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Journal of Business Law 05/2021

ISBN: 0137-5490
Pages: 72
Publication date: 2021
Place publication: Warszawa
Binding: paperback
Format: A4
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DOI: 10.33226/0137-5490.2021.5.1
JEL: K49

Corporate groups regardless of their structure are a common phenomenon in conducting business activity, therefore there was a need to address the problem of insolvency of such groups by legislators. The following paper presents regulations regarding corporate insolvency provided in both supranational acts (UNCITRAL Legislative Guide on Insolvency and EU Regulation 2015/848 on insolvency proceeding), as well as in national laws of four EU Member States — Italy, the Netherlands, Poland and Portugal. As shown in the study, each of the above mentioned countries allows conducting insolvency proceedings with respect to corporate groups, albeit with some differences as to its basis (legal acts or legal practise), scope (coordination, procedural consolidation or substantial consolidation) and implementation (court jurisdiction and appointment of supervisory judges or insolvency practitioners). In the paper we compare the regulations adopted by the states in question and point out some obstacles for effective proceedings. Despite some differences, we find most of the solutions similar as they allow consolidation or coordination of cases, and they are in line with the European law on insolvency.

Keywords: corporate insolvency; group insolvency in Italy; group insolvency in the Netherlands; group insolvency in Poland; group insolvency in Portugal
DOI: 10.33226/0137-5490.2021.5.2
JEL: K2

Municipal waste management for many years has remained in the center of attention of the European Commission. The purpose of this paper is to present the concept of circular economy in European legislation, which defines key issues for detailed policies and action plans as well as provides guidelines for the Member States showing, at the same time, the way for economy transformation. Over the last five years, the European Commission has issued several significant documents discussing many commendable policies. The main objective of these policies is to prevent the creation of waste by solving the issue of waste "at source" and enabling the maximum possible recycling of raw materials and energy. At the same time, these policies pose a tough challenge for many EU Member States in terms of implementing new environmental protection laws. The analysis of legislation in this field will bring an answer to the question whether the European Union may soon become a "Green Economy" leader.

Keywords: environment; order; economy; regulation; waste
DOI: 10.33226/0137-5490.2021.5.3
JEL: G28, K23

In recent years, the domestic market for investment funds has been witnessing a trend towards consolidation of this market, which has its specific private and public law aspects. The most important element within this process is the PFSA's power to control the capital flows occurring within a given financial institution, i.e. a given investment fund company. The main idea of this regulation is to prevent a takeover of control over a given TFI and to prevent gaining significant influence over TFI management by shareholders who do not ensure correct functioning of the TFI and do not provide stability and security for its further activity. In the content of this part of the publication, the authors will refer in particular to the issue of the decision prohibiting the exercise of voting rights from TFI shares or the prohibition of exercising the rights of the parent company TFI, and will also indicate the public law consequences of issuing such a decision by the Polish Financial Supervision Authority, also referring to private law aspects.

Keywords: supervision; Financial Supervision Authority; prohibition to exercise voting rights; investment fund manager; investment fund; corporate effects
DOI: 10.33226/0137-5490.2021.5.4
JEL: K34, H24, H32, H71

The Act on supporting new investments, in force since mid-2018, and amended several times, has significantly changed the conditions for supporting investors, in comparison to investments carried out in special economic zones. Both forms of support can be used concurrently, even in relation to the same entrepreneur who invests in different areas, i.e. in a special economic zone and in another legally separated area. The purpose of this article is to analyze and assessed legal regulations which determine the issuance of a decision on support and the application of the support instrument in the form of tax exemption of income obtained from a new investment. It has been shown that the joint fulfilment of two conditions allows for the exemption from taxation of income generated from a new investment, i.e. conducting business activity specified in the decision on support in the area indicated in this decision. The reservation that the value of the tax exemption may not exceed the limit of public aid due to this taxpayer is closely related to them. By identifying the above conditions, it was established that the tax exemption is objective, not subjective, as it does not cover other income earned by the taxpayer. The adoption by the legislator of a broad definition of the term "new investment" means that completely new investments and investments consisting in the expansion or modernization of already existing fixed assets belonging to a given entrepreneur should be equally supported.

Keywords: new investment; tax exemption; entrepreneur; public aid; separated area
DOI: 10.33226/0137-5490.2021.5.5
JEL: K38

The subject of considerations in this article is the analysis of the case law of administrative courts in terms of compliance with interpretative directives arising from Article 22 of the Polish Constitution: principle of strict and literal interpretation of restrictions on economic freedom and in dubio pro libertate principle. As part of the analysis, rulings on four issues are examined: how to calculate the maximum time of an administrative body's control at an entrepreneur, the appropriate VAT rate for take-away fast-food, the admissibility of treating parcel lockers as a building facility and constitutionality of anti-epidemic restrictions. The aim of the article is to present constitutional standard regarding economic freedom and its role in the jurisprudence.

Keywords: economic freedom; in dubio pro libertate; linguistic interpretation; VAT; parcel locker; epidemic
DOI: 10.33226/0137-5490.2021.5.6
JEL: K15

The broad definition of the document in Article 773 of the Civil Code is of a framework nature, with a systemic scope. Every information carrier that allows to get acquainted with its content is a document, although many different forms of it can be found on the market at the same time. The article discusses the essence of the regulation of Article 773 of the Civil Code, trying to clarify the disputed issues against the background of the existing acquis of doctrine and judicature. The parallel aim of the study is to draw attention to the fact that other premises determine the existence of the document and others determine that the document is correct, valid or complete.

Keywords: document; e-document; durable medium; information; copy
DOI: 10.33226/0137-5490.2021.5.7
JEL: K22, K23, K34

judgment of the Supreme Administrative Court of 27 April 2020, I FSK 491/20

The judgment of the Supreme Administrative Court concerns the issue of control of the application of the blockade of the entrepreneur's bank account by the tax administration due to the possibility of its use for tax frauds. The Court's view that the premises of a short account blockade are subject to court-administrative control is correct. This results from the pro-constitutional interpretation of Article 119zv § 1 and Article 119zw § 1 of the Tax Ordinance. However, the position of the Court that the control of the premises of a short blockade is possible only as a result of an appeal against the decision of the Head of The National Fiscal Administration (KAS) on the extension of the blockade of the entrepreneur's bank account for a fixed period cannot be approved.

Keywords: bank account blocking; tax ordinance; administrative court proceedings
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