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Journal of Business Law 05/2022

ISBN: 0137-5490
Pages: 64
Publication date: 2022
Place publication: Warszawa
Binding: paperback
Format: A4
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DOI: 10.33226/0137-5490.2022.5.1
JEL: A13, E62

The aim of this article is to determine the extent of dependence/relation between moral norms and public expenditure law established in Poland as well as to determine the impact of this law on the formation of citizenship. These issues have interdisciplinary nature, as they require to take into consideration the point of view (opinions) of lawyers, sociologists and economists. Elaborated diagram by the Authors has been a base for creation the following theses: on the one hand — moral norms, including social rules arising from universal Christian values, should directly and indirectly strongly influence legal regulations in the scope of public expenditure as well as education and citizenship; and on the other hand, and this is a reverse process — public spending may to a certain extend impact the content of moral norms. These theses have been verified on the basis of two pilot researches.

Moreover, the article, due to its aim, analyses the formation of public expenditure law in the context of public choice theory and principal-agent problem as well as verifies social evaluation of the connection between the content of moral norms and selected decisions concerning public expenditure. 

Keywords: morality; public expenditure; public choice; principal-agent problem; Polish society
DOI: 10.33226/0137-5490.2022.5.2
JEL: K21, K23, K33, K34

The application of the selectivity criterion forming a part of the State aid definition under the European Union Law is widely regarded as highly problematic owing to the need to establish a general benchmark in order to establish whether there has been a preferential treatment, anytime when a measure under scrutiny have a scope extending beyond specifically named undertakings. The purpose of this paper is to analyze the existing European case-law and the European Commission's decisions on the selectivity criterion with a particular emphasis on its evolution observable in the newer acquis, and on this basis to verify the hypothesis that the interpretative standard adopted to the assessment of the selectivity criterion for non-tax measures is conceptually inadequate and the direction of changes is incapable of addressing these deficiencies. Within this framework the author formulates a postulate regarding modification of the interpretative standard with an aim to increase transparency and reduce arbitrariness in State aid assessments.

Keywords: EU law; State aid; selectivity; general scheme of the system; relevant market
DOI: 10.33226/0137-5490.2022.5.3
JEL: K22, K41

The article concerns a completely new way of terminating the legal existence of a simple joint-stock company in the corporate law, which is the acquisition of the company's assets by its shareholder. The author positively assesses this institution, however, he formulates two basic reservations. First, he questions the correctness of accepting the creditor's substantiation as a negative premise for the takeover of assets. While substantiation may be sufficient at the level of the application for authorization and at the stage of the creditor's objection, it may be ineffective when it is necessary to assess the grounds for taking over after an objection has been raised, i.e. in the event of a dispute as to the fact. This means depriving the court of the possibility of assessing the evidence, and thus actually reducing the effectiveness of the entire regulation. According to the author, doubts may also be raised by the concept of protecting the interests of other shareholders, who are not entitled to object to the takeover, but only have the right to appeal against the resolution. A more effective solution would be to expressly exclude the possibility of appealing against a resolution only due to questioning the value of the repayment and granting shareholders the right to object.

Keywords: simple joint stock company; dissolution of the company; takeover of the assets
DOI: 10.33226/0137-5490.2022.5.4
JEL: K32

The aim of the article is to show the links between technological development and innovation and climate protection law on the example of promoting energy from RES. Technological development and innovations influence on the need to look for new regulations of climate protection by the lawmaker which enable the evolution of the instruments of climate protection law and achievement of the goals of promoting energy from RES more effectively. On the other hand, legal regulations may at least indirectly affect the technological development and innovation. In view of the tightening of the EU climate policy in order to meet the requirements of achieving a certain share of energy from RES in the final energy consumption, the challenge for the Polish legislator will be to ensure the economic efficiency of investments in installations involving two or more plants generating energy from RES and the implementation of electric energy storage technologies.

Keywords: renewable energy sources; power system; climate policy
DOI: 10.33226/0137-5490.2022.5.5
JEL: K23, K24

The purpose of this article is to explore the rules of the General Data Protection Regulation (GDPR) on the admissibility of automated decision-making included in its art. 22(1). While this provision might come across as clear and unequivocal, a close investigation shows that it contains numerous ambiguities. In particular, it is not clear whether the right not to be subject to a decision based solely on automated processing should be interpreted as a general prohibition or a right to be actively exercised by the data subject, and when a decision is actually solely based on automated processing. The conducted analysis shows that art. 22(1) GDPR lacks precise language, and therefore raises questions over its adequacy for achieving the purposes of the GDPR and the protection actually afforded to data subjects.

Keywords: GDPR; automated decision-making; Art. 22(1) GDPR
DOI: 10.33226/0137-5490.2022.5.6
JEL: K22, K23

On February 1, 2021, entered into force ordinance of the Minister of Finance of 26 November 2020 on the forms of tender offers to subscribe for the sale or exchange of shares in a public company, the detailed procedures of the announcement thereof, and the conditions for acquiring shares pursuant to such tender offers (OJ 2020.2114), which regulates that activities of an investment firm related to the tender offer of shares shall be qualified as rendering investment service: reception and transmission of orders. It is a major inconvenience for some market participants. Moreover this legal regulation raises doubts. This article discusses cohesion between new law and regulations of Polish trading venues. Furthermore author analised the documentation of one of the recent tender offers conducted under German law.

Keywords: tender offer; investment services; MIFID II; capital market; public company
DOI: 10.33226/0137-5490.2022.5.7
JEL: K23

The issue of the statute of limitations on the possibility of the Financial Supervision Authority imposing an administrative fine on a supervised financial institution is a matter of particular interest and doubt in the practice of the financial markets. The statute of limitations for the possibility of imposing an administrative fine under the Act on Trading in Financial Instruments of 29 July 2005 was analysed by the Provincial Administrative Court in Warsaw in its judgment of 8 October 2020 (Case No: VI SA/Wa 308/20), where the court — as it seems — did not see the principles of the institution of limitation, and thus opted against the possibility of applying this institution. In the author's opinion, this judgment deserves criticism, to which this gloss will be devoted.

Keywords: statute of limitations; administrative liability; Financial Supervision Authority; administrative pecuniary penalty; administrative sanction; impossibility to impose an administrative sanction; follow-up supervision measures; COVID-19 Act
DOI: 10.33226/0137-5490.2022.5.7
JEL: K23

The issue of the statute of limitations on the possibility of the Financial Supervision Authority imposing an administrative fine on a supervised financial institution is a matter of particular interest and doubt in the practice of the financial markets. The statute of limitations for the possibility of imposing an administrative fine under the Act on Trading in Financial Instruments of 29 July 2005 was analysed by the Provincial Administrative Court in Warsaw in its judgment of 8 October 2020 (Case No: VI SA/Wa 308/20), where the court — as it seems — did not see the principles of the institution of limitation, and thus opted against the possibility of applying this institution. In the author's opinion, this judgment deserves criticism, to which this gloss will be devoted.

Keywords: statute of limitations; administrative liability; Financial Supervision Authority; administrative pecuniary penalty; administrative sanction; impossibility to impose an administrative sanction; follow-up supervision measures; COVID-19 Act
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