Dokonywanie waloryzacji opłaty przekształceniowej decyzją administracyjną – glosa krytyczna do wyroku Wojewódzkiego Sądu Administracyjnego w Opolu z dnia 18 kwietnia 2024 r., I SA/OP 270/24

This critical commentary on the judgment of the Voivodship Administrative Court in Opole of April 18, 2024 addresses the issue of indexation of the transformation fee under the 2018 Act on the Transformation of the Right of Perpetual Usufruct into Ownership. It is noted that administrative courts have adopted the view that indexation should be carried out by means of an administrative decision; however, this position is challenged in the present analysis. The article emphasises that there is no clear substantive legal basis for issuing an administrative decision in matters of indexation, since article 10 of the Act provides only for notification, which constitutes a material and technical act. Attention is drawn to the fact that the legislator deliberately abandoned the administrative procedure, recognising that indexation is based on objective indicators and does not require an authoritative decision. In the event of a dispute, judicial review under article 3 § 2 point 4 of the Law on Proceedings before administrative courts remains available, ensuring legal protection for owners. It is further argued that the absence of an administrative decision does not infringe the principle of two-instance proceedings or the right to a court, and that adopting a contrary view would unjustifiably extend the use of the administrative decision form without a legal basis. In conclusion, the judgment of the Voivodship Administrative Court in Opole is considered erroneous, and notification is identified as the appropriate form for the indexation of the transformation fee.