Przegląd Ustawodawstwa Gospodarczego nr 5/2013
Rok wydania: 2013
Miejsce wydania: Warszawa
PRZEGLĄD USTAWODAWSTWA GOSPODARCZEGO 5/2013
Aleksander Lipiński, Uniwersytet Śląski
Z problematyki właściwości rzeczowej organów administracji geologicznej
Some problems of the competence of the geological administrative authorities
According to the Act of 11 June 2011 – Geological and Mining Act, the authorities that are competent for geology, are the heads of districts, marshals of voivodeships and the Minister of the Environment. The rules determining their competences are very unclear and co called “negative competence disputes” (negative conflicts) are not rare. The above conflicts are judged by the Chief Administrative Court. Unfortunately, the problem is that its judgements in the same kind of disputes are not the same.
Monika Przybylska, Politechnika Opolska
Sytuacja prawna przedsiębiorcy w sprawach regulacyjnych oraz antymonopolowych na etapie postępowania weryfikacyjnego
Legal position of enterprises under regulatory and competition laws at the judicial control level
The article is focused on Polish model of judicial control over the proceedings before the President of the Office of Competition and Consumer Protection, the President of the Office of Electronic Communications, the President of the Energy Regulatory Office and the President of the Office of Railways Transport. Decisions taken by mentioned administrative authorities are controlled by the Court of Competition and Consumers Protection (the CCP Court), not by the Administrative courts. Until 2011 (before amended the Code of Civil Procedure) the CCP Court did not have legal basis to exercise sufficient control over possible breach of procedural rules by the President of the Office of Competition and Consumer Protection, the President of the Office of Electronic Communications, the President of the Energy Regulatory Office and the President of the Office of Railways Transport. Nowadays the situation is clearer and the article demonstrates it.
The article proves that the general competences of the CCP Court are relevant to protect enterprises’ rights. However, the article shows unquestionable loopholes which can breach these rights. Moreover the article underlines advantages of Administrative courts (de lege ferenda comments). Taking everything into account the author argues that the CCP Court should hold judicial control over decision taken by the President Office of Competition and Consumer Protection, the President of the Office of Electronic Communications, the President of the Energy Regulatory Office and the President of the Office of Railways Transport.
Monika Tenenbaum-Kulig, Uniwersytet Wrocławski
Problem odpowiedzialności solidarnej inwestora i wykonawcy za zapłatę wynagrodzenia podwykonawcy tworzącemu konstrukcje tymczasowe na podstawie własnego projektu
Investor’s and contractor’s joint and several liability for the payment to subcontractor, who builds temporary construction based on his own projects
The subject of this article is to analyse potential joint and several liability of investor and contractor or leading contractor for the payment to subcontractor who builds various temporary construction and is also responsible for this construction’s design. We are considering the situation where temporary constructions are necessary to deliver the final object of the construction contract only. It is relevant especially for high budget investments e.g. transport infrastructure investments, where identification of responsible parties is very important.
There are many issues and problems which need to be considered. First problem relates to types of contracts signed between contractor or leading contractor and subcontractor which determines investor’s joint and several liability. Author drew a conclusion that joint and several liability applies to obligation to pay a remuneration under construction work agreement and specific task contract, subject to a result of the subcontractor’s work being a part of delivering the final object of contractor’s and investor’s contract. Author pointed out that discussed temporary constructions can be qualified as temporary building and can be therefore treated as the subject matter of the construction work agreement.
That opinion doesn’t infringe requirement of art. 647¹ § 5 Civil Code where the result of subcontractor’s consideration is a part of contractor’s consideration of construction work agreement between contractor and investor, despite the fact that temporary constructions are removed prior the delivery of the final object of the construction contract.
In the light of the Civil Code regulations is not also an obstacle that temporary constructions are often designed and built by subcontractor. In further analysis author reject a possibility of qualifying the contract of building the above temporary construction as agreement to deliver goods which are necessary to fulfil the contract. Within the meaning of the art 647¹ § 5 Civil Code supply of goods agreement is not subcontractor’s contract therefore joint and several liability does not apply.
In a conclusion of the article states that, if the requirement of an effective conclusion of the construction work agreement with subcontractor are met especially there is investor’s assent to conclude the contract (certainly or implicitly), it will be possible to allocate the joint and several liability to investor together with contractor to pay the remuneration due to subcontractor (art.647¹ § 5 Civil Code).
It is also important than any modification of the above principle will be ineffective due to existing regulation of art 647¹ Civil Code.
Krystyna Kowalik-Bańczyk, Instytut Nauk Prawnych PAN
Programy łagodzenia kar (leniency) w Unii Europejskiej i w Polsce a zasada pewności prawa
Leniency programs in the European Union and in Poland in light of the principle of legal certainty
The aim of this text is an analysis of leniency programs in the European Union and in Poland in light of the principle of legality. This principle should guarantee the legal security of entities active either on the territory of Poland or within the scope of European Union. The practice of introducing the leniency programs in form of acts that are not legal acts and thus are not formally binding might infringe art. 7 of the European Convention on Human Rights and Fundamental Freedoms and art. 7 of the Constitution of the Republic of Poland. Such acts can be easily changed and they do not have any legal value in front of the courts. Yet it is broadly accepted that changes to antitrust liability of undertakings are introduced in this manner both in the EU and in Poland because the leniency programs are an efficient tool in fighting the cartels. Therefore the aim of this text is to consider the possible improvements in the legislative policy towards leniency programs and not the suppression of such programs. The main demand of change is to start introducing leniency programs in the form of legal acts.
Z PRAKTYKI GOSPODARCZEJ
Tomasz Szczurowski, Uniwersytet Kardynała Stefana Wyszyńskiego w Warszawie
Doręczenia procesowe dla przedsiębiorcy będącego osobą fizyczną a zakres danych udostępniony przez CEIDG
Delivery of pleading for natural person engaged in business activity vs scope of data, made available by Central Register and Information on Economic Activity (CEIDG)
This article describes problems connecting with delivery of pleading for natural person engaged in business activity. Author writes that rules of delivery for single entrepreneurships included in the Code of Civil Procedure are difficult to observe. They order to deliver pleadings in a domicile, however virtually all business partners do not know place of residence other part of a contact. This rules are also not synchronize with principles include in the Act on Freedom of Economic Activity which treats domicile as non-public information and it is not available in the Central Register.
Norbert Krystian Gesek
Rzeczoznawca majątkowy jako zawód zaufania publicznego
Certified property appraiser as a profession of public trust
The profession of a certified property appraiser was legitimized by the Property Management Act. The author points to the criteria determining it as a profession of public trust. He emphasizes the relevance of the professional ethics as well as supporting professional qualifications with the state’s authority. Furthermore, he discusses the notion of a profession of public trust adducing various opinions on the subject matter presented in subject literature, and he also deal with the question of the lack of its legal definition. There is also signalized the issue of assessment of the appraisal study being the result of property appraiser’s work.
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