Przegląd Ustawodawstwa Gospodarczego Nr 03/2007

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Artykuły

Marek Szydło

Unbundling własnościowy (ownership unbundling) jako instrument regulacyjny w sektorze energetycznym (część II)

Ownership unbundling as a regulatory measure in the energy sectorIn the II
Part of this article there is presented legal background and legal possibilities of the introduction of the ownership unbundling on the Community level. In the author's opinion, the only practical way of introducing of the ownership unbundling is to issue directive based on Article 95 of the Treaty. Article 95 of the Treaty enables Council to adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market. According to the Court of Justice, legal acts based on Article 95 of the Treaty should be aimed to elimination obstacles in free movement between Member States or should abolish appreciable distortion of competition between Member States (by creating so called level playing field). As for now, we can reasonably doubt, whether legal differences concerning the forms and scope of unbundling in the energy sector between particular Member States led to the such distortion of competition, which could justify recourse to the Article 95 of the Treaty and issuing the directive creating obligatory ownership unbundling in the whole Community (in all Member States). In this respect, we have to wait on the future development of the market situation and on results of the future steps taken by national regulatory authorities. Besides, introducing the obligatory ownership unbundling raises the serious doubts, whether such action would be compatible with the principle of subsidiarity and with the principle of protecting of undertakings fundamental right (especially with the protection of property rights).

Witold Borysiak

Skutki niewłaściwego oznaczenia Skarbu Państwa w postępowaniu cywilnym

Effects of Incorrect Designation of the State Treasury in Civil Proceedings
It occurs frequently in civil lawsuits that claimants designate as defendant only the organisational entity of the State Treasury which as such does not possess legal personality. With the claimant lies the duty to specify that the organisational entity of State Treasury is solely its statio fisci (see Article 67 § 2 of the Code of Civil Procedure). Organisational entities have legal capacity or capacity for acts in court only in the framework of the labour law. Otherwise, when the claimant does not act in compliance with the stipulated procedure, its statement of claim shall be rejected at every stage of the process (see Article 199 § 1 item 3 of the Code of Civil Procedure - the courts reject a statement of claim when one of the parties does not possess the capacity for acts in court). Inadmissible is, moreover, to designate the State Treasury as defendant ex officio, due to the fact that it is not only a "technical procedural aspect". Courts cannot ignore the designation of the defendant made only by the claimant in the statement of claim and consider it to be an immaterial formal irregularity. Courts are only obliged to correct the designation of the State Treasury's statio fisci (see Article 67 § 2 of the Code of Civil Procedure). The lack of legal capacity of an organisational entity can be supplemented neither by virtue of Article 70 § 1 of the Code of Civil Procedure nor by substituting the organisational entity by summoning the State Treasury itself to the process. It is also not allowed to supplement the lack of legal capacity by admission to the process of a party having capacity for acts in law in lieu of a party not possessing it ("the rule of identity of parties to the process") Additionally, it is also inadmissible to designate the State Treasury as defendant by the court itself by virtue of Article 130 § 1 of the Code of Civil Procedure ("lack of formal prerequisites").

Krzysztof Haładyj

O dopuszczalności dochodzenia roszczeń odszkodowawczych przez akcjonariuszy od spółek publicznych w związku z naruszeniem obowiązków informacyjnych

On admissibility of filing actions for damages by the shareholders against listed companies for the breach of disclosure obligations
The disclosure obligations imposed upon the listed companies aim at protecting the transparency and the effectiveness of capital markets. At the same time, the investors should also have a right to file the action for damages in case they suffered damage due to the breach of disclosure obligations by the listed company. In Poland, a right of action for damages in such situations is regulated in particular by the Polish Act on Public Offering. The aim of this article is to present the character of such actions as well as the scope of entities entitled to file them. Additionally, the article analyzes also the admissibility of filing such actions by shareholders in the context of the regulations of the Polish Commercial Companies Code.

Katarzyna Zajączkowska-Weremcz
Tadeusz Białek

Ochrona danych osobowych przedsiębiorcy będącego osobą fizyczną

Personal Data Protection for an Entrepreneur Who Is a Natural Person
The article addresses the issue of personal data protection for natural persons who carry out business activities. Bearing in mind the existing discrepancies in the doctrine and doubts as to practice, authors have made the attempt to point out whether the law on personal data protection provide legal protection for natural persons who carry out business activities. The authors devote a lot of attention to the constitutional right to privacy, concentrating, however, on the analysis of the applicable regulatory regime, according to which - until the date of 31 December 2006 - the data of natural persons carrying out business activities revealed in the business activity records were not subject to the protection envisaged in the Personal Data Protection Act. The authors made an analysis of community provisions within the scope of personal data protection, in particular "Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data as well as the Council of Europe Convention of 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data CETS No. 108", which - according to the standards of the Council of Europe - fulfills a fundamental role in the area of personal data protection and is de facto the oldest instrument for international protection of personal data. A lot of space has also been given to the legal analysis of national regimes of selected European Union states (Germany, Belgium, Great Britain and Italy). Moreover, the article refers to the views on personal data protection expressed by the judicial decisions of administrative courts and the Supreme Administrative Court.

Arkadiusz Michalak

Nowe pola eksploatacji utworu muzycznego w telefonii komórkowej na przykładzie dzwonków telefonicznych

New Fields of Exploitation of Musical works in the Mobile phone sector on the Example of Ring Tones
The article discuses ring tones exploitation from the copyright perspective. At the outset the Author presents the birth of ring tones market and it current growth. Further considerations are focused on the concept of filed of exploitation as a key concept of Polish copyright law. The Author describes general criteria of assessment whether a particular use of work can be treated as a separate field of exploitation. The conclusion is affirmative, which means that ring tones are new filed of exploitation not covered by previously know fields of exploitation of protected works. Next points of the article are devoted to consequences of treatment of a ring tones as a separate field of exploitation. The articles presents implications mentioned above related to the copyright transfer agreements and copyrights collective management.

Orzecznictwo w sprawach gospodarczych

Elżbieta Skowrońska-Bocian

Roszczenie osoby, której oferta została wybrana w przetargu o zawarcie umowy