Polish, German And French Examples Of The Application Of Actio Pauliana To Tax Obligations. Reflections On The Sense Of The Division Into Public And Private Law

Author:Rafal Szczepaniak, Marcin Krzymuski

The inspiration to write the article was the judgment of the Polish Constitutional Tribunal of 2018 confirming the possibility of applying Actio Pauliana to tax obligations. This issue is focused on typical problems for the application of private law in the public sector. It is, among other things, the sense of division into public and private law. Actio Pauliana is included in private law, while ... (see full summary)

Professor Rafał SZCZEPANIAK2
Dr. iur. Marcin KRZYMUSKI3
The inspiration to write the article was the jud gment of the Polish Constitutional Tribu nal of 2018 confirming
the possibility of applying Actio Pa uliana to tax obligations. This issue is focused on typical problems for the
application of private law in the public secto r. It is, among other things, the sense of division into public and p rivate
law. Actio Pauliana is included in private law, while tax law is included in public law. The author agrees with the
ruling of the Polish Constitutional Court. He is an opponent of overestimating the importance of division into public
and private law. The article uses the formal -dogmatic method as well as the comparative law method. The author also
discusses the legal status in France and Germany in this respect.
Keywords: Actio Pauliana, tax obligations, public law, private law.
JEL Classification: K15, K23, K34
1. Introduction
The admissibility of the use of Actio Pauliana, which is known throughout the European
legal system, as the heritage of the Roman law, with regard to tax obligations has been controversial
for many years in some EU countries. German and Polish experiences are an example of the above.
The issue focalizes the most important controversies concerning the application of private law in the
public sector. The inspiration for writing this text originates from a recent judgment of the Polish
Constitutional Tribunal (CT) on this subject. It is worth noting here that although in Europe this
institution is universally attributed to civil law, it is perceived as one of the basic principles of the
entire EU law.4
2. Polish legal status - general remarks
2.1. Evolution of views
The institution of Actio Pauliana has been regulated in the Civil Code in art. 527-534. In
these provisions there is no reference to applying Actio Pauliana to tax and other public-law
obligations. Therefore, substantial doubts arose. Both the Supreme Court (SC) and civil courts
initially ruled out the possibility of applying this legal arrangement to tax obligations. At the
beginning of the 21st century, the Supreme Court finally revised its previous view on this subject.
Yet doubts, have remained in the doctrine. At present, we can already speak about the consolidated
position of the Supreme Court and common courts5, in the light of which it is perfectly possible to
use this arrangement to tax obligations. In the judgment of the Constitutional Tribunal of 6 March
1 This text was created as a result of the research project no. 2016/23/B/HS5/03774 financed by the National Science
Center, Poland.
2 Rafał Szczepaniak - Faculty of Law and Administration, Adam Mickiewicz Universit y, Poznań, Poland,
3 Marcin Krzymuski - European University Viadrina in Frankfurt (Oder), Germany, Krzymuski@europa-uni.de.
4 See the jud gment of the EU Court of Justice of 10 January 1990 C 1 15/88, ECR 1990, pp. I-00027. See M. Pyziak-Szafnicka, [in]
System Prawa Prywatnego (Private Law System) Tom 6. Prawo zobowiązań – część ogólna, (Law o f obligations - general part,),
Volume 6, ed. A. Olejniczak, Warszawa 2009, s. 1223.
5 The evolution of case law in the discussed field is presented in the justification of the judgment of the Supreme Court o f 28 October
2010. Orzecznictwo Sądu Najwyższego 2011 No. 1, item 23; Biuletyn Sądu Najwyższego 2010 No. 12, item 17.
Perspectives of Law and Public Administration Volume 8, Issue 1, May 2019 6
20026 it says: "Recognizing the independence of the Tax Ordinance, it is impossible to negate the
fact that civil law fulfills the role of the so-called universal law, which justifies the reference to its
basic concepts." As argued by the Supreme Administrative Court (SAC) in the decision of October
15, 20097 referring to the above judgment of the Constitutional Tribunal, "the asymmetry of civil
law and tax law solutions cannot be each time explained by the autonomy of tax law. The coherence
of the legal system and autonomy of tax law is not to be considered as a 'principle vs exception to
principle' relationship. A coherent legal system must be based on universal values, which are
common to all branches of law." SC in its judgment of 28 October 20108 regarding the application
of Actio Pauliana to the protection of tax obligations, emphasized the importance of some civil law
institutions for the entire legal system. In its opinion, the significance of "certain instruments
regulated in the Civil Code goes beyond civil law relations". In turn, the Supreme Court in its
judgment of 1 June 20119 treated the creditor's defense mechanism against the debtor's actions
consisting in fraudulent conveyance of his property, called in the civil law "Actio Pauliana" as one
of the "basic principles of the legal order common to the entire legal system”.
However, a fairly clear opposition between the courts and the doctrine has emerged. In the
doctrine, the dominant view in recent decades has been that the application of Actio Pauliana to tax
obligations is de lege not permissible.10
An expression of these doubts was the Ombudsman's challenge of the indicated provisions
of the Polish Civil Code directed to the Constitutional Tribunal, to the extent, however, in which the
provisions were to be applied to tax obligations. The Polish Ombudsman recognized that the
application of these provisions to tax obligations is contrary to the Constitution (especially to art. 2
and art. 84 of the Constitution of the Republic of Poland).
In the motion submitted to the Constitutional Tribunal, Ombudsman presented a synthesis of
all the arguments raised so far against the application of Actio Pauliana to tax obligations.
The Ombudsman argues that:
1) Actio Pauliana is a civil law institution; consequently, it can be applied to civil law
relations only; whereas tax law is characterized by a certain autonomy, which is why civil law
institutions are usually not appropriate to the character of relations between public authority and a
2) the indicated provisions of the Civil Code could be applied to tax liabilities only by way
of analogy; meanwhile, analogy in tax law is not acceptable if applied to the detriment of private
3) the liability of third parties for tax obligations has been regulated separately and
exhaustively in Chapter 15 of the Tax Ordinance (Articles 107 and n.)11; consequently, there is no
place for applying Actio Pauliana with regard to tax obligations;
6 Judgment of the Constitutional Tribunal of 6.03.2002, P. 7/2000, Z.U. 2002/2A/13.
7 I FSK 240/2008, LEX no. 1028098, www.nsa.gov.pl; the cited position was confirmed in principle in the Resolution of the Full
Panel of the Chamber of Co mmerce of the Supreme Administrative Court of June 22, 2011. I GPS 1/2011, ONSAiWSA 2011 No. 5
item 93.
8 II CSK 227/10, OSNC-ZD 2011/1/23, Biul. SN 2010/12/17; likewise, the Constitutional Tribunal in the judgment of 5.10. 2005, SK
39/05, OTK A 2005, No. 9, item 194.
9 II CSK 513/10, LEX no. 960505.
10 See B. Brzeziński, M. Kalinowski, Dopuszczalność stosowania skargi pauliańskiej do należności podatkowych (Admissibility of
using Actio Pauliana to tax receivables), [in] Przegląd Orzecznictwa Podatkowego (Overview of Tax Jurisdiction) 2015 No. 2, p. 105
and n .; P. Chmielnicka, Skarga pauliańska jako forma ochrony należności podatkowych, [w] Szanse i bariery rozwoju
przedsiębiorczości w Polsce – w ujęciu prawa publicznego oraz prawa prywatnego (The Actio Pauliana on as a Form of Protection of
Tax Receivables, [in] Opportunities and barriers to the development of entrepreneurship in Poland - in terms of public law and
private law), ed. L. Bielecki, J. Mojak, A. Żywicka, Lublin 2017, p. 297 and n .; E. Chylińska, F. Kalinowski, E. Maciejak, Skarga
pauliańska a zobowiązania podatkowe (Actio Pauliana and tax liabilities), [in] Analizy i Rekomendacje. Helsińska Fundacja Praw
Człowieka (Analyzes and Recommendations. Helsinki Foundation for Human Rights) 2016, No. 3, pp. 1-12; P. Machnikowski,
Gloss to the judgment of the Supreme Court - Civil Law of 16.04.2002. V CK 41/02, Orzecznictwo Sądów Polskich 2003 No. 2, item
22, pp. 90-92; A. Nita, W. Morawski, Wykorzystywanie skargi p auliańskiej do zabezpieczenia wykonania zobowiązania
podatkowego (Using Actio Pauliana to secure the performance of the tax liability), [in] Przegląd Sądowy (Ju dicial Overview) 2016
No. 6, pp. 9-20, K. Radzikowski, Czy organowi podatkowemu przysługuje skarga pauliańska (Does the tax auth ority have Actio
Pauliana action) [in] "Przegląd Prawa Publicznego" (Overview of Public Law), 2008, No. 7 - 8, p. 71; otherwise, M. Pyziak-
Szafnicka, See M. Pyziak-Szafnicka, [ in] System Prawa Prywatn ego (Private Law S ystem), edited by Z. Radwański, volume 6,
edited by A. Olejniczak, Warsaw 2009, p. 1227 and n.

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