Journal of Business Law 10/2022

The admittance of substitute performance of a contracted service by a third party at the contractor's expense, as a type of fulfilment of the debtor's financial liability, especially in the event of falling into delays or the defective performance of a public contract, constitutes the reinforcement of the principle of real performing a contract, which is important from the point of view of the effective satisfaction of public needs. The alternative form of liability being the rescission of the contract by the contracting authority, while retaining the right to compensation or demanding the payment of a contractual penalty does not always sufficiently satisfy its interests. The authorization of the contracting authority to apply substitute performance can arise directly from the Act, although it only applies to rare, exceptional situations, or a court order. The significance of an authorization arising from a previous contractual provision has recently been increasing. However, this basis poses difficulties of qualification, primarily of a structural nature. The principle of the real performance of a contract can also be implemented by filing an action against an unreliable contractor for a performance in kind, although enforcement difficulties can be avoided by a court order authorizing substitute performance by a third party at the contractor's expense.

This article presents how Art. 4 of the directive (EU) 2019/1 of the European Parliament and of the Council, i.e. the so-called ECN+ directive, is going to be transposed into Polish law. It concerns the independence of the national administrative competition authorities, including the President of the Office of Competition and Consumer Protection in Poland. The aim of the article is, first, to assess the correctness of the transposing draft legislation. Second, the author of the article formulates a critical assessment of the content of the draft national provisions, concluding how these provisions should be amended.

It would seem that the issue of returning expropriated real estate is an institution that has already been recognized to such an extent that it does not raise any interpretation doubts in its basic foundations. It turns out that it is not quite so. In the judicial administrative judgments, such an interpretation of Art. 23 of the the Act of April 10, 2003 on special rules for the preparation and implementation of investments in the field of public roads, on the basis of which expropriated real estate was refused, even if the real estate became redundant for public purposes — thus, contrary to the literal interpretation of Art. 137 of the Act of August 21, 1997 on real estate management, lex generalis in this regard. The study proves that such an understanding is incorrect, it distorts the essence of the institution of expropriation as an ultimate measure (ultima ratio), and in a broader context it violates the principle of equality before the law. The article presents the thesis that the demand to return the expropriated real estate in the event of the fulfillment of the condition of redundancy is a public subjective right of the expropriator. In order to understand the essence of the problem, in a basic scope, other forms of expropriation will also be discussed than by way of an administrative act, in particular directly by virtue of the law (ex lege), and the issue of the moment of transfer of ownership.

The article analyses the issues related to the implementation of organisational responsibilities by personal data controllers and essential services operators relating to the use of risk-based approach, continuous improvement and privacy by design, building internal organisational structures responsible for the security management system of processed information, as well as the role of strategic and operational documentation, the use of self-regulation and standardisation in order to increase the effectiveness of law enforcement. The high dynamics of the development of information and communication technologies and business processes related to their use requires the application of a coherent and interdisciplinary approach to ensuring personal data protection and cybersecurity, which gives synergy effect. Flexibility of applied security solutions, allowing for optimal adaptation to continuous changes in the economic and legal environment, is also important factor. The primary objective of the article is to analyse the consistency and effectiveness of Polish and EU law regulations in the area of ensuring information security of data processing processes, with particular emphasis on the role of organisational safeguards.

Many regulated sectors are facing challenges in terms of development of innovative solutions unlocking their potential to engage new technologies in their businesses. Experience gained in the recent years has reviled significant potential for applying regulatory sandboxes to multiple sector such as financial sector, telecommunication sector as well as to energy sector. Regulatory sandboxes provide these sectors with a tailored solutions to check feasibility of new products as well as ability to comply with the applicable regulations. Bringing benefits of the regulatory sandboxes requires their careful design in terms of a their scope as well as eligibility of entities to participate, in order to avoid any 'side-effects' undermining efficient functioning of the regulated markets. Aim of this article is to provide overview of approaches to the regulatory sandboxes in the FinTech, medical and energy sectors.

Due to the amendment to the Act of 15 September 2000 on Commercial Companies Code introduced by the Act of 30 August 2019 regulations introducing mandatory dematerialization of shares and the establishment of a shareholder register were adopted. As a consequence of the amendment, the moment of the dispositive effect of an action on shares has changed, which, as a rule, takes place when an entry into the shareholder register is made. The subject of this paper is to discuss, in particular, the impact of the mandatory dematerialization of shares on the terms of establishing an ordinary pledge and a registered pledge on shares of non-public companies which shares are registered in the shareholders' register, together with a review of the issues related to determining the moment of establishing both types of pledge on these shares.

The aim of the commentary is to analyse the Supreme Court's position regarding issues related to agent's del credere liability, especially the position regarding the loss of the right to commission for agency as a form of such liability. The commentary contests the view of the Supreme Court admitting that del credere liability of an agent may take the form of loss of the right to commission which compensating the damage suffered by a principal. The commentary indicates that questioning a possibility to establish security by an agent for principal's claim against his client, which security circumvents the law regulating agent's del credere liability, is somewhat correct only, because de lege lata semi-imperative article 7617 of the Polish Civil Code does not contain the normative basis for precluding the effectiveness of the security regulated in the bill of exchange law. It was emphasised that the agent's liability for the client's non-performance the obligation to the principal aside from the framework of restricted del credere liability, including such a liability in the framework of the ex conrtactu liability, should not be accepted. The commentary upholds the view that conclusion of the contract through the agent is only the one of the premises for the right to commission and the view adopted by the Supreme Court that the agent's commission does not depend in principle on the performance by the client the obligation to principle was considered erroneous.