A negative assessment of a funding application does not necessarily mean the end of the procedure for obtaining financial support. In many cases, the outcome of the assessment can be challenged, first by lodging a protest under the appeal procedure provided for in the Implementation Act.
In this article, I explain how the project selection procedure works, what limits apply to the assessment of a project, and when and on what grounds a negative assessment can be successfully challenged. You may also wish to read: Is it worth lodging a protest against a negative assessment of a funding application?
How are projects assessed for funding?
The procedure for selecting projects for funding is often perceived as opaque and, at times, even unfair. Applicants may feel that a great deal depends on the experts’ assessment and that the funding institution has broad discretion in interpreting the criteria and awarding a lower score to a particular project.
That perception is not entirely unfounded. In practice, there are cases in which the reasons given for an assessment are brief or refer only to general concerns. At the same time, however, the assessment procedure is not arbitrary. It is governed by relatively detailed rules, and the funding institution is subject to specific legal constraints.
Negative assessment of a funding application – what are the limits of the assessment?
The starting point is the principle that funding may be awarded only to a project selected for funding, and only a project that satisfies the applicable selection criteria may be selected. This means that the funding institution may not assess a project against its own expectations that were not previously expressed. Each assessment should be based on the criteria laid down in the rules of the call and, more broadly, in the call documentation.
This is particularly important in practice where the reasons given for a negative assessment of a funding application do not directly address the relevant criteria or rely on general statements. In such cases, a genuine question arises as to whether the assessment was carried out in accordance with the applicable rules.
What documents may the funding institution request?
The rules governing the scope of information that the funding institution may request from an applicant are also important. The Act on the principles for implementing tasks financed from European funds in the 2021–2027 financial perspective (the implementation legislation) does not give the institution complete discretion in this respect. Requests should be limited to what is necessary to assess the application or the project seeking funding. In practice, this means that expanding the scope of requests during the assessment should be the exception rather than the rule.
In addition, the legislation expressly provides that documents should not be requested where the relevant information is already known to the funding institution or can be established from available public registers. In practice, however, applicants are often asked to submit documents that are already available in public systems. Such requests do not automatically invalidate the procedure, but they may affect the project assessment if the response is not prepared in the manner expected by the institution.
Supplementing a funding application does not amount to changing the project
At the assessment stage, the applicant may also be given an opportunity to supplement or correct the application. This stage is sometimes mistakenly treated as an opportunity to “improve” the project itself. However, the scope of permissible changes is strictly limited by the rules governing the call. In practice, this stage is intended to clarify or supplement the application rather than to change the fundamental assumptions of the project. Crossing that boundary may lead to the conclusion that the project did not satisfy the relevant criteria at the time the application was submitted.
Protest against a negative assessment of a funding application
If the applicant considers that the assessment was carried out incorrectly — for example, because relevant information was overlooked, the criteria were applied incorrectly or the permissible scope of requests was exceeded — the applicant may use the appeal procedure.
The appeal takes the form of a protest, as provided for in Article 63 of the implementation legislation. Its purpose is not to supplement the application or present a new concept for the project, but to have the assessment reconsidered in terms of compliance with the applicable criteria. The protest must be lodged within 14 days of receiving information on the assessment result. It must contain the elements specified in Article 64 of the implementation legislation, including, in particular, an indication of the assessment with which the applicant disagrees and the reasons for challenging it. In practice, this requires very precise reference to the relevant criteria and to the way in which they were applied in the particular case.
The procedure for examining a protest is essentially a two-stage process. First, the institution that carried out the assessment conducts a self-review. If it finds grounds for changing the result, the protest is referred to the competent institution — the managing authority or, where one has been designated for the programme, the intermediate body — which reviews the correctness of the assessment. As a rule, the protest should be examined within 21 days, although this period may be extended, but not beyond 45 days.
As a result of the protest procedure, the project may be admitted to the next stage of assessment, selected for funding or referred for reassessment. If the protest is not upheld, the applicant may lodge a complaint with an administrative court.
Complaint to an administrative court – when and on what grounds?
If the protest is not upheld, the project receives a negative reassessment or the protest is left without consideration, the applicant may lodge a complaint with the competent Voivodeship Administrative Court. The legal basis is Article 73 of the implementation legislation. At this stage, one point is crucial: the court does not reassess the project “from scratch”. Nor does it replace the funding institution in the substantive assessment of the project. The court examines only whether the project selection procedure was conducted in accordance with the law and whether any infringements could have had a material effect on the assessment result.
The complaint must be lodged within 14 days of receiving information on the outcome of the appeal procedure. Importantly, it is filed directly with the Voivodeship Administrative Court, together with the complete case documentation and proof of payment of the court fee.
The legislation defines “complete documentation” very precisely. It includes, in particular, the funding application, information on the assessment result, the protest lodged by the applicant and the decision on the protest, together with any attachments. Deficiencies in this documentation may have significant procedural consequences.
As a rule, lodging a complaint after the deadline, without the required documentation or without payment of the court fee results in the complaint being rejected. The implementation legislation allows deficiencies to be remedied within seven days of a court request, but failure to meet that deadline definitively closes the judicial route.
Proceedings before the administrative court in these cases are expedited, which means that the court should examine the complaint within 30 days of its submission.
If the court upholds the complaint, it does not award funding or carry out its own assessment of the project. Instead, it finds that the assessment was conducted in breach of the law and that the infringement had a material effect on the outcome, and it refers the case back to the competent institution for reconsideration. The same applies where the court finds that leaving the protest without consideration was unjustified. In other cases, the complaint is dismissed.
A cassation appeal against the judgment of the Voivodeship Administrative Court may be lodged with the Supreme Administrative Court within 14 days of service of the judgment. Cassation proceedings are also conducted under an expedited procedure.
One further important principle should be noted: incorrect instructions, or the absence of instructions, do not deprive the applicant of the right to lodge a complaint. This means that even an error on the part of the funding institution in this respect should not close the route to judicial review.
The appeal procedure and the Code of Administrative Procedure
The specific nature of the appeal procedure itself is also important. Under Article 72 of the implementation legislation, the provisions of the Code of Administrative Procedure generally do not apply. The exception is Article 24 of the Code, concerning the exclusion of an employee, together with the provisions on service and calculation of time limits, which apply accordingly.
This distinction has practical significance. It means that standards known from ordinary administrative proceedings cannot automatically be transferred to this procedure.
At the same time, the legislature expressly lays down formal requirements for communications within this procedure. A protest, notification of the outcome of its examination and information sent to the applicant must be signed — either with a handwritten signature or with an appropriate electronic signature, including a qualified, trusted or personal signature. This is a requirement that is sometimes overlooked in practice and may affect the effectiveness of the procedural step taken.
Why does the way in which the assessment is conducted matter?
It should also be remembered that the appeal procedure does not suspend the conclusion of grant agreements with other applicants. In practice, this means that even a successful protest will not always result in funding being awarded if the available funds have already been allocated.
As a result, the project selection procedure is not as flexible as it may appear. It is governed by specific rules that bind both the funding institution and the applicant.
From the applicant’s perspective, what matters is not only how the project itself is prepared, but also how the applicant responds to its assessment. It is often at this stage that it is determined whether the matter will end before the funding institution or proceed to the administrative court.
Summary
A negative assessment of a funding application does not always mean that the matter is closed. The project selection procedure is governed by specific rules, and a breach of those rules may provide grounds for challenging the assessment result.
What is crucial, however, is how the applicant acts at this stage. Neither lodging a protest nor subsequently bringing a complaint before an administrative court serves to “improve” the project. Their purpose is to verify whether the assessment was conducted in accordance with the applicable rules.
In practice, this means that, already when analysing the assessment result, it is worth looking not only at the project itself but also at the course of the entire procedure. This is usually the point at which it becomes clear whether the matter will end at the level of the funding institution or continue before the court.
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