Przegląd Ustawodawstwa Gospodarczego Nr 01/2008

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Artykuły

Tomasz Czech

Odpowiedzialność kredytobiorcy za szkody wyrządzone w środowisku w prawie angielskim, amerykańskim oraz polskim

Borrower's liability for damages caused in the environment in English, American and Polish Law
The purpose of this article is to describe legal issues connected with lender environmental liability under English, United States and Polish laws. Flourishing nowadays environmental regulations are an important risk factor in operations of banks, which grant loans to borrowers engaged in activities adversely affecting natural resources. Financial institutions face not only borrowers' liability risk under environmental laws, but also credit and security risks. The regulation of lender environmental liability under Polish law is compared with legal doctrines and solutions developed in the English and US federal law systems, where the issue has been deeply discussed in the legal literature, as well as in several judgments. The comparative analysis proves that in all the three systems lenders bear risk of environmental liability. Although some discrepancies between the laws can be detected, the risk is generally actual in two cases: a) if the lender has operational control over borrower's activities, which adversely affect or may adversely affect natural resources; b) if the lender acquires possession or the ownership title to assets of the borrower or other entities as a security or satisfaction of its claims. Under US federal law lenders are protected against risk of environmental liability in the most comprehensive way. In English and Polish law systems the issue is still underregulated, in particular as to the question what level of lender's control over borrower's activities results in risk of lender environmental liability. Interpretation of the relevant legal rules depends on views on the role of financial institutions in economy and society, including their social responsibility, and should be also based on the Law and Economics methodology.

Sławomir Czarnow

Działalność samorządu terytorialnego a gospodarka komunalna

Economic activity of self-government and municipal economy
The article is based on municipal management (economy) and economic acitivity of communes, districts and voivodships (regions) as a self-government sector. The essential regulations included in Constitution of Republic of Poland, Communal Economy Act, Commune Self-government Act, Poviat Self-government Act, Voivodship Self-government Act, Public Finances Act connected with self-governmental economy and economic activity, are described. Related Supreme Court and General Administrative Court judgements were taken into consideration, too. The permissible range of economic activity varies depending on level of self-goverment administration. Communes and voivodships are empowered to run both the commercial and noncommercial activity and the districts - only noncommercial activity. Forms of noncommercial (public-utility) activity are in principle unlimited, with some expections, introduced from the 1st January of 2006 (foundations and self-government institution without legal status). Admissible forms of commercial activity are a joint-stock company and a limited liability company. The object of their business is restricted to enterprises important for local or regional development. Possibility of establishment of partnership (firm or in commendam) with self-governmental share was controversial, until the 1st January of 2006, when self-government institutions without legal status was forbidden.

Agata Jurkowska

Perspektywy prywatnego wdrażania prawa ochrony konkurencji w Polsce na tle doświadczeń Wspólnoty Europejskiej

Perspectives of private implementation of the competition protection (anti-monopoly) law in Poland basing on the European Community experience
Private enforcement of competition law has been one of the most important issues in antitrust law, broadly discussed at the level either of the European Community or its Member States. That method of implementing antitrust law creates an opportunity for private parties (entrepreneurs or/and consumers) to assert a claim against entities infringing prohibitions of restrictive practices (prohibition of cartels and abuse of a dominant position). Although the background of the article are developments in EC law, the article focuses on perspectives for private enforcement of antitrust law in Polish civil courts. It presents a main developments within current legislation as well as case law on that topic. Shifts in a position by the Supreme Court are strongly emphasized. The article points key problems of future debate on private enforcement of competition law in Poland: relations between private and public enforcement, a need for proper legal basis for private antitrust claims and the ability of courts to enforce Article 81 and 81 of the EC Treaty in accordance with fundamental rules of EU law.

Orzecznictwo w sprawach gospodarczych

Elżbieta Skowrońska-Bocian

Sąd Najwyższy
Umowa o zwolnienie poręczyciela z obowiązku świadczenia