SAC’s Grand Chamber clarifies formal requirements for power of attorney
The Grand Chamber of the Supreme Administrative Court has clarified certain aspects of granting a power of attorney for representation in proceedings before state authorities. The SAC pointed out that there are no stricter requirements for the granting of a power of attorney than it being explicitly accepted by the attorney and granted in a separate deed.
In case 2 As 103_2023-47, the Grand Chamber of the SAC ruled on whether the acceptance of the power of attorney by the attorney/agent is a condition for the power of attorney to be valid. The question was asked with reference, inter alia, to possible obstructive conduct in connection with authorisation to represent. Both the SAC and the Constitutional Court previously held that where a procedural act is apparently being done on behalf of another, it is the legal obligation of the attorney/agent to prove to the court their authorisation to represent the principal, including their acceptance of the power of attorney. However, this was a specific situation of proceedings with mandatory representation by a lawyer.
According to the SAC, as a rule, a written power of attorney submitted by a party to proceedings need not be executed as a separate deed and need not bear the acceptance clause of the attorney/agent or their signature. If a power of attorney was submitted within another submission, this does not give rise to any doubt as to the representation.
This interpretation means that if there is no doubt as to the power of attorney, then the administrative authority’s acts vis-à-vis the representative are effective even if it subsequently turns out that there was no representation in the private law sense. According to this interpretation, even if it is subsequently concluded that there is no contractual relationship establishing a representation, the delivery of notices to such an 'attorney/agent' may still be considered effective – and any negative consequences shall thus be borne by the person who incorrectly identified the attorney/agent.
The reason is that a power of attorney is primarily an external manifestation of the authorisation relationship, vis-à-vis third parties. It is a unilateral act of the principal, as opposed to a legal act which establishes a relationship of representation. The latter is bilateral. This applies throughout the Czech legal system, whereas the former special regulation in the Tax Procedure Code, which explicitly required the acceptance of a power of attorney for tax proceedings, was abandoned as of 1 March 2011. A power of attorney may therefore be contained in any submission by the principal, whether in paper or electronic form, including submissions by data mailbox.
According to the Grand Chamber, the described approach is not an obstacle to sanctioning possible obstructive acts, e.g., if the power of attorney is hidden in the submission as easily overlooked or inconspicuous wording within a large text.