Filip Seredyński

Spending billions of zlotys on defence and national security projects by the NCBiR should be a very serious matter. However, legal doubts related to the procedure of spending these funds are far from serious. Moreover, the act on NCBiR contains proceeding regulations which do not meet the basic legal standards.

The technology transfer carried out as a part of the offset project to the Polish defence industry can supplement the national scientific and technological potential. However, it cannot replace the state's policy of developing of the national armaments industry based on Polish research and innovation. The state's key instrument within this area were supposed to be the programs conducted by the National Centre of Research and Development (the NCBiR). The NCBiR currently finances several hundred defence and national security projects worth altogether over 2 bn PLN. Activities conducted on such a scale, especially by a sector of public finances, should be performed according to clear procedures that guarantee full transparency. However, there are a number of doubts concerning the procedures required by the NCBiR.

In principle, all state agencies act according to the Administrative Procedure Code (the APC). Exceptions from applying the APC should result from the provisions of this code or from an act regulating the activities of state authorities. In the case of the NCBiR, the rule of applying the APC has not clearly been included in the provisions. Consequently, there has been doubts whether the NCBiR applies the APC. It should be emphasized that the APC guaranties compliance with such procedural standards as the right to appeal, impartiality of the persons involved in issuing decisions, participation of the parties in the proceedings, or the principle of judicial control over administrative decisions. However, while organising competitions, the NCBiR maintained that the proceedings concerning the selection of the financed projects were not subject to the provisions of the APC.

Applying the APC would prevent the NCBiR from keeping the identity of all its experts secret (the experts' opinions decide about the division of funds) and from limiting the access to the experts' opinions. Present constraints on the insight into the experts' identity and opinions render the discussion with the NCBiR practically impossible. Currently, the principle of the experts' anonymity and the secrecy of their expertise related to competitive projects results from pt. IV.17 of the competition regulations. The importance of the access to the expertise is demonstrated among others in the remark of the Voivodship Administrative Court in Warsaw (WSA), included in the following justification of the statement from March 7, 2013, file no. V SA/Wa 868 / 12, "In the evaluation of the Judgement, the expertise presented in the case does not meet the standard which is expected from 'the distinguished representatives of the scientific, economic and financial circles' appointed for this function according to Article 38 of the act from April 30, 2010, about the National Centre of the Research and Development."

The Voivodship Administrative Court in Warsaw has often highlighted, that the NCBiR does not apply the APC. (e.g., in the sentences from October 28, 2013, July, 3, 2014, September, 17, 2014,, December, 8, 2014 /not in force/, January,15, 2015.  The other thesis was formed by WSA exclusively in the judgement from March, 7, 2013.On the margin it must be noticed that NCBiR lost all the above-mentioned cases because in all the cases  the NCBiR decisions were revoked. However the Supreme Administrative Court (NSA) took a completely different position in the judgement from October 27, 2014 in which NSA recognized that the NCBiR should apply the APC. It has not changed the judicial decisions of the lower court – WSA.. Probably, such a change will take place when NSA sees to the next case. The NSA, in the judgement from October 27, 2014, argued that the expression "issue the decision," used in the provisions of the NCBiR act, means issuing an administrative decision within the meaning of the ACP, which must be preceded with administrative proceedings in accordance with the ACP. Claims of the entities that lost the current competitions can be a consequence of the Supreme Administrative Court judgement.

At the same time, January 17, 2014, there was submitted to the Speaker of the Parliament a draft of the governmental amendment to the NCBiR act (parliamentary form no. 2086) according to which possible appeals against the decisions of the Director of the NCBiR - on granting funds - can concern exclusively a "breach of the competition procedure or of other formal infringements." Moreover, in the first reading in the Parliament Education, Science and Youth Committee such crucial expressions as "is giving decisions" and "decision" - included in the Article 40 sec. 3 and 4 - were respectively replaced with "is resolving" and "resolution." The Act was accepted on January 15, 2015, and will come into force on May 25, 2015.

The consequence of the amendments to the NCBiR act are a limitation of the basis for the appeal against the NCBiR's decisions exclusively to formal issues and a loss of validity of the Supreme Administrative Court's judgement passed in other legal status. There has still not been definitely resolved the question whether the APC is applicable in the proceedings before the NCBiR.

While changing the NCBiR act, the Members of Parliament did not change the other controversial provision concerning national security and defence projects. In these cases the procedure is that the competition is announced by the Steering Committee which also establishes the rules of the competition and appoints experts. Once the experts form their opinions, the Steering Committee drafts a ranking list of the assessed projects as well as makes the final substantive assessment of the projects. Basing on the ranking list mentioned above, the Director of the NCBiR issues a decision about granting funds. The appeal against the decision of the NCBiR Director may be lodged to …. of the Steering Committee.

Apparently, we are dealing here with a situation in which the Steering Committee, playing a key role in the preparation of the NCBiR's decision, reviews appeals against the decisions of the Director. Such a solution does not meet the standards stipulated e.g. in the ACP which explicitly excludes the clerks who have participated in issuing the contested decision.

The above remarks demonstrate the importance of clear and transparent procedural principles as far as spending public funds is concerned. Lacks in this area have a negative influence on the effectiveness of the undertaken actions as well ad on the trust to public authorities.

Filip Seredyński
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