Journal of Business Law 07/2024

This publication is intended to indicate the need for structural and substantive changes to the Act – Entrepreneurs Law, which has already been in force for six years. This concerns, first of all, the abandonment of the regulation within this Law of the issue of control of entrepreneurs and lawmaking for the needs of entrepreneurs. Both of these issues are only partially related to entrepreneurs' rights, and mainly concern the implementation of functions and tasks of state bodies. Moreover, it seems appropriate to make appropriate adjustments to the legal status of an entrepreneur and to extend this status to (family) farmers, as well as to consider changes concerning the legal features of economic activity. Both the concept of an entrepreneur and economic activity should be appropriately synchronised with analogous concepts located in the content of other laws.

The enactment of the Act of 20 July 2017 – Water Law has caused far-reaching changes in the concept of rainwater and snowmelt management. By making a simple legislative move to exclude rainwater and snowmelt from the legal definition of wastewater, the legislator has caused serious consequences, the vast majority of which were not anticipated at all. Assuming that rainwater and snowmelt are no longer wastewater, the legislator did not at the same time define what they are then de lege lata. Determining the legal status of rainwater and snowmelt, however, is not just a theoretical and legal problem, for the indication of this status entails a number of legal consequences for practice, such as in determining whether and what entity is obliged to discharge and collect such water, as well as in the area of fees for the discharge of rainwater and snowmelt and the nature of these fees. Therefore, it is justified to undertake considerations aimed at determining de lege lata what the status of rainwater and snowmelt is and how it determines the possible obligations of certain legal entities. In particular, the position of the municipality and the water and sewage company will be analysed.

This article is devoted to the differentiation of entrepreneurs in the field of private law. The indicated issue, although playing an increasingly important role in the application of the law and in the process of its individualisation, has not been properly highlighted in the Civil Code. This causes interpretation problems and leads to an increase in various unfavourable phenomena in trade. The article attempts to systematise and classify the differentiation of entrepreneurs on the basis of private law, to determine its legal consequences, as well as to set directions for future regulation, which should take into account the balance of public and legal values to a greater extent than before.

Recently, the right of retention (ius retentionis) has undergone a kind of renaissance, which is due to the nature of disputes arising against the background of credit agreements linked to foreign currency (especially CHF) – indexed and denominated credit agreements. The filing of a plea of retention by the party is supposed to result in the withholding of the benefits received from the borrowers until the borrowers either offer to return the benefits received from the banks under the credit agreements or secure claims for their return. However, in the case of reciprocal monetary benefits, the right of retention does not apply, as the benefits of both parties are of a single nature and therefore they are entitled to a more far-reaching right, namely the possibility to make a declaration of set-off. This applies in particular to the mutual benefits of the parties under an invalid credit agreement, including those linked to foreign currency (on the assumption that the credit agreement is a reciprocal agreement). This is where the consumer protection aspect of Directive 93/13, which has been very strongly emphasised in the CJEU's case law, comes in.

The research purpose of the article is to determine the scope of the Supreme Audit Office's access to information covered by banking secrecy. The literature on the subject is dominated by the view that the Supreme Audit Office has wide access to the abovementioned information. A different view will be presented in this article. The dogmatic analysis of the provisions leads to the conclusion that the bank is obliged to provide the President of the Supreme Audit Office with information covered by banking secrecy, in a situation where the request of the President of the Supreme Audit Office to provide information covered by banking secrecy is related to an inspection procedure concerning an entity other than the bank, but only to the extent necessary to carry out this control. In this regard, each bank is obliged to provide information covered by banking secrecy. A bank operating as a joint stock company, whose minority shareholder is the State Treasury, solely because the State Treasury is involved in its share capital cannot be fully subject to the control of the Supreme Audit Office, which would entail providing the President of the Supreme Audit Office with information covered by banking secrecy regarding all his clients. Bank whose minority shareholder is the State Treasury will be required to provide, at the request of the President of the Supreme Audit Office, information covered by banking secrecy only to the extent that it is subject to the control of the Supreme Audit Office, i.e. to the extent to which it uses state or municipal property or funds. The discussed scientific problem is also of practical importance.

This article focuses on a dogmatic-legal analysis aimed at solving the research problem of whether it is permissible to provide compensation to participants for their involvement in a clinical trial in the EU. In 2023, Polish law abolished the general ban on transferring benefits to clinical trial participants. Currently, this issue is regulated exclusively by EU law. It doesn't contain a general prohibition on paying remuneration to participants for participating in a clinical trial, unless they belong to vulnerable populations and unless it constitutes undue financial influence when granting an informed consent. EU soft law confirms the admissibility of transferring remuneration, indicating that it may be in cash or in kind. Compensation may be conditional, including completion of a specific stage of a clinical trial. One cannot demand a refund of the remuneration due from a participant because of the withdrawal of consent.

The article aimed to analyse the judgment of the Court of Appeal in Warsaw, which the Court found under Art. 83 § 1 of the Civil Code that it is possible to change the parties to a legal transaction, thus leading to a situation in which the company's shareholders and not the company as a separate legal entity become a party to a specific contract. In the author's opinion, this position is incorrect because Art. 83 § 1 of the Civil Code refers only to the objective aspects of appearance, i.e. a situation in which the Court classifies a legal act as another type that the parties originally indicated in the simulated act.

On June 6, 2024, the 5th edition of the Energy Forum of Science and Economy, a cyclical conference organized by the Mercatus et Civis Foundation, the Association of Consumer Advocates and the Institute of Legal Sciences of the Polish Academy of Sciences, took place in the Mirror Hall of the Staszic Palace in Warsaw. The main theme of this year's edition of the Forum, under the media patronage of the "Business Law Journal", was the diversification of technologies and the security of energy recipients.