Przegląd Ustawodawstwa Gospodarczego nr 06/2010

Mateusz Błachucki, Rafał Stankiewicz

Decyzja zezwalająca na dokonanie koncentracji z naruszeniem testu istotnego ograniczenia konkurencji (art. 20 ust. 2 ustawy antymonopolowej)

Decision of the competition authority clearing merger which substantially impedes the competition (Art. 20.2 of the Polish antimonopoly act)

The article addresses the issue of the regulation of decision of the Polish competition authority allowing the merger to proceed despite the fact that the transaction substantially impedes the competition on the relevant market. This type of decision is regulated in the Art. 20 of the Polish act on competition and consumer protection. This type of merger decision has been the source of controversies from the very beginning. For many commentators the provision should be abolished or there should be another authority competent to issue such decisions. They argue that such decisions are contrary to the axiology of the Polish act on competition and consumer protection. The authors argue that the analyzed type of merger decisions is the example of the necessity to harmonize the goals of the competition policy and the other public policies, especially the industrial policy. When applying Art. 20 Polish competition authority uses the public interest test to evaluate the impact of the notified concentration. The decision lies within the administrative discretion of the authority. Art. 20 sets high standard of proof and it places onus probandi upon the entrepreneur. The article reviews the case-law of the Polish competition authority and it presents the wider European context of analyzed problem. The authors argue that issuance of the merger clearance upon the public interest test is not unique for Poland and it may be found in the other European countries.

Andrzej Spratek , Rafał Sura

Zmiany w przepisach regulujących funkcjonowanie funduszy sekurytyzacyjnych

Changes in the regulations governing the functioning of securitization funds

In 2004, when introducing provisions concerning securitization into the Polish law, the legislator decided to reproduce the model adopted earlier in France, Spain and Italy, i.e. in countries applying the civil law system, with a developed financial market which opted for strong intervention in the securitization area and for setting up quite a restrictive legal framework covering elements of key importance for the functioning of this instrument. However, the Polish legislator has thus also accepted the necessity to permanently watch market trends concerning securitization and to appropriately adapt legal regulations in a way enabling its practical use. It should be remembered that securitization is a very complex instrument, which on top of that is constantly modified by ever newer and more complicated financial engineering solutions, which are very difficult to reflect in legal regulations.

This article describes changes introduced to provisions regulating the functioning of securitization funds resulting from the coming into force on January 13th, 2009 of the Act of September 4th, 2008 on amendments to the Act on investment funds, the Act – Banking Law and the Act on supervision over the financial market (Journal of Laws 2008, No. 231, item 1546). When assessing, whether these changes are justified, it should be assumed that they are the next step in the right direction on the way to adjust Polish law regulations governing securitization technique to European standards. Particular attention should be paid to a change which consists in enabling the creation of non-standardized securitization funds as funds with separated sub-funds, liquidating the requirement for the bank to obtain debtor’s consent to transfer receivables onto a securitization fund and removing the institution of securitization enforcement title from regulations. It may be assumed that mainly thanks to these changes the securitization market in Poland has gained a chance of further development.

Grażyna Cern

Odpowiedzialność biura podróży za „zmarnowany urlop” w prawie turystycznym

Travel agency liability for "spoiled vacation" in tourism law

The basic objective of the article is an attempt to answer the question that raises many doubts - whether a travel agency is obliged to compensate for the loss of recreation and thus “spoiled holiday”.  Trips (vacation) organization by travel agencies relying on providing services such as transport, accommodation, board, or the insurance is the provision of tourism services. It should be added that the trip organization is conducted on the basis of a concluded agreement to which provisions of the Civil Code and the act on tourism services are observed. Unfortunately, travel agencies customers repeatedly, due to inadequate trip organization or breach of certain benefits (e.g. lower quality), claim during action for damages that their recreation was completely or partially lost and earmarked for this purpose leave was “spoiled”. However, to resolve the above problem, the question whether it is a pecuniary or non-pecuniary damage must be answered. Whether it was inexecution or inadequate execution of the tourism services agreement. An important note is a statement that a travel agency may not exclude or limit its liability for inexecution or inadequate execution of the agreement. Even if the agreement included exception or limiting clause of the above liability then by law – the act on tourism services in connection with the provisions of the Civil Code, they will be null and void.

Mateusz Błachucki, Rafał Stankiewicz

Decyzja zezwalająca na dokonanie koncentracji z naruszeniem testu istotnego ograniczenia konkurencji (art. 20 ust. 2 ustawy antymonopolowej)

Decision of the competition authority clearing merger which substantially impedes the competition (Art. 20.2 of the Polish antimonopoly act)

The article addresses the issue of the regulation of decision of the Polish competition authority allowing the merger to proceed despite the fact that the transaction substantially impedes the competition on the relevant market. This type of decision is regulated in the Art. 20 of the Polish act on competition and consumer protection. This type of merger decision has been the source of controversies from the very beginning. For many commentators the provision should be abolished or there should be another authority competent to issue such decisions. They argue that such decisions are contrary to the axiology of the Polish act on competition and consumer protection. The authors argue that the analyzed type of merger decisions is the example of the necessity to harmonize the goals of the competition policy and the other public policies, especially the industrial policy. When applying Art. 20 Polish competition authority uses the public interest test to evaluate the impact of the notified concentration. The decision lies within the administrative discretion of the authority. Art. 20 sets high standard of proof and it places onus probandi upon the entrepreneur. The article reviews the case-law of the Polish competition authority and it presents the wider European context of analyzed problem. The authors argue that issuance of the merger clearance upon the public interest test is not unique for Poland and it may be found in the other European countries.

Andrzej Spratek , Rafał Sura

Zmiany w przepisach regulujących funkcjonowanie funduszy sekurytyzacyjnych

Changes in the regulations governing the functioning of securitization funds

In 2004, when introducing provisions concerning securitization into the Polish law, the legislator decided to reproduce the model adopted earlier in France, Spain and Italy, i.e. in countries applying the civil law system, with a developed financial market which opted for strong intervention in the securitization area and for setting up quite a restrictive legal framework covering elements of key importance for the functioning of this instrument. However, the Polish legislator has thus also accepted the necessity to permanently watch market trends concerning securitization and to appropriately adapt legal regulations in a way enabling its practical use. It should be remembered that securitization is a very complex instrument, which on top of that is constantly modified by ever newer and more complicated financial engineering solutions, which are very difficult to reflect in legal regulations.

This article describes changes introduced to provisions regulating the functioning of securitization funds resulting from the coming into force on January 13th, 2009 of the Act of September 4th, 2008 on amendments to the Act on investment funds, the Act – Banking Law and the Act on supervision over the financial market (Journal of Laws 2008, No. 231, item 1546). When assessing, whether these changes are justified, it should be assumed that they are the next step in the right direction on the way to adjust Polish law regulations governing securitization technique to European standards. Particular attention should be paid to a change which consists in enabling the creation of non-standardized securitization funds as funds with separated sub-funds, liquidating the requirement for the bank to obtain debtor’s consent to transfer receivables onto a securitization fund and removing the institution of securitization enforcement title from regulations. It may be assumed that mainly thanks to these changes the securitization market in Poland has gained a chance of further development.

Grażyna Cern

Odpowiedzialność biura podróży za „zmarnowany urlop” w prawie turystycznym

Travel agency liability for "spoiled vacation" in tourism law

The basic objective of the article is an attempt to answer the question that raises many doubts - whether a travel agency is obliged to compensate for the loss of recreation and thus “spoiled holiday”.  Trips (vacation) organization by travel agencies relying on providing services such as transport, accommodation, board, or the insurance is the provision of tourism services. It should be added that the trip organization is conducted on the basis of a concluded agreement to which provisions of the Civil Code and the act on tourism services are observed. Unfortunately, travel agencies customers repeatedly, due to inadequate trip organization or breach of certain benefits (e.g. lower quality), claim during action for damages that their recreation was completely or partially lost and earmarked for this purpose leave was “spoiled”. However, to resolve the above problem, the question whether it is a pecuniary or non-pecuniary damage must be answered. Whether it was inexecution or inadequate execution of the tourism services agreement. An important note is a statement that a travel agency may not exclude or limit its liability for inexecution or inadequate execution of the agreement. Even if the agreement included exception or limiting clause of the above liability then by law – the act on tourism services in connection with the provisions of the Civil Code, they will be null and void.

Jan Błeszyński, Uniwersytet Warszawski

Prawo własności intelektualnej

Komentarz do wyroku Sądu Najwyższego z 16 września 2009 roku (Sygn. akt I CSK 35/09)