Przegląd Ustawodawstwa Gospodarczego nr 10/2013

PRZEGLĄD USTAWODAWSTWA GOSPODARCZEGO 10/2013

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Jerzy Rotko, Instytut Nauk Prawnych PAN
Pozwolenie wodnoprawne na wprowadzanie ścieków przemysłowych do urządzeń kanalizacyjnych

Summary

The licence on the introduction of industrial waste water into

In the article I focus on legal institution provided in article 122 (1) (10) of the act Water Law – a licence on the introduction of industrial waste water containing substances particularly harmful for the aquatic environment into sewers. Such permission is an instrument of administrative verification preliminary, serving the protection of human life and health, the environment as well as building construction and technical equipment sewers. At the beginning I indicate its legislative history and show the recitals of its introduction, under european law. The place of that licence in environmental law is described, taking into account the rules of three acts: Water Law, Law on Environmental Protection and Act on Collective Water Supply and Collective Waste Water Disposal. It was considered in particular, whether such permission may be counted to the system of emission licences. It have been analysed scope and the obligation to obtain the licence. Then the subject of remarks has been done rules of setting the conditions for the introduction of such industrial effluent into sewers, taking into account the problematic procedures provided for rules of the regulation of the minister for construction of 14 july 2006. It has been proved that the existing rules of licences on the introduction of industrial waste water containing substances particularly harmful for the aquatic environment are largely incoherent and an overly strict. In the key points administrative rules are incompatible with the Polish Constitution. It was proposed to remove licences from existing legal order.

Anna Zalcewicz, Europejska Wyższa Szkoła Prawa i Administracji w Warszawie
Problem poprawności implementacji art. 52 ust. 3 dyrektywy PSD do polskiego porządku prawnego (opłata tzw. surcharge, zniżka za korzystanie z instrumentu płatniczego)

Summary

The problem of the correctness of the implementation of Art. 52. 3 of the PSD Directive into Polish law (surcharge and reduction for the use of a given payment instrument)

The principal, general, conclusion that is formulated after analysis of Polish legal solutions is that the legislator implemented into national law the provisions on the issue of the charge (surcharge) and the right to offer a reduction for the use of a given payment instrument in a rather nonchalant manner, which means that many questions of interpretation arise in this regard. This creates the demand that, first, it be clearly set forth in law that the payment service provider shall not prevent the payee from requesting to offer him a reduction for the use of a given payment instrument. Secondly, it is required that the provisions determining the conditions under which the payer may request a payment, the so-called surcharge, from a payee be worded in no uncertain terms.
This paper presents a number of concerns that arise in relation to the transposition of Art. 52 3 of the PSD Directive to Polish law, and formulates proposals de lege lata and de lege ferenda in this regard.

Róża Miklaszewska, Szkoła Główna Handlowa
Polskie prawodawstwo w zakresie odnawialnych źródeł energii

Summary

Polish legislation on renewable energy sources

Polish legislation on renewable energy is becoming more and more complete. The pace of development of energy law in accordance to the renewable sources of energy is quite significant. However, we can still observe that there is a lot to do in this field. The aim of this paper is to present the condition of Polish law according to the renewable sources of energy and a bit of history of Polish legislation in this context. Polish law is determined by European Union law and international public law. All the work that have been done in this area were related to the Polish membership of European Union and with its international obligations. My analysis centered mainly around ‘Polish Energy Policy till 2030’ and an ongoing work on a new act on renewable energy sources. The new law is extremely necessary not only for the government or local government but mainly for the investors. Prolonged work on drafting the new law on renewable energy causes a poor investment conditions, which discourages those who would like to invest in new renewable energy sources.

KONSULTACJE

Aleksander Maziarz, Akademia Leona Koźmińskiego
Kartele kryzysowe w unijnym prawie konkurencji

Summary

Cartels crisis in UE competition law

In the times of crisis there are many temptations to allow crisis cartels but their outcomes are not unequivocal. In order to cure difficult market situation by such cartels companies agree to limit their production or fix prices. On the other hand limited production means that mechanism of competition is distorted on the market and customers will be deprived of such benefits like low prices or high quality products. But on the other hand when there is no recession in a given sector of the economy companies tend to invest and compete with each other by lowering their prices. Such not clear situation means that European competition law should determine which of the crisis cartels are allowed and which are not. The aim of this article is to analyze how the European law treats crisis cartels. There will be presented major decision of the European Commission, judgments of EU courts and views of the doctrine on the matter of crisis cartels.

Małgorzta Sieradzka, Uczelnia Łazarskiego w Warszawie
Zakres kontraktowej swobody stron stosunku prawnego nawiązanego wskutek udzielenia zamówienia publicznego

Summary

The scope of the parties’ freedom of contract in public procurement contracts

The Act on the Public Procurement Law limits freedom of contract of the parties, which have established a legal relation as a result of the award of public procurement. The limitations refer both to freedom to select a contractor and freedom to create a contractual relationship. It should be pointed out that the parties’ freedom of contract is limited on various stages of the public procurement procedure. Taking into account the purpose of public procurement, it is the awarding entity that decides about the object of the contract and the manner of selecting a contractor.

The question therefore arises about the scope of freedom of contract of the parties, which have created a legal relation by the award of a public contract. The practice of using public procurement shows that the awarding entity may attempt to delegate responsibilities to a contractor and thus impose certain provisions in the model contract. The contractor may refrain from submitting a tender on such terms, but when opting for the submission of a tender they must take into consideration the extended scope of the risk assumed and should secure their interests calculating the offer price. No matter how great a risk is assigned to the contractor in the contract, it is the contractor who assesses the risks and recognizes the additional cost of these risks in the tender price.