Journal of Business Law 09/2024

The digital revolution, apart from its particular impact on the economy, also generated specific competition problems and influenced the shape of competition rules. In the article I take a look at these changes from the perspective of small business. I refer to current changes in the EU competition law and to new legal acts concerning digital markets that pursue, to some extent, similar objectives to competition law (DMA). On this basis, I present how the challenges of digital economy marked by platformisation and the growing disparity between the big hi-tech companies and the rest of market players strengthened the tendency to treat SMEs favorably. At the same time, I make references to specific examples in legal provisions and case law showing that the contemporary EU competition law's favorable attitude towards smaller market players is not really a drastic change of rules but an effect of evolution of tendencies with strong roots in the pre-digital past.

The article is devoted to the role of a branch of a foreign business as a connecting factor for the purposes of determining specific jurisdiction of a court and the applicable law. In particular, the authors analyse the concept of "branch, agency or any other establishment" in light of the case law of the Court of Justice of the European Union. It is explained that the concept is functionally understood by the Court as an "extension" of the parent entity's activities constituting the "appearance of permanency". The analogous basis of jurisdiction provided by the provisions of the Code of Civil Procedure is also discussed. Moreover, the authors analyse the role of the secondary place of business for determining the law applicable to the contract under the relevant conflict of law rules, i.e. the Private International Law Act of 1965, the Rome Convention of 1980 and the Rome I Regulation. In particular, the question of the link that the contract must have with the operations of that secondary place of business is discussed.

The purpose of the publication is to draw attention to the lack of a clear and complete normative definition of a nuclear power plant and its poor fit with existing law. Such a nuclear power plant, pursuant to the real estate regulations, should be seen as a public purpose investment. At the same time, due to the content of the provisions of the Act of 2011 on the preparation and realisation of investments in nuclear power facilities and accompanying investments, this investment should also be combined with the objectives of the aforementioned Act. Moreover, the objectives set for the nuclear power plant in the context of the Atomic Law, which formulates the definition of such facilities ('enterprises'), are not without significance. Taking the above into account, it seems appropriate to consider the nuclear power plant not only as an investment, but also as an enterprise – in the property and functional sense, in order to identify and concretise the public interest for which the investment is made and to determine the content of the public interest related to its future functioning in the energy management system. This is desirable in connection with the planned construction of nuclear power plants and in the context of their future operation.

The publication concerns normative provisions regarding the advertising of medical devices. Prima facie, it may seem that the entry into force of regulations regulating the principles of advertising medical devices means transparency of action in this area, however, a detailed analysis of the provisions of the Medical Devices Act leads to the conclusion that the legislative area contains certain gaps that may result in sanctioning certain behaviours of entities conducting advertising of medical devices as inconsistent with the applicable regulations. Taking into account the new legal conditions, an analysis of individual legal regulations relating to the principles of conducting advertising of medical devices was made. Due to the short period of validity of the indicated regulations, the purpose of the publication will be to determine the directions of interpretation of individual provisions relating to advertising of medical devices using a systemic interpretation. The legal analysis is accompanied by the hypothesis that the regulations regarding the advertising of medical devices are in many cases undefined and consist of provisions containing vague concepts. The work uses the dogmatic and legal method.

Directive No 2019/2121 of the European Parliament and of the Council of 27 November 2019 substantially amended Directive No 2017/1132 on certain aspects of company law. The Polish legislator implemented new EU regulations on 15 September 2023, when the Act of 16 August 2023 amending the Code of Commercial Companies and certain other acts (Journal of Laws of 2023, item 1705) entered into force, constituting the largest amendment to the transformation provisions of the Code of Commercial Companies for many years. One of the new regulations concerns the so-called side-stream mergers, i.e. mergers involving companies being in such configurations that (1) one person holds, directly or indirectly, all the shares in the merging companies or (2) the members of the merging companies hold their securities or shares in the same proportions in all merging companies. The Polish legislator not only fulfilled the obligation arising from the directive to adopt provisions regarding such cross-border mergers (see Article 51615 § 1 and 2 CCC), but also, in order to prevent the so-called phenomenon of reverse discrimination, introduced similar regulations for domestic mergers. This article aims to critically analyse the latter.

The article presents the authors' comments on Article 649¹ § 1¹ of the Civil Code, recently introduced into the legal system by the Act of 13 July 2023 amending the Act on the provision of information on the environment and its protection, public participation in environmental protection and environmental impact assessments, and certain other Acts (Journal of Laws of 2023, item 1890). The cited provision excludes the application of the provisions on the guarantee of payment for construction works – Articles 649¹–649⁴ of the Civil Code. – "in cases where the investor is the State Treasury." The authors argue that this exclusion is unjustified and unnecessary. It is explained that although the State Treasury is indeed always solvent by operation of law, so that there is no risk of non-payment to the contractor performing construction work for the State Treasury, the payment guarantee referred to in Articles 649¹ et seq. of the Civil Code secures not only the payment itself, but also a timely payment. In the absence of the possibility to demand a payment guarantee from the State Treasury, contrary to the justification of the amendment, the contractors of construction works working for the State Treasury will find themselves in a significantly worse situation than others – thus the State Treasury will indeed become a privileged investor. Such a privileged position is not sufficiently justified by market realities (it has not been demonstrated that there exists a practice of "abusing" of the institution of payment guarantees by contractors performing construction works for the State Treasury) and is not reconcilable with the principle of equality of subjects of the civil law.

Given the dilemmas related to the lack of well-established rules of conduct in the event of a combination of premises underlying proceedings aimed at protecting the EU's financial interests, the commented judgment has become a convenient pretext for presenting conclusions resulting from the analysis of the legal nature of the construct normatively known as suspicion of financial fraud, in the context of certain grounds for excluding a contractor from the proceedings procurement and formulating recommendations for the practice of obtaining and spending European funds in the 2021–2027 financial perspective.