Journal of Business Law 06/2024

The article concerns the obligation to transmit certain television programs by telecommunications undertakings, commonly referred to as "must carry". The aim of the study is to assess the scope and method of implementing this obligation in connection with the attempt to change it in the government bill. The contentious issues surrounding this obligation center on the scope and nature of the programs covered by compulsory transmission and the inclusion of these programs in the program guide and on the TV remote control. The discussion regarding this project and its abandonment lead to the formulation of proposals to adapt the transmission obligation established in 2011 to the purposes of this institution and the conditions of its application resulting from EU law, the experience of other EU countries and national practice, as well as the conditions of the Polish television market.

The purpose of this article is to present and discuss the newly introduced amendments to the Banking Law regarding the institution of outsourcing in banking activity. Both the doctrine of the subject, regulations of the European Union law, as well as many years of experience and criticism in the application of the existing regulations in the banking sector have mobilised the drafter to present and then enact the amendment. The issue of the regulation of banking outsourcing is significant not only from the point of view of legal theory, but also – or perhaps above all – from the point of view of legal practice. The author gives a generally positive assessment of the amendments introduced. At the same time, their interpretation and manner of application are presented. Nevertheless, with regard to some of them I formulate critical remarks and propose further de lege ferenda changes. The article uses two main research methods. Firstly, the dogmatic method consisting in the interpretation of legal provisions, including through historical and legal-comparative interpretation, and, secondly, the method of economic analysis of law, because the issue of banking outsourcing is strongly related to economic and management sciences.

November 28, 2023 marks twenty years since the entry into force of the Act of October 28, 2002 on the liability of collective entities for acts prohibited under penalty. This anniversary is a good opportunity to assess the functioning of this Act in the Polish legal system over the past 20 years, based on available statistical data. The starting point for the considerations is the thesis that this Act has no practical significance and is only a facade instrument. The analysis carried out in the article confirms this thesis – the 2002 Act is not de facto applied. Therefore, the article proposes changing the appropriate legal solutions, indicating the direction of the desired modifications.

The purpose of this article is to present the relation between the Actio Pauliana undertaken by the creditor and the ineffectiveness of a juridical act provided for in bankruptcy law. The analysis shows that the ineffectiveness of a juridical act towards the bankruptcy estate differs in meaning from the ineffectiveness towards the creditor, primarily because in the latter case the purpose of the ineffectiveness is to protect a specific receivable. This inference and the realization that the object of a juridical act carried out to the creditors' detriment is not included in the bankruptcy estate allow us to conclude that the creditor is entitled to bring and support the Actio Pauliana also after the declaration of the debtor's bankruptcy. Regardless of this solution, the applicable law prioritizes the protection of all creditors over the protection of one of them. Recognizing the bankrupt's juridical act as ineffective towards the bankruptcy estate (by virtue of law or as a result of a ruling) results in treating the object of the challenged juridical act as part of the bankruptcy estate. In this case, the creditor can no longer file the Actio Pauliana, and if he is in possession of a final judgment obtained following the said complaint, he cannot use it in enforcement proceedings conducted in his favour.

It has become accepted in existing practice that the principal instrument for the control of concentrations with a Community dimension is the mechanism provided for in Regulation 2004/139/EC. Its essence is the EC's prior control of concentrations assessed from the perspective of a significant impediment of effective competition in the common market or a substantial part of it. In contrast, concentrations which did not exceed the quantitative thresholds stipulated under EU or national law generally remained outside the control system. However, a certain change of approach in this respect has been introduced in the judgment of the Court of Justice of the European Union in case C-449/21 Towercast (ECLI:EU:C:2023:207). It confirms the NCAs' capacity to apply Article 102 TFEU when assessing concentrations that lack a 'community' or even 'national' character under ex post control. However, this issue may raise certain doubts, as past practice has indicated that the provisions on the prohibition of abuse of a dominant position for the assessment of a given concentration were applied incidentally and concerned a different legal context. Accordingly, the objective of this paper is to clarify the mutual relations between the provisions arising from the Regulation and the TFEU, including, in particular, their legal nature, functions, objectives and effects.

The subject of this study is the problem of admissibility of holding property interests in organizational units dedicated to providing legal assistance by persons who do not have the right to practice one of the legal professions. Bearing in mind the solutions adopted in Polish and German law, an answer will also be given to the question of whether restrictions relating to the prohibition of participation of persons who do not have the right to perform the professional activity of providing legal assistance may constitute a violation of the freedoms of the internal market, including, in particular, the freedoms of capital transfer, provision of services and entrepreneurship. The above issue is in connection with a preliminary question referred by the Bavarian Bar Court to the Court of Justice of the European Union in 2023, concerning a possible violation of European law through the application of the prohibition on ownership of third-party shares within the structures for the practice of the legal profession.

In this commented resolution, the Supreme Administrative Court had to revolve a legal issue regarding the temporal scope of application of the provision of Art. 30 section 1 point 6 of the Act on special rules for eliminating the legal effects of reprivatization decisions regarding Warsaw real estate, issued in violation of the law. This study assumes, unlike has been said in the resolution, that the circumstances specified in Art. 30 section 1 point 6 of the Reprivatization Act may constitute grounds for repealing the reprivatization decision if they occurred after the date of entry into force of this Act. According to the glossary, this view is supported by the theoretical structure of the administrative legal relationship used in the judicial practice of administrative courts, as well as the sanctioning nature of administrative decisions issued on the basis of Art. 30 section 1 point 6 of the Reprivatization Act.