Glosa do Wyroku Sądu Najwyższego z dnia 15 października 2021 r., sygn. akt I CSKP 226/21

Abstract

The Supreme Court ruled on 15 October 2021, ref. no. I CSKP 226/21, that the provisions of the Civil Code set out in Article 509 and subsequent articles are not applicable to assignment agreements (cession agreement) concerning EU funds. According to Article 509 of the Civil Code, a creditor may, without the debtor’s consent, assign a claim to a third party, unless this would be contrary to the law, a contractual condition, or the nature of the obligation. In commented judgement, the Supreme Court stated that an assignment agreement concluded between a beneficiary of EU funds (assignor, debt seller) and a third party (assignee, debt buyer) has legal effects with respect to the debtor, which is a public administration body granting subsidies from EU funds, only if it has been approved by this body. In the absence of approval, the public administration body is not obliged to perform such an agreement and the claim for a subsidy from EU funds, which debt seller transferred to debt buyer by means of an assignment agreement, may pay to the benefit of the debt seller. This unprecedented thesis, excluding the application of the Civil Code to assignment agreements relating to EU funds, leads to the question of its scope of application. Does the requirement set forth by the Supreme Court to approve assignment agreements by the public administration body apply only to the case at hand, or does it have universal character and should be applied to all assignment agreements concerning EU fund? A question arises as to the legal remedies available to the parties to such agreements to protect their rights under unapproved assignment agreements, who, on the date of their conclusion, could not have known about the requirement for their approval and thus fulfil the formalities required for this purpose. That issue will be addressed in this article.