Probative Force and Value of Foreign Official Documents in Polish Administrative Proceedings Concerning the Application for a Driving License

https://doi.org/10.63189/EZCK5864

Commentary on the Supreme Administrative Court Judgment of May 18, 2020, Ref. No. I OSK 1602/19

Poland’s membership in the European Union, coupled with dynamic population movements, the cross-border exchange of goods, and the attendant cooperation between Polish administrative bodies and their foreign counterparts, has resulted in the increasing use of foreign official documents as evidence in Polish administrative proceedings. Such documents provide the basis for factual determinations in ongoing matters and are subject to complex evaluative processes, both in the application of substantive administrative law by the competent body and, subsequently, in the judicial review of administrative acts by the administrative courts.

Pursuant to Article 75 § 1 of the Code of Administrative Procedure, any material that may contribute to the clarification of a case and is not contrary to law is admissible as evidence before a Polish administrative authority. Accordingly, foreign official documents are admissible in Polish administrative proceedings. However, they are not expressly regulated in the provisions of the Code of Administrative Procedure, as no meaningful international exchange existed at the time of its enactment. Nor do the provisions of the Code specify the probative force and evidentiary value of foreign official documents, as they do in respect of Polish official documents. Under Article 76 § 1 of the Code of Administrative Procedure, a Polish official document benefits from a rebuttable presumption of the truthfulness of the statements it contains and a presumption of authenticity as to its issuance by the body whose signature it bears.

In Polish administrative proceedings, the notions of probative force and credibility of evidence are legal categories. Every authority is obliged to provide reasons for its administrative decision issued in an individual case. Pursuant to Article 107 § 3 of the Code of Administrative Procedure, the factual justification of the decision must, in particular, indicate the facts deemed proven, the evidence relied upon, and the reasons for which other evidence was treated as not credible or without probative force. The legal justification, in turn, must explain the legal basis of the decision with reference to the applicable provisions.

Against this normative background, probative force and credibility, as legal categories, are assessed in concreto, within the context of the individual administrative case. By contrast, the capacity of a given source of information about a fact to serve as evidence in Polish administrative proceedings in abstracto is governed by the concept of admissibility of evidence, codified in Article 75 § 1 of the Code of Administrative Procedure. Accordingly, the concept of admissibility of evidence is equivalent to the civil law category of probative force.^[1] Within administrative proceedings, the probative force of evidence should be understood as its capacity – considered in light of applicable legal provisions and the axiological framework of the legal system – to function as a source of information in a given case. The probative force of a source is intrinsically linked to its credibility, understood as its capacity to establish the truth regarding a legally relevant fact.

The legislator has accorded Polish official documents enhanced probative force, assigning them ex lege a presumption of the truthfulness of the statements they contain and a presumption of authenticity as to their issuance by the body that signed them. These presumptions are rebuttable,^[2] meaning that Polish official documents remain subject to the principle of free evaluation of evidence under Article 80 of the Code of Administrative Procedure. Nevertheless, unless this evaluation leads to a refutation of their specific probative force and value, the body is bound to accept the truthfulness of the document. In consequence, absent counterevidence, the probative force and credibility of a Polish official document must be acknowledged.

The central legal issue addressed in this blog concerns the determination of the legal basis for assessing the probative force and value of a foreign official document in Polish administrative proceedings. It must be emphasized that while a foreign official document is admissible as evidence in such proceedings, its probative force and value are assessed within the context of the specific case.

The question of the probative value and value of a foreign official document was among the principal legal issues adjudicated by the Supreme Administrative Court in its judgment of May 18, 2020, ref. no. I OSK 1602/19.^[3] The facts of the case were as follows.

A German citizen applied to a Polish administrative body for the issuance of a category B driving license. The authority of first instance refused the application on the ground that a negative condition for issuance, set forth in Article 12(1)(5) of the Act of 5 January 2011 on Drivers (Journal of Laws of 2017, item 978, as amended), had been met. According to information provided by the Federal Motor Transport Authority of Germany (Kraftfahr-Bundesamt in Flensburg), the applicant had previously been issued a German driving license, which was revoked due to abuse of psychoactive substances. To obtain a German driving license again, the individual would be required to undergo a medical examination and psychological testing. The revocation decision was issued for an indefinite period, to remain in effect until the statutory conditions for reissuance were satisfied. Information regarding the revocation would remain in the German register until 1 September 2029.

The applicant appealed, but the authority of second instance upheld the decision of the first instance, maintaining the same reasoning in its justification. The German citizen then filed a complaint with the Provincial Administrative Court in Szczecin.

The Provincial Administrative Court dismissed the complaint. In its view, there was no doubt that the written information provided by the German body constituted a document confirming the actual state of affairs, based on the official records of that body. This evidence, analogous to an official document within the meaning of Article 76 of the Code of Administrative Procedure, having been drawn up by a competent body, benefited from the presumption of truthfulness with respect to the facts it attested.

The German citizen filed a cassation appeal against this judgment, challenging it in its entirety and alleging multiple violations of law. These included, in particular, an alleged violation of Article 76 of the Code of Administrative Procedure by treating the information provided by the Kraftfahrt-Bundesamt as an official document within the meaning of that provision, as well as a violation of Article 145 § 1(1)(c) of the Code of Administrative Procedure in conjunction with Articles 7, 77, and 80 of the Code of Administrative Procedure. The latter violation was said to consist in an arbitrary and erroneous assessment of the evidence collected in the case, and in particular of the documents obtained from the Federal Motor Transport Authority of Germany, which allegedly led to incorrect factual findings.

The Supreme Administrative Court dismissed the cassation appeal. In its written justification, the Court emphasized that, under Article 260c § 1 of the Code of Administrative Procedure, Polish public administration bodies are required to request assistance from the authorities of other EU Member States and from EU institutions where such an obligation is provided for in EU law and under the conditions laid down therein. In the present case, the legal basis for the Polish authority’s request to its German counterpart was Article 15(1) of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licenses (OJ EU L 2006.403.18, as amended).

The Supreme Administrative Court held that the information transmitted to the Polish body by the Federal Motor Transport Authority of Germany constituted official information originating from a competent German authority. Consequently, in the absence of any credible counterevidence submitted by the party, the Polish body was obliged to accept the facts set forth in the letter from the Federal Motor Transport Authority as true.

The presumptions of truthfulness and conformity with the factual state of affairs, as set forth in Article 76 § 1 of the Code of Administrative Procedure, attach only to Polish official documents. This follows from the regulatory framework contained in Article 5 § 2(3)–(6) of the Code of Administrative Procedure. By contrast, a letter transmitted by a German authority must be treated as an official communication from an EU Member State authority. The above provisions govern the institutionalized forms of cooperation between the administrative bodies of EU Member States. Each Member State, within the scope of its official activities and on the basis of its national legal framework, issues official documents. It was therefore incumbent upon the Polish body to accept that the information transmitted by the German authority constituted an official document issued by that authority.

Accordingly, when a Polish body, acting under the Code of Administrative Procedure and the relevant provisions of EU law, requests assistance from the competent authority of another Member State, it draws up an official document which is then transmitted. In response, the authority of the other Member State issues a corresponding official document. However, such a document does not have the probative force of a Polish official document, because it is not one, and the provisions of the Code of Administrative Procedure (or other applicable legislation) do not confer upon it the special probative force envisaged in Article 76 § 1 of the Code. Instead, pursuant to Article 75 § 1 of the Code of Administrative Procedure, it must be admitted as evidence in the form of a foreign official document. On the basis of Directive 2006/126/EC, such a document is to be recognized as a foreign official document possessing the attribute of authenticity, while its credibility is to be assessed under Article 80 of the Code of Administrative Procedure. Thus, the application of Article 76 § 1 of the Code of Administrative Procedure to a foreign official document constituted a misapplication of law, though one that did not materially affect the outcome of the case.

The written justification of the Supreme Administrative Court’s judgment makes it clear that the Polish administrative court considered the foreign official document admissible and applied to it the principle of equal probative force. On the basis of Directive 2006/126/EC, the Court attributed to it a presumption of authenticity, thereby accepting both that it was a foreign official document and that it originated from the authority that had issued it. The problem of verifying the origin of such a document arises in circumstances where a foreign official document is submitted by a party without legalization. In such instances, verification is necessary, and a negative outcome deprives the document of its probative force.

Its content was, in turn, subject to an assessment of credibility carried out under the principle of free evaluation of evidence under Article 80 of the Code of Administrative Procedure. At the same time, the Court refused to apply Article 76 § 1 of the Code of Administrative Procedure by way of argumentum per analogiam with respect to the presumption of the document’s truthfulness, holding that this presumption attaches solely to Polish official documents.

Accordingly, the Supreme Administrative Court held that foreign official documents are to be treated as documents lacking the special probative force provided in Article 76 § 1 of the Code of Administrative Procedure, stemming from the presumption of their conformity with the truth, and therefore should be regarded as equivalent to private documents. A presumption of truthfulness may be linked to a foreign official document only where a specific provision of an international agreement or of EU law (with respect to documents originating from the authorities of Member States or EU bodies) expressly grants such documents enhanced evidentiary value.

This reasoning is persuasive, as it accords with the rules of statutory interpretation and with the constitutional principle of the sovereignty of the Republic of Poland. Polish administrative bodies and courts are bound to apply linguistic interpretation in conjunction with systemic interpretation that reflects the principle of sovereignty, and to give effect to the will of the Polish legislator as expressed in the Code of Administrative Procedure or in other relevant enactments. Under Article 76 § 1 of the Code of Administrative Procedure, the legislator expressly limited the presumption of credibility – that is, the presumption of the truthfulness of a document’s content – to Polish official documents. In the absence of a corresponding legal provision applicable to foreign official documents, their relevance to a particular administrative case (that is, their probative force in the given proceedings) must be assessed under the general evidentiary rules of Article 80 of the Code. The credibility of foreign official documents is therefore aligned with that of private documents.

As regards authenticity, if a foreign official document is duly legalized, the administrative authority is obliged to accept its authenticity. Where international law – whether bilateral agreements or EU regulations – provides an exemption from legalization, foreign documents likewise enjoy a presumption of authenticity.

^[1] On the probative force and the significance of this conceptual category in civil procedure and civil law, see Czubik (2022: 13 ff.).

^[2] Wiktorowska, 2017, p. 109.

^[3] Supreme Administrative Court, Judgment of May 18, 2020, case no. I OSK 1602/19. Judgment available at: https://orzeczenia.nsa.gov.pl/doc/360C40590F (accessed October 4, 2025).

References

Czubik, P. (2022) Stosowanie pełnomocnictw z państw obcych w praktyce notarialnej. Kraków: Wolters Kluwer.

Wiktorowska, A. (2017) “Dowód z dokumentów,” in Wierzbowski, M. (ed.) Postępowanie administracyjne – ogólne, podatkowe, egzekucyjne i przed sądami administracyjnymi. 18th edn. Warsaw: C.H. Beck.