Attachment of Earnings

Attachment of Earnings

1. General remarks

Attachment of earnings is an efficient method, one of the methods most frequently used in Poland to enforce the performance of a pecuniary claim to which the creditor is entitled against the debtor. Most people work for a living and they earn periodical earnings from their employers within their employment relationship. Attachment of earnings is so important that the provisions related thereto are also correspondingly applied to enforcement against bank accounts and against any other claims and property rights.

This enforcement is addressed to remuneration which has not yet been collected, or else to claims which the debtor as an employee has in respect to his/her employer. As the person concerned earns remuneration within an employment relationship, this determines the fact that the remuneration is recognized as earnings, whereby it is irrelevant as to whether the source of this relationship is a contract of employment, a nomination, an appointment or an election. The remunerability of work excludes any possibility of renouncing the right to one's remuneration in a legal way. Nor can the employee transfer this right to another person.

Attachment of earnings is distinguished by the fact that it generally takes longer, and the creditor is satisfied gradually therefrom, as the amount of money deducted from earnings and transferred to the creditor generally cannot satisfy the whole amount of enforced payables at any one time.

As for the debtor, attachment of his/her earnings is the least onerous means of state enforcement because of the function which is fulfilled in Poland by earnings. It is a source of maintenance for the employee and his/her family, and therefore, the remuneration is subject to enforcement exclusively to the extent identified in the provisions of the L.C.

It is an enforcement officer who is competent to lead attachment of earnings ratione materiae. The venue belongs to the enforcement officer who is competent because of the debtor's residence, regardless where the debtor works. However, if the creditor pursues maintenance or a pension which has a maintenance nature and addresses enforcement to earnings he/she may submit his motion for enforcement to be initiated to the judicial enforcement officer of the court competent according to his/her residence. A change in the debtor's residence after the enforcement procedure has been initiated, i.e. after attachment has been carried out, has no impact on the venue of the enforcement officer.

The motion for enforcement proceedings to be started shall meet the general requirements for a procedural writ and define the debtor's workplace, his employer and the latter's address.

Attachment of earnings is completed the moment the creditor's claim has been completely satisfied.

The provisions which deal with attachment of earnings are not applied to remuneration which has been already collected, as the right to earnings has already been effected.

Attachment of earnings is dealt with in particular in the provisions of art. 880-888 of the CCP and art. 87, 88 and 90 and 91 of the L.C.

2. The object of enforcement

Any proceeds from work which an employee earns within his/her employment relationship, in the widest possible extent are the object of enforcement. Pursuant to art. 881 § 2 of the CCP these are, in particular; periodically collected earnings and remuneration for contracted jobs, rewards and bonuses to which the debtor is entitled for the period of his/her employment, and any profit or share in the plant fund or in any other funds related to the employment relationship, with the exclusion of the part free of seizure. However, this enumeration is not exhaustive which is indicated by the expression 'in particular' used in these provisions. It is assumed that the notion 'earnings' includes any other proceeds which an employee may be entitled to in employment relationship. Therefore, in the light of the provisions on attachment of earnings, this enforcement is also conducted against old age and disability pensions and any social security or unemployment benefits/allowances.

Remuneration for contracted jobs counts as earnings as understood by this provision only when it is payable to an employee by his/her employer.

The C.C.P. does not define the notion of earnings but similarly to the L.C. it uses this notion, understood as proceeds or benefits earned for work performed within the employment relationship. As it is necessary to understand in the same way the same notions occurring in examining proceedings as well as in enforcement proceedings, it is assumed that the following are the matters arising from labour law, pursuant to art. 476 § 1 of the CCP:

1) cases for claims arising from employment relationship or those related thereto,

2) cases for claims arising from other legal relationships to which labour law is applied in accordance with separate provisions,

3) cases for indemnity claimed from employers pursuant to the provisions on benefits/allowances for accidents at work and vocational diseases.

Art 833 of the CCP also treats other repeatable receivables obtained by the debtor on an equal footing with earnings if they are earned to maintain the family. They are, for instance, the following:

1) per diem of members of parliament and senators,

2) receivables of agricultural produce cooperative members and their families, arising from work in agricultural produce cooperatives, with the exclusion, however, of receivables arising from their share in the cooperative proceeds falling to them and calculated from contributions brought into the cooperative.

Payments of remuneration are generally made in a pecuniary form; a partial payment of remuneration in a form other than pecuniary is admissible only when it is provided for by binding legal provisions, or by the collective labour agreement (art. 86 §2 of the L.C.).

3. Attachment of earnings

An enforcement officer initiates seizure of earnings by its attachment as defined under art. 881-882 of the CCP. The enforcement officer advises the debtor that he is not entitled to collect remuneration with the exclusion of its part free of attachment nor dispose of it in any other manner up to the amount of the claim being enforced, and until the whole debt is covered. If the debtor infringes the ban on collection and making dispositions of the earnings being seized, it may cause his/her penal and civil liability (art. 300 of the P.C. and 415 of the C.C.).

Furthermore, the enforcement officer summons the workplace (according to art. 3 of the L.C. "the workplace" means the employer) not to pay to the debtor any remuneration apart from its part free of attachment, but:

1) to transfer the earnings being seized directly to the creditor who enforces his/her claim, advising the enforcement officer on the first payment; such a procedure fosters a quick obtaining of the payables by the creditor according to the purpose of the enforcement, or

2) to transfer the earnings being seized to the enforcement officer in the case when another enforcement is also addressed to this remuneration or will be addressed during the enforcement procedure and the earnings in the executable part are not sufficient to cover all enforced claims.

At the same time, the enforcement officer advises the employer on the effects of a failure, if any, to fulfil the summons.

However, the enforcement officer, seizing the claim may, depending upon the circumstances request the employer to transfer to the enforcement officer directly the earnings attached.

The attachment is effected the moment the employer (as the debtor of the claim attached) has been served the enforcement officer's request, and has such an effect that in relation to the enforcing creditor, all dispositions of the earnings in excess of the part free of attachment are not valid both if carried out after the attachment, or before the attachment if the earnings are due only after the attachment.

By force of attachment of earnings, the creditor may exercise all rights and claims of the debtor (art. 887 § 1 of the CCP). In particular, when the employer has not paid the allowance being requested by the enforcement officer, the creditor may initiate an action against the debtor's employer. In consequence of the seizure, the creditor replaces the debtor in his/her rights.

Pursuant to art. 882 of the C.C.P., attaching earnings, the enforcement officer requests the employer to do the following within a week:

1) to present a list of periodical earnings of the debtor for a period of three months prior to the attachment, for each month separately, to make a list of periodical debtor's allowances for work and separately his incomes from any other titles;

2) to state amounts and dates when the attached earnings will be paid to the creditor;

3) in the case, there are obstacles hindering the payment of earnings, to make a declaration indicating the type of obstacles, and in particular, to state if other people have any claims, and if there is a judicial procedure with reference to the remuneration being seized or if other creditors addressed attachment for their claims to the earnings.

When the employer has presented these data, the enforcement officer will be able to check the correctness of the employer's calculation of the earnings part which is subject to attachment.

The workplace (employer) is obliged to notify the enforcement officer and the creditor immediately on any change of the above-mentioned circumstances.

Art. 884 § 1 of the CCP, puts into life the principle of continued seizure. Enforcement continues its force, even if after the attachment a new employment relationship or a new job contract is concluded with the employee, or even if the workplace has been transferred to another person, if this person knew of the attachment.

Pursuant to art. 884 §2 of the CCP, in the case, the contract of employment is terminated with the debtor, the hitherto workplace/employer makes a mention on the attachment of earnings in the employment certificate issued to the debtor. If the debtor's new workplace is known, the employer sends the enforcement officer' notification thereto, together with documents related to the attachment of earnings. Then, he notifies the enforcement officer and the debtor against whom the enforcement procedure is conducted thereon. The transfer of enforcement officer's notification brings about the same effects as the attachment of the debtor's receivables in the new workplace, starting from the moment when the notification has come to the workplace.

Art. 886 of the CCP formulates sanctions for non-fulfilment of duties mentioned therein by the workplace (employer) and the debtor. The enforcement officer may fine a certain person liable for neglect, identifying this person based on clarifications from the bodies authorized to represent the employer. If the employer has not appointed such a person, and it is impossible to identify her/him, the manager/director of the workplace is fined. The fine is levied out by the enforcement officer at an amount of 500 PLN (five hundred zloty), whereby the fine may be repeated if the workplace (employer) persists in avoiding the performance of these deeds in a further deadline. The enforcement officer may also impose a fine of 500 PLN (five hundred zloty) to a debtor who has not notified the enforcement officer on his/her change of workplace (employer).

An employer which has not complied with the requests of the enforcement officer or has infringed its duties arising from the attachment in any other way, has made a false declaration, or has paid a part of remuneration to the debtor, is liable to indemnify the damage caused to the creditor.

Art 883 § 2 of the CCP, protects the debtor's interest. The latter may request an annulment of the enforcement proceedings as to claims payable in future. (If the person is obliged to periodical payments, for instance, the maintenance, the pension). This is possible if the debtor pays all payable allowances, and puts into court deposit an amount equal to the sum of periodical allowances for six months with a simultaneous entitlement of the enforcement officer to collect money from this sum. The enforcement officer shall use this right if he learns that the debtor is in delay with the payment of mature allowances, and at the same time he will start enforcement ex officio. It is one of the very few cases when enforcement is initiated ex officio.

If a debtor is employed by a relative, this person cannot raise the objection that he/she paid the earnings to the debtor in advance. Nor can he/she object that the debtor worked without remuneration or for remuneration below the average or that he/she had the right to compensate from the earnings a claim due from the debtor (art. 1087 of the CCP) in case of attachment for maintenance performance.

4. Deductions from earnings

The provision which deals with deductions from earnings is art. 87 of the L.C. This provision limits both the scope and the amount of admissible deductions. It also identifies the sequence of satisfaction of claims if there is more than one of these to be deducted from earnings. This provision also protects the basic employee's interest, guaranteeing the payment of a relevant part of due remuneration, regardless of the type of payables deducted.

Enforcement of maintenance allowances shall be distinguished from enforcement of other payables. After deducting the prepayment for personal income tax, sums enforced by enforceable documents to satisfy maintenance allowances, which have a privileged nature, are deducted from earnings first. They are designated to satisfy current maintenance demand. Payables for maintenance satisfaction are deducted in higher amounts than others. Amounts enforced pursuant to enforceable documents to cover payables other than maintenance allowance are deducted in the next sequence.

The sums are deducted within the following limits:

1) in the case of maintenance allowance - to three fifths of remuneration, whereby rewards from the Plant Bonus Fund and receivables due to employees for their share in profit or in balance surplus are subject to enforcement to satisfy maintenance allowance up to the full amount,

2) in the case of enforcement of other payables - up to one half of the remuneration whereby the amount of the lowest earnings payable to employees employed in full time jobs is free from deductions.

In the case of joinder of deductions from both titles, the maximum amount of deductions cannot exceed three fifths of remuneration.

Pursuant to the provisions of the 17th December 1998 Law on Social Security Fund, Old Age and Disability Pensions (Journal of Laws No 162, item 1118 as amended), the sums enforced pursuant to enforcement titles are subject to deduction from pecuniary allowances defined in this Law. In the case of maintenance allowance it is an amount up to 60% of the benefit, and in the case of amounts enforced pursuant to other enforceable documents to cover other payables than maintenance allowance it is up to 25% of the benefit (art. 140 of the Law).

5. Direct execution of the enforceable document against earnings

The provision of art. 88 of the L.C. gives to the maintenance allowance creditor the right to submit a motion for deduction directly to the employer without the enforcement officer having to intervene. The creditor has to enclose the enforceable document. This is to facilitate the execution of the latter to the creditor and to reduce the costs of the enforcement proceedings related thereto. According to this provision, the principles defined in art. 87 of the L.C. being met, the employer may deduct money to satisfy maintenance allowance without any enforcement proceedings with the exception of the cases when:

1) maintenance allowances are to be deducted for a few creditors, and the total amount which may be deducted is not sufficient to cover fully all maintenance allowances,

2) the earnings have been already seized in a judicial or administrative enforcement procedure.

By force of art. 90 of the L.C., in all matters not dealt with in the discussed art. 88, the provisions of the C.C.P. are correspondingly applied.

Zbigniew Szczurek

Exchange rates of 2010-07-29

  Email to Webmaster

Copyright by Currenda & WMKiW, Sopot 2006