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Przegląd Ustawodawstwa Gospodarczego Nr 11/2008

ISSN: 0137-5490
Liczba stron: 32
Rok wydania: 2008
Miejsce wydania: Warszawa
Oprawa: miękka
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Anna Walaszek-Pyzioł

Kilka refleksji na temat prawnych metod liberalizacji rynku energii elektrycznej

Some reflections on legal methods of liberalisation on electric energy market
The liberalisation of energy market is a long-term process and as previous experiences showed it proceeds with defiances.The grid entities are contrary to the liberalisation because it invades their privilaged postion resulting from "natural monopoly". The respective member countries have not so strictly resisted to these defiances so far, what can be seen indirectly in the common legal regulations related to internal market of electric energy. (mainly in currently binding: 2003/54/EU Directive, as well as the previous one: 96/92/EU Directive). Currently binding 2003/54/EU Directive includes many "soft" regulations (mainly in a scope of "unbundling"), as well as it is often innacurrate (for example in relation to realization of TPA rule). The above-mentioned aspects have been transferred to national legislations, what is seen in fundamental differences between national regulations. (we should keep in mind that the directive are binding in aspect of purpose which should be reached, and the EU member countries are free in choosing the methods used in order to realize the purpose.) Morover some countries have not implemented the above-mentioned Directive in a correct way. (for example in case of Poland it relates to the regulations concerning the President of URE status). Estimating the legal solutions proposed by the European Commission in draft of amendments to the 2003/54/ EU Directive from above-mentioned point of view, generally it should be stated that they are more radical than previously. Morover the proposal is more precise and more concrete in comparison to national regulations and thanks to this aspect the EU member countries shall have smaller scope of freedom in implementation the Directive regulations to the national legislation.

Edyta Rutkowska
Małgorzata Sieradzka

Ochrona konsumenta bankowych usług kredytowych przed nieuczciwymi praktykami rynkowymi banków na tle dyrektywy 2005/29/WE o nieuczciwych praktykach rynkowych

The protection of consumer using the credit services against bank unfair market practices on the ground of Directive 2005/29/EU on unfair market practices

On the 20 December 2007 the Act on unfair market practice dated 23 August 2007 came into force ("Dziennik Ustaw" [Journal of Laws], no. 171, item 1206, and further); this Act constitutes an implementation of Directive 2005/29/WE passed by the European Parliament and the Council and concerns unfair market practice used by enterprises towards the consumers on the internal market ("Dziennik Urzędowy" [Official Journal], L 149 of 11 June 2005). It strengthens the position of a consumer on the market, including the banking services market, and envisages almost revolutionary solutions regarding the investigation of the consumer claims that were lodged as a result of unfair market practice used by entrepreneurs, including banks. The protection of the consumer against the unfair market practice can be applied also to the transactions between the banks and the consumers within the scope of rendering credit services. Banks as the enterprises that render the banking services can also use the practices infringing on the collective interests of the consumers, including the unfair market practice; therefore, this study presents examples of unfair market practice used by banks towards borrowers. Directive 2005/29/WE introduces a complex regulation of the unfair market practice. It aims at setting out unified legal regulations regarding the ways of determining particular practices as unfair and harmful to the economic interests of the consumers. Thus the economic interest of the consumer is the object of the protection under the directive on unfair market practice. Both Directive 2005/29/WE, and the Act on unfair market practice (Article 3) is based on the general prohibition of unfair market practice that occur exclusively in the relations between the business and consumers (Business to Consumer - B2C). The objective of the Act on unfair market practice is to assure a high level of consumer protection and to build up the trust of the consumer in the existing legal regulations through protecting the right to file individual claims against unfair market practice. The protection of the consumer has been extended through allowing the claims: the consumer may demand that the practice be relinquished, the effects of the practice removed, relevant statements issued once or more times in appropriate form, or the damage repaired on general principles; in particular the consumer may demand that the agreement should be rescinded with the obligation to mutual return of the payments while the costs of acquiring the product be returned by the entrepreneur; the claims can be also settled by adjudging relevant amount of money for a particular social purpose related to supporting the Polish culture, the protection of national heritage, or the consumer protection.

Filip Grzegorczyk

Niedoskonałość dyrektyw jako aktów prawa pochodnego

Disadvantages of directives as a source of European Community secondary legislation
Art. 249 of the Treaty establishing European Community enumerates sources of the so-called secondary legislation. One of the most important source are directives. The legal idea of directives is unique: they obligate EU Member States to achieve goals set in directives in the process of the implementation. This article focuses on problems concerning functioning of the directives both in European and national legal systems. Legal grounds of the directives, their language and influence on national legal systems, flexibility of EU legislative policy, are the main issues discussed in the paper. Directives of a minimum standard are shown as the example of the worst type of the EC secondary legislation. The conclusion is that directives are unable to work as an efficient instrument of the approximation of the legal systems within European Union. The Author suggests that European Union needs more suitable legal instruments to be able to promote advanced economic and legal integration.

Mariusz Fras

Regulacja prawna umowy ubezpieczenia w Portugalii

The Insurance Contract Law In Portugal
There are no general laws dealing specifically with insurance contracts and applying to all classes of insurance in Portugal. Among the applicable regulations in this respect, the 1888 Commercial Code should be mentioned in the first place, as an act providing a general legal framework for the author's comments. It is supplemented by numerous decrees establishing specific provisions on chosen groups of issues. The author makes an attempt to briefly and consistently present the most characteristic features of the Portuguese insurance law. The subject matter becomes particularly complex in the field of common provisions of insurance contracts, which have been listed in the decree-law 176/95 on life insurance. Detailed information like these will not however be subject to thorough explanation, as it could disturb the expected effect this article is to achieve - introduction of basic knowledge of most essential legal institutions of the insurance contract drawn up in accordance with the laws of Portugal.

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