Przegląd Ustawodawstwa Gospodarczego nr 4/2013

PRZEGLĄD USTAWODAWSTWA GOSPODARCZEGO 4/2013

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Spis treści

Kazimierz Strzyczkowski, Uniwersytet Łódzki
Przedsiębiorstwo publiczne wobec prawa równości

Summary:

Public undertakingand right to equal treatment

The article seeks to explain a controversial question of the relations between public undertaking and right to equal treatment with reference to still remaining in area of ambiguityconstitutional fundamental rights. In order to clarify whether public undertaking are a subjects of right to equal treatment, it remainsnecessary to elaborate a notion and function of the fundamental rights and also scope of their subject matter. Provided analysis have proven that public undertaking are not a subjects of the economic activity law. Their participation in economy is rather a subject of proper legal regulations but situated outside of actualization of the freedom of economic activity law. This paper meant to demonstrate distinction in attitudes towards equal treatment of the public undertakings in the law of Member States and in law of European Union.The law of European Union guarantees principle Equal treatment of public and private undertakings in internal market. Nevertheless, law of the Member State regulates not only equality of private and public undertakings but also ensures their economic freedom.

Tomasz W. Kolasiński, Uniwersytet Warszawski
Nowe reguły zarządzania gospodarczego w strefie euro. Wybór zagadnień.

Summary:

New rules of economic governance for the Euro Area. Selected issues.

The evolution of financial crisis in the banking sector in the United States into financial and (!) state public finance crises in some member countries of the Euro Area has revealed a number of weaknesses in the economic governance of the Economic and Monetary Union (EMU). The fiscal rules of EMU were based on a simple predicament - government should reduce budget deficits to close to balance and then let automatic stabilisers play freely. Why this does not work? Why is this mechanism disappointing? Why several Euro Area member countries continued the fiscal retrenchment, even moving in some periods into surplus (Germany), but other (Portugal, Greece) have been trapped in high deficits and public finance imbalances?
Since the membership in third stage of EMU established adoption of a single currency Euro and a single monetary policy as the basic tasks of the European Central Bank (ECB) - individual member states can no longer act independently via their national central banks in this area. This is a serious shortcoming for these EMU countries in which structures of their national economies require both the monetary and fiscal (budgetary) policy impacts to conduct, govern and taking care of national economy - to keep it competitive. As meeting the Maastricht convergence criteria and adoption of the Stability and Growth Pact (SGP) do not quarantee “real” but only “nominal” (sometimes shallow) convergence, all economic imbalances and threaths that occur in such EMU economies could be cushioned in only one way - by the fiscal (budgetary) operations of the authorities (national governments). Ensuring and exercising fiscal responsibility in both competitive, highly industrialized member states of EMU (Germany) and economies that are weak, not competitive, dependent on foreign capital flows and import (Estonia, Greece, Portugal) is under EMU rules something idyllic, artificial and impossible to reach especially during recession and economic slowdown. On 28 September 2011, the new acquis has been approved, the so-called “six- pack” of new rules. Four of the “six-pack” proposals aim to strengthen already known the Stability and Growth Pact (Theo Weigel Pact) and budgetary surveillance, while the remaining two focus on monitoring and controlling macroeconomic imbalances within the EU. This idea seems frightening for future as far as in some EMU member states public finance crises is the price this states pay for politicians’ ambitions to integrate under Euro umbrella despite structural differences that no legal Community act has ever the power to smooth.

Tomasz Szanciło, Wyższa Szkoła Prawa i Administracji w Warszawie
Kontraktowa odpowiedzialność domu maklerskiego w obrocie papierami wartościowymi

Summary:

Contractual liability brokerage house in trade in securities

One of the components of the capital market is a stock exchange, offering investors the opportunity to obtain high profits in a short period of time, but also the possibility of substantial losses. An investor using the services of a brokerage house, entrusts their money to him and in this case the responsibility of a brokerage house must be considered taking into account the increased meter diligence, because he has to work to the best of their knowledge, in order to multiply the investor’s assets. However, a problem arises if the broker is responsible when his actions do not bring the expected benefits to the investor, or if for some other reason not execute an order to buy or sell securities. The responsibility of the brokerage house it is to be approached with a high degree of caution. Although the contract linking the investor with a brokerage house is a due diligence of the contract, this shall be the rules of the capital market, which determine the attribution of responsibility for wrong decisions in investing. It is not possible situation in which a brokerage house, although it is a professional, buys and sells securities on behalf of investors always in the best time. Investing in the stock market is based on the prediction, based on knowledge, experience and professional life, analysis, etc., but these factors do not give confidence that the purchase and sale of financial instruments will bring a profit every time, much less in the amount of expected by the investor. Fluctuations in the value of shares (and other financial instruments) on the stock exchange also results in the fact that non-engagement in accordance with investor guidelines may result both to a loss, but profit. The most important is to answer the question of whether in each case the damage occurs, it is in the causal behavior of the brokerage house, which the civil law involves liability for damages.

KONSULTACJE

Michał J. Piętal, Międzynarodowy Instytut Biologii Molekularnej i Komórkowej w Warszawie
Możliwości prawne komercjalizacji oprogramowania polskich jednostek naukowych

Summary:

Legal opportunities for software commercialization of Polish scientific units

The 2010-2011 reform of Polish higher education and science system enabled the scientific units to use clear legal paths in order to commercialize their R&D results. Lecture of those amendments alone or all the comments to date, gives an impression that the vast majority of those regulations addresses solely patenting the inventions and then selling them on commercial markets. Hence to the author, a natural need arose to attempt to describe the implications of the amendments as new opportunities for scientific units to commercialize computer programs, which is mainly software but not only.
The article in question distinguishes three prime legally labeled incarnations of computer programs, that is: software, databases but also software-as-a-service (which is a service of delivering a program over the internet). Then, Polish IP legal system which protects those entities is summoned and elaborated. As an extension of legal acts, several crucial open source licenses are described and compared as well. In the end, all three amended acts are described and commented as Polish scientific units capabilities to commercialize computer programs: Higher Education Law, Polish Academy of Sciences Law and Research Institute Law. The article also contains conclusions and suggestions, which address certain ambiguous issues.

PRAWO WŁSNOŚCI INTELEKTUALNEJ

Grzegorz Materna, Instytut Nauk Prawnych PAN
Antymonopolowa ocena wysokości stawek wynagrodzeń za korzystanie z utworów lub przedmiotów praw pokrewnych w świetle znowelizowanego prawa autorskiego

Summary:

The antitrust assessment of the amount of royalties rates for using the copyrighted works or objects or related rights in the light of the amended copyright law

The article discusses the legal grounds for making an assessment of the amount of royalties rates applied by copyright management organisations with a dominant position under the provisions of the Act on Competition and Consumer Protection prohibiting imposing unfair prices by dominant undertakings. According to the Author of the article the activities of the collecting societies are limited by the competition law. Nevertheless in the present state of law there is no basis to asses under antitrust law the amount of the royalties in the fields where they are subject of obligatory presentation of approval to the Copyright Commission – even if the amount of the royalties is not yet finally approved. Where the approval of the Copyright Commission is not compulsory – President of the Office of Competition and Consumer Protection retains its power to assess the amount of collecting societies’ royalties rates under the provisions prohibiting dominant undertakings imposing unfair prices.