Law firm’s success in three grant cases
9 July 2025 • Autor: Kancelaria Brysiewicz Bokina i Wspólnicy
At the outset, the institution organizing the competition to select projects for funding determines what pool of funds under a given measure it wants to allocate to the competition. The so-called Implementation Law (Law on the Principles of Implementation of Cohesion Policy Programs Financed in the Financial Perspective 2014-2020), in turn, stipulates that applicants cannot appeal against a negative assessment in a situation where the only reason for it is the lack of funds in the competition.Success of the law firm in three grant cases
Exhaustion of funds in the competition – not the applicant’s problem
But what about those applicants who appealed earlier, received more points and a positive decision, but in the meantime ran out of funds in the competition? Such a situation was recently faced by several of our clients, who, despite successfully resolved protests, later received information that grant agreements will not be signed with them, because in the so-called meantime the funds in the competition ran out. Thus, despite the fact that the clients proved in the course of the appeal procedure that there were errors in the evaluation of projects, they were deprived of support. This is because the institutions consistently took the position that there had been an exhaustion of funds in the competition, so selecting projects for funding was not possible.
In all of these cases, the courts shared our reasoning, stating that the evaluation of the projects was carried out in violation of the law, and the cases were referred to the institutions for reconsideration. In one of them, the client has already received an invitation to sign a contract.
When the appeal procedure becomes pointless
The WSA in Gorzow Wielkopolski, which ruled on one of these cases (case number I SA/Go 127/20), noted that the authority could not deprive our client of the right to funding simply because he ran out of funds in the competition during the appeal procedure. As the Court aptly noted (justification available here), the appeal procedure only makes sense if it allows the applicant to obtain funding – otherwise it would be merely illusory and meaningless. Refusing to increase the pool of funds in the competition (while failing to justify its decision to refuse to increase the allocation) violates Article 37(1) of the Implementation Act, since the authority had the legal and financial capacity to increase the pool of funds in the competition.
The remaining cases were eventually referred to the NSA (case numbers I GSK 357/20 and I GSK 440/20), which, sharing the allegations raised in the cassation complaints, reversed the judgments of the WSA in Olsztyn, which were unfavorable to the Clients, and found that the evaluation of the projects was incorrect. In these cases, the institution recognized that under the appeal procedure it is not possible to reconsider a protest against criteria that have already been the subject of such a procedure.
The firm’s clients in these proceedings were supported by legal counsel Krzysztof Brysiewicz, legal counsel Dr. Magdalena Porzezynska, legal trainee Małgorzata Woźniak and lawyer Magdalena Michalik.
The resolved cases show that the appeal procedure guaranteed by the regulations may prove to be a sham in a situation where it is the institution that decides to exhaust the allocation for the competition. It is therefore gratifying to see that the Courts have recognized that, although the exhaustion of funds itself remains independent of the institution in the competition, this circumstance cannot top-down deny applicants funding. The authority is obliged to shape the competition procedures in such a way that the entity that has launched the appeal procedure has a chance to prove its case and obtain funding. Otherwise, the appeal procedure becomes pointless.
– Dr. Magdalena Porzezynska comments.
The provisions of the Implementation Act allow those applicants whose applications have been badly evaluated by the institutions and who have been forced to use the appeal procedure to be put at a disadvantage compared to those applicants who immediately received a positive evaluation. The legislator prioritizes the speed of disbursement of funds over the efficiency of their disbursement (selection of the best projects for funding). The courts have risen to the occasion without losing sight of the fact that the former principle must not infringe on an individual's right to an effective legal remedy.
– Krzysztof Brysiewicz notes.
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