Convoking a collegial organ

In the situation when “it is established by law that in order to place acts a superior needs the consent (…) of some college or group of persons, the

ganizations, and consists in using an information system which provides it in a processed form, adapted to a particular decision. Information that is required to make a decision is acquired on the basis of documentation that exists in a given organisational structure, in branches or external structures of the office, but it can also come from entities that cooperate with it. More on this in:

R. Biskup, S. Wrzosek, “Poszukiwanie koncepcji administracji publicznej,” Jakość administracji publicznej, 499; W. Wytrążek, Sprawność działania, 176–178.

27 “In any kind of trial, proof by means of both public and private documents is allowed”

(can. 1539). “Public ecclesiastical documents are those which a public person has drawn up in the exercise of that person’s function in the Church, after the solemnities prescribed by law have been observed. Public civil documents are those which the laws of each place consider to be such. Other documents are private” (can. 1540).

28  A proof in administrative proceedings can be anything that contributes to the explana-tion of a case and is not contrary to the law. See: A. Wiktorowska, “Postępowanie dowodowe,”

Postępowanie administracyjne – ogólne, podatkowe, egzekucyjne i przed sądem administracyjnym, ed.

A. Wierzbowski, Warszawa 2005, 102–122.

29  As for proofs in administrative procedure, by analogy we can use the prescripts on pro-cesses contained in cann. 1526–1586.

30 J. García Martín, Le norme generali del Codex, 215–217.

31 J. Krukowski, in: Komentarz do Kodeksu, vol. I, 114.

college or group must be convoked according to the norm of can. 166” (can.

127, §1). Can. 166 provides that:

§1. “The person presiding over a college or group is to convoke all those belonging to the college or group; the notice of convocation, however, when it must be personal, is valid if it is given in the place of domicile or qua-si-domicile or in the place of residence.

§2. If anyone of those to be convoked was overlooked and for that rea-son was absent, the election is valid. Nevertheless, at the instance of that same person and when the oversight and absence have been proved, the election must be rescinded by the competent authority even if it has been confirmed, provided that it is evident juridically that recourse had been made at least within three days from the notice of the election.

§3. If more than one-third of the electors were overlooked, however, the election is null by the law itself unless all those overlooked were in fact present.”

In the light of the above disposition, the convocation of the college of consultors (can. 502) or/and diocesan finance council (can. 492), which are competent to express consent to a given administrative act, is an obligation exclusive to the diocesan bishop. He is also entitled to preside over their meetings.³² The manner in which to convoke such a meeting is left to the discretion of the chairperson. The legislator only specifies that a personal notice is valid if it was served in the place of domicile or quasi-domicile, therefore nothing prevents the bishop from informing the consultors e.g.

during a meeting of the presbyteral council. If a notice of a meeting were issued by any of the auxiliary bishops or vicars general or episcopal vicars, they should inform in the notice of their authorisation from the diocesan bishop (can. 131, §3). The service of a notice and documents is a vital ele-ment of administrative proceedings, and it produces specific legal effects.

A notice must be personal, addressed to every member of the mentioned bodies, sent to the place where a person has domicile, quasi-domicile, or place of residence (see cann. 100–107).³³ The delivery address must be sub-mitted for correspondence by all members of the college of consultors and diocesan finance council. Correspondence can be delivered by post against

32 J.I. Arrieta, Diritto dell’organizzazione ecclesiastica, 131.

33 Can. 102, §1. “Domicile is acquired by that residence within the territory of a certain parish or at least of a diocese, which either is joined with the intention of remaining there per-manently unless called away or has been protracted for five complete years.

§2. Quasi-domicile is acquired by residence within the territory of a certain parish or at least of a diocese, which either is joined with the intention of remaining there for at least three months unless called away or has in fact been protracted for three months.”

confirmation of receipt or through workers of the curia. The bishop decides upon a given way of delivery (typically by post). The service of a notice can be done by electronic means, if this is regulated by the particular law. It is to be supposed that the recipient of the notice should confirm the receipt thereof, just like in the case of a decree, by placing a signature and date of receipt (cf. can. 55). If the recipient refuses to confirm the receipt which did occur, the delivery person himself confirms such a refusal and the date of service of the document (can. 56).

Generally, in accordance with the rule of notification, CIC/83 provides that a written notification be delivered to its recipient, but it is permissible, in ur-gent matters, to notify him by telephone or telegraph, as well as by other means of communication. If delivered not in the written form, the notice in question should include all elements envisaged for a summons. The notice is valid only if no doubt exists that it reached the recipient in the proper form and in due time, allowing the recipient to take due notice of the meeting, and to arrive.

The notice, or invitation, to a session should include the date, time, and venue of the meeting, as well as the agenda. Such a notification should also clearly state the purpose of a meeting (the subject matter), including legal and factual reasons (can. 51), and other necessary information.

By way of summary, the reading of the provisions regulating the convo-cation of a collegial organ or organs can lead to different interpretations.³⁴ The fact that CIC/83 leaves this matter open to interpretation gives a par-ticular legislator an opportunity to further specify this, for example in the statute of a diocesan finance council and college of consultors.

1.1.1.3 Meeting

The meeting of a collegial organ is presided over by the diocesan bishop.

Having greeted and ascertained the quorum, the bishop should present the agenda, and then – after it has been accepted – go on to present the theme in a synthetic, thorough, and comprehensive way. Depending to what kind of administrative act consent is to be obtained, the bishop is to state his rea-sons for the intended act, and provide legal, factual, economic and pastoral reasons.

1) When the bishop wishes to obtain consent to place acts of extraordinary administration expressed in universal law or the charter of a foundation (can.

1277), he should remind personally or through another person – for example

34 See: M. Sitarz, Kolegium konsulatorów w Kodeksie Prawa Kanonicznego 1983 i partykularnym prawie polskim, Lublin 1999, 102.

the diocesan finance officer, if he is a member of the college of consultors, or someone else who is not a member of a consultative body – the requirements of the universal and particular law, or the charter of a foundation. According to CIC/83, the question which acts constitute acts of extraordinary adminis-tration is decided by the conference of bishops of a particular country (can.

1277) at a plenary meeting, observing rules approved by the Apostolic See and the procedure envisaged by can. 455.³⁵ An act of extraordinary adminis-tration in a foundation is determined by its charter or particular law, while an act of extraordinary administration in other juridic persons who are subject to the bishop, for example parishes, should be determined by the diocesan bishop after hearing the diocesan finance council.³⁶

2) As regards collegial consent to an intended alienation of dioce-san property³⁷ whose value falls within the limits determined for a given country the bishop should precisely declare the value of the goods to be

35  The majority of episcopal conferences of the Catholic Church have made such a distinc-tion, see: E. Caparros, M. Theriault, J. Thoren, Code de droit canonique, Montreal 1990, 1222–1356;

J.C. Perisset, Les biens templels de l’Eglise. Commentaire des Canons 1254–1310, Freibourg 1996, 153–

156. The Polish Episcopal Conference has not announced in its official journal for promulgation what an act of extraordinary administration is. See: AKEP, Warszawa 1998–2007, nos. 1–13.

36  “The statutes are to define the acts which exceed the limit and manner of ordinary ad-ministration; if the statutes are silent in this regard, however, the diocesan bishop is competent to determine such acts for the persons subject to him, after having heard the finance council”

(can. 1281, §2). It should be noted that the disposition of can. 1281, §2 was not clear since it was not precisely specified which council was in questions – the diocesan finance council (can. 492) or own financial council, which every legal person must have pursuant to can. 1280. This doubt was elucidated in 2004 by the Congregation for Bishops as follows: “As sole administrator of the diocese, the bishop (…) is to establish by decree, after having heard the diocesan finance council, those acts which exceed the limits and the parameters of ordinary administration” (AS 188).

37 Alienation of ecclesiastical goods in the proper sense is only such a legal act whereby the ownership (i.e. so-called dominium directum) passes from one subject to another, both by gratu-itous title (titulo gratuito, eg. a donation) and onerous title (titulo oneroso, e.g. sale or exchange).

Alienation which is mentioned in CIC/83 is to be understood in a broader sense: as any legal act that transfers ownership from one to another person, i.e. any agreement (contractus) where-by the assets of the Church are depleted. Therefore, this interpretation encompasses not only deeds of sale, donations, or other ways to transfer ownership, but also any methods that deplete one’s assets. Cf. F. Pasternak, Urzędy i beneficja kościelne. Majątek kościelny, Warszawa 1970, 292.

It should be added that CIC/83 did not provide a definition of alienation of ecclesiastical goods.

The notion of alienation was adopted (according to cann. 6, §2 and 19 of CIC/83) from CIC/17 (can. 1533). According to Wójcik, “an act in law which is subject to the norms of alienation is any act that incurs obligations for an ecclesiastical juridic person – regardless of whether or not it is financially beneficial. The following acts are such: a deed of sale, exchange, loan, donation, lease, any financial burden, etc.” See: W. Wójcik, “Dobra doczesne Kościoła,” Komentarz do Kodeksu Prawa Kanonicznego z 1983 r., ed. W. Wójcik, J. Krukowski, F. Lempa, vol. IV, Lublin 1987, 92).

alienated, and state the factual and legal reasons. The conference of bishops establishes the maximum and minimum sum for the diocese. In the case of juridic persons who are not subject to the diocesan bishop, the limits are established in statutes. “Otherwise, the competent authority is the diocesan bishop with the consent of the finance council, the college of consultors, and those concerned. The diocesan bishop himself also needs their consent to alienate the goods of the diocese” (can. 1292, §1).

If the diocesan bishop were indicated in the statutes as the person in charge of the alienation of goods belonging to a juridic person over whom he did not have the power of governance, he would not have to ask the college of consultors and diocesan finance council for consent. On the other hand, if a public juridic person is subject to the diocesan bishop, he is com-petent to alienate goods if the above-mentioned conditions are met, within the sum determined by extraordinary administration. In this case, the dio- cesan bishop can alienate goods that constitute by legitimate designation stable patrimony of a public juridic person only by consent of three organs:

the college of consultors, diocesan finance council, and interested persons.

Therefore, he should inform the gathered members whether he has already obtained the consent of the interested persons, such as a founder, pastor, rec-tor of a church or holder of personal or real rights.³⁸

According to can. 1291, only stable patrimony of a public juridic person can be alienated.³⁹ This is goods that serve daily life and are not transfera-ble since they constitute the basis of existence of a given juridic person.⁴⁰ In this sense, stable patrimony encompasses immovable property and mova-ble goods.⁴¹ Consequently, the diocesan bishop does need the consent of the

38 See: T. Pawluk, Prawo kanoniczne według Kodeksu Jana Pawła II, vol. IV, Olsztyn 1990, 89; W.

Wójcik, Dobra doczesne Kościoła, 102; J.C. Perisset, Les biens temporales de l’Eglise, 202–211.

39 “Public juridic persons are aggregates of persons (universitates personarum) or of things (universitates rerum) which are constituted by competent ecclesiastical authority so that, within the purposes set out for them, they fulfil in the name of the Church, according to the norm of the pre-scripts of the law, the proper function entrusted to them in view of the public good” (can. 116, §1).

40  The following goods may not be alienated (though this is permissible under certain con-ditions): sacred relics and paintings which are venerated by the faithful, which without injury to can. 1292, §2 may not be lawfully alienated or transferred permanently to another church with-out the consent of the Apostolic See; 2) immovable property of the Church; 3) movable, durable property, i.e. those items which may last if properly maintained (for example, books, paintings, manuscripts, etc.); 4) objects which are precious on account of their artistic, historic value or the material (out of which they were made); for more, see: F. Pasternak, Urzędy i beneficja, 292–300.

41 “Within the limits of ordinary administration only, administrators are permitted to make donations for purposes of piety or Christian charity from movable goods which do not belong to the stable patrimony” (can. 1285).

above-mentioned collegial organs if the goods in question are those used on a regular basis by a public juridic person, also if the value of the alie- nated goods does not exceed the sum determined in the charter of a foun-dation.⁴² It is always in the diocesan bishop’s discretion to issue acts of extraordinary administration, the limit of which is the lowest amount set for acts of extraordinary administration by the conference of bishops of a given country.⁴³

Before turning to a consultative body for consent, the diocesan bishop should provide such an organ with any information necessary for assuming a competent and responsible standpoint on a given matter.⁴⁴ Concealment of the essential information can result in invalidity of an act, constitute the basis for nullification, or cause alienation to be rescinded through the sen-tence of a judge (see cann. 125,⁴⁵ 126⁴⁶).

42 In Pasternak’s opinion, the following cannot be alienated: 1) movable, expendable items of little value (fruit, cereals, money for circulation, and the like); 2) immovable property of little value (e.g. stretches of infertile land that incur losses despite outlays made); 3) objects donated to the Church with a provision that they be sold, and the money gained therefrom securely allo-cated. F. Pasternak, Urzędy i beneficja, 294.

43 In a session in Szczecin on 16–18 June 1995, the Polish Episcopal Conference passed a re solution by a two-thirds majority thereby setting the amount of 500,000 US dollars as the value of alienated property above which the consent of the Apostolic See is required, without preju-dice to the other prescripts of CIC/83. The lower limit of the value of alienated goods was set to the equivalent of 100,000 US dollars (AKEP 1998, no. 1, 143–146). This decree was binding until 5 December 2006, when the Congregation for Bishops issued a decree whereby the previous re- solution of the Polish Episcopal Conference was acknowledged in which it had been established that 1,000,000 EUR worth of alienated goods is the sum above which the consent of the Apostolic See is required, and the sum of 100,000 EUR is the lower limit for the value of goods to be alie- nated. The decree of the Congregation for Bishops, marked Prot. N 901/84, was promulgated in:

AKEP 2007, no. 13, 32–33. More on this in: S. Dubiel, Uprawnienia majątkowe Kościoła Katolickiego w Polsce w świetle Kodeksu Prawa Kanonicznego z 1983 roku, Konkordatu z 1993 roku i ustaw syno- dalnych, Lublin 2007, 144.

44 Additional information which was not handed over to the members upon their receipt of the notice.

45 “An act placed out of force inflicted on a person from without, which the person was not able to resist in any way, is considered as never to have taken place. An act placed out of grave fear, unjustly inflicted, or out of malice is valid unless the law provides otherwise. It can be re-scinded, however, through the sentence of a judge, either at the instance of the injured party or of the party’s successors in law, or ex officio” (can. 125).

46 “An act placed out of ignorance or out of error concerning something which constitutes its substance or which amounts to a condition sine qua non is invalid. Otherwise it is valid un-less the law makes other provision. An act entered into out of ignorance or error, however, can give rise to a rescissory action according to the norm of law” (can. 126).

The legislator imposes on the consultative bodies a duty to analyse the material status of a legal person. This obligation concerns the diocesan fi-nance council and college of consultors. CIC/83 provides: “Those who by advice or consent must take part in alienating goods are not to offer advice or consent unless they have first been thoroughly informed both of the eco-nomic state of the juridic person whose goods are proposed for alienation and of previous alienations” (can. 1292, §4). For this reason, these bodies who have their part in the act of expressing consent to alienate should de-termine whether the goods in question constitute stable patrimony (stable income of a juridic person) or the alienation may ruin the finances of the institution, or whether the alienated asset is divided, or the request for per-mission to alienate enumerates the parts previously alienated (can. 1292,

§§3–4). Apart from the essential requirements for a valid alienation of goods, CIC/83 establishes the following in can. 1293:

Ҥ1. The alienation of goods whose value exceeds the defined minimum amount also requires the following:

1) a just cause, such as urgent necessity, evident advantage, piety, cha- rity, or some other grave pastoral reason;

2) a written appraisal by experts of the asset to be alienated.

§2. Other precautions prescribed by legitimate authority are also to be observed to avoid harm to the Church.”

According to the canonists Bączkowicz,⁴⁷ Pasternak⁴⁸ and Wójcik,⁴⁹ a good reason for alienation that is described in §1, can be:

a) an urgent need which cannot be otherwise satisfied, such as conver-sion or restoration of a church, purchase of indispensable liturgical utensils, repayment of debts;

b) tangible benefit for the Church, for example the sale of infertile or inaccessible land with a view to purchasing better land;

c) piety, for example willingness to help the poor in the time of war, na-tural disaster, or pestilence, the need to build a church;

d) charity, i.e. concern for the poor and ill (can. 222).

In accordance with the disposition of can. 1294, §1, ecclesiastical goods are not to be alienated below a value determined by experts who must have scientific qualifications and recognized expertise. Moreover, the sale of an asset is to be carried out by way of public tender or it must be announced

47 F. Bączkowicz, J. Baron, W. Stawinoga, Prawo kanoniczne. Podręcznik dla duchowieństwa, vol. II, Opole 1958, 577–580.

48 F. Pasternak, Urzędy i beneficja, 294.

49 W. Wójcik, in: Komentarz do Kodeksu Prawa Kanonicznego z 1983 r., vol. IV, 84–94.