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Journal of Business Law 9/2020

ISBN: 0137-5490
Pages: 60
Publication date: 2020
Place publication: Warszawa
Binding: paperback
Format: A4
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DOI: 10.33226/0137-5490.2020.9.1
JEL: H83, M19

Management control and internal audit were included in a general legal order that defines public funding collection and their disposition in order to increase efficiency of public funds spending. Changes of the provisions of law in a subject area were introduced due to Polish entry to UE. After 15 years of using them we can still have justified doubts of a real influence of introduced tools on efficiency and effectiveness of financial sources management of communes. In the publication the subject matter was consider only in an economic aspect. The aim of the article is to diagnose whether and to what extent the change in the management of a commune influenced the effectiveness of the use of public funds spent by it. Empirical research material was gained on the basis of interviews with people in charge of management control, unit management, organizational units of communes and internal auditors of chosen communes of Dolnośląskie province. An analysis of documents from management control and internal audit of those communes were conducted. All the research conducted allow to conclude that a management control was introduced in order to implement a procedure that was imposed by the law and not to support managers in realizing all the aims and tasks.

Keywords: management control; internal audit; public finances; management; commune efficiency
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DOI: 10.33226/0137490.2020.9.2

The purpose of this article is to answer, from a practical perspective, a crucial question related to legal status of OLAF final control reports (investigative reports conducted by the European Anti-Fraud Office — OLAF): whether these reports can or cannot be applied in the administrative or tax proceedings. Therefore it will be examined whether the OLAF Reports have the value as measures of inquiry in administrative or tax proceedings and whether the content of the OLAF final control report is binding for the public administration, and whether it can be regarded as an official document. Research methodology is based on the analysis of legal texts and interpretations. The legal analysis shows that the OLAF report should be classified as an official document which does not have binding force for the public administration. Moreover when the authority decides, the OLAF report should be taken into account in the administrative or tax proceedings. As a further consequence, the OLAF report can't, unless it is based on special rules, give rise to liability for misconduct of public officer, because it is not a legal act binding on the authority.

Keywords: administrative procedure; tax procedure; evidences; European Anti-fraud Office (OLAF) reports
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DOI: 10.33226/0137-5490.2020.9.3
JEL: K230, K380

The aim of the paper is evaluation of the effectiveness of protection of consumer rights in the electricity market. According to analyses made in the course of an audit carried out in 2017 by the Supreme Audit Office, rights of electricity consumers have not been fully respected, despite legal regulations and actions taken by power companies and government administration. Therefore, the author notes that it should be in the public interest to monitor, in particular, the terms of consumer agreements made with businesses in the electricity and gas market who use standard contract terms. In addition, the initiative of public authorities in stimulating the development of the consumers' rights movement as an essential component of a civil society should also be increased.

Keywords: consumer; consumer rights protection; consumer law; electricity and gas market
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DOI: 10.33226/0137-5490.2020.9.4

The article analyses the cross border principle and the creation of the uniform market in the area of consumer credit in the EU as formulated by Directive 2008/48/EC. It focuses on selected aspects of the Directive: the scope of the Directive, application of maximum harmonization, and consumer credit assessment. The main goal is to assesses how the cross-border principle has been applied over the past 10 years based on the EU and national regulations, verdicts of the Court of Justice of the European Union as well as EU documents.

Keywords: consumer; consumer credit; Directive 2008/48/EC; credit assessment; maximum harmonization; cross-border
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DOI: 10.33226/0137-5490.2020.9.5

The aim of this paper is to determine and characterize the essence, function and legal nature of an institution's individual interpretation being issued by the Polish Financial Supervision Authority as a legal form of public administration activity. The competence to issue such individual interpretations by the Polish Financial Supervision Authority has been introduced under the provisions of the Art. 11b of the Polish Act of July 21th, 2006 on the supervision of the financial markets by the amending Act of May 10th, 2018 on the amending of the Payment Services Act and certain other acts, which came into force on June 20th, 2018.

Keywords: individual interpretation; Polish Financial Supervision Authority; legal form of public administration activity; financial market supervision
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DOI: 10.33226/0137-5490.2020.9.6
JEL: K21, K24

The P2B Regulation lays down the principles of fair and transparent treatment of business users using online platforms (online intermediation services). This legal act, addressing many anti-trust issues, is the first step towards creating ex ante regulatory instruments for online platforms. To contribute to the discussion on the need and possible shape of online platforms regulation, the aim of the research is: (i) to indicate the interaction between the P2B Regulation and antitrust law, with particular emphasis on the importance of antitrust law for the future ex ante regulation of large online platforms, as well as (ii) to determine the desired standard of intervention, including an effective enforcement mechanism, with regard to harmful practices of online platform operators (i.e. entrepreneurs which provide online intermediation services on the platform) identified on the basis of the P2B Regulation. Arguments for the legitimacy of public intervention in the operation of online platform operators in the case of: (i) significant bargaining power of the online platform operator over business users and (ii) damage to the public interest will be elaborated.

Keywords: P2B Regulation; online platforms; fairness; transparency; antimonopoly law
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DOI: 10.33226/0137-5490.2020.9.7
JEL: K22

The commentary concerns a significant judgment of the Supreme Court, which specifies the criteria for assessing the validity of the contractual penalties, the amount of which has been expressed using measures of value other than the specified sum. The views of the Supreme Court both as regards the definition of the aforementioned criteria and the inadmissibility of reserving contractual penalties in a non-pecuniary form in the Polish legal system deserve full approval. The commentary presents additional argumentation resulting from the functional, systemic and comparative interpretation of law supporting the views expressed by the Supreme Court as well as the impact of the commented judgment on contractual practice.

Keywords: contractual penalty; specified sum of contractual penalty; penalty in pecuniary form
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