W sierpniowej Gazecie Leśnej ukazał się mój kolejny artykuł. Opowiedziałem w nim o bardzo ciekawej sprawie dotyczącej kary umownej i o temacie reprezentowania konsorcjum w sądzie. Ponieważ nie zapadł jeszcze prawomocny wyrok, nie czas na ocenę samego merytorycznego rozstrzygnięcia. Mam jednak nadzieję, że będzie przełomowe dla całej branży!
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W toku procesu ujawniło się interesujące zagadnienie dotyczące wspólnego występowania konsorcjantów. Dużą część wyroku wydanego w I instancji stanowią rozważania o tym czy, a jeżeli tak, to dlaczego pozew o zwrot nienależnej kary mógł być wniesiony tylko przez jednego z wykonawców.
Tak się bowiem stało, że drogi dwóch firm leśnych rozeszły się w trakcie roku gospodarczego. Umowę z Nadleśnictwem do samego końca realizowała wyłącznie jedna z nich. Tuż przed 31 grudnia zamawiający rozwiązał umowę potrącając karę z ostatnich faktur. Ucierpiał ten wykonawca, który został na placu boju. Poczucie krzywdy i sprzeciwu wobec wypowiedzenia, a także wysokość potrąconej sumy były na tyle duże, że zdecydował się na drogę sądową.
Nadleśnictwo od samego początku podważało możliwość prowadzenia procesu. Zarzut formalny był taki, że skoro umowa została zawarta z konsorcjum, obydwaj partnerzy powinni wspólnie występować przed sądem. Sąd powinien wezwać drugą z firm, bowiem konsorcjum w sądzie musi pojawić się w całości. Jeżeli partner nie przyłączy się do żądania, pozew powinien upaść ze względów proceduralnych, bez rozpoznania istoty (czyli bez oceniania, czy kara się należała czy też nie). To byłby groźny scenariusz dla tego, który chciał odzyskać swoje pieniądze.
W toku sprawy sąd przeprowadził wnikliwą analizę współpracy oferentów. Przesłuchiwani byli przedstawiciele stron. Sędzia badała umowę konsorcjum (o tym czy taka umowa jest istotna przeczytaj tutaj) i dopytywała, jak dokładnie wyglądało wykonywanie usług. Chodziło o ustalenie, na ile blisko działały obydwie firmy i jakie były pomiędzy nimi zależności. Gdyby okazały się naprawdę bliskie, sąd musiałby wezwać do sprawy drugą z firm.
Okazało się jednak, że miał miejsce (jak zwykle zresztą) podział terytorialny, a obydwaj wykonawcy świadczyli usługi w oparciu o własne zasoby. W rezultacie sąd uznał, że nawet w przypadku złożenia pozwu przez jedną firmę, pozew ten może zostać rozpoznany.
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Na koniec dodam, że wyrok pozostaje także merytorycznie korzystny dla ZUL-a, bo przewiduje zwrot zdecydowanej części kary. Czy tak będzie do końca – okaże się po rozpoznaniu apelacji, którą wniosło Nadleśnictwo.
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