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Przegląd Ustawodawstwa Gospodarczego nr 01/2011

ISSN: 0137-5490
Pages: 32
Publication date: 2011
Place publication: Warszawa
Binding: paperback
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Leonard Etel, Uniwersytet w Białymstoku
Podatnik prowadzący działalność gospodarczą a pomoc publiczna
The taxpayer's economic activity and the problem of public aid
The notions of entrepreneur and economic activity carried out by one, are far wider in the EU law than in Polish regulations, especially in the law on economic activity and the tax ordinance act. For the public aid to be applied, definitions of the above mentioned terms formulated in the law and jurisdiction of the EU, are of the key importance.
 Each entrepreneur (as understood by the law on economic activity) and each subject carrying out economic activity (as understood by the tax ordinance act) undoubtedly fall under the notion of entrepreneur in the light of art. 107 of the Treaty on the Functioning of the European Union. However, the tax authority, when deciding about application of reliefs concerning the tax obligations, may not limit its actions solely to the analysis of the national provisions regarding the status of entrepreneur.
It is especially important when, according to Polish law, the entity appling for tax relief is not treated as an entrepreneur. It does not mean that he/she is not an entrepreneur based on the EU law. There is no “universal" definition of entrepreneur in these regulations. In doubtful situations, it will require an individual analysis of every case based not only on analysis of legal acts, but also on the judicial jurisdiction and opinions of the doctrine.
Paweł Czepiel, Uniwersytet Jagielloński
Problematyka prawna ochrony powierzchni ziemi jako medium środowiskowe (część I)
Legal aspects in the protection of soil as an environmental medium (part 1)
The article concerns legal aspects of soil protection. The importance of this environmental element is evident, whilst its most significant functions would include biomass, food and resource supply. Soil is subject to conservation measures resulting from the implementation of environmental protection objectives and tasks. What should be emphasised in the case of this environmental medium is the number of threats resulting from the variety of human activities, such as transport, power engineering, forestry, and industry. Negligence of soil conservation issues leads to degradation processes, such as erosion, decline in organic biodiversity, salt contamination, floods, or landslides. The first part of the publication presents a legal definition of soil. It introduces conditions of effective soil protection as well as relevant objectives and tasks. An overview of legal provisions related to soil protection offered therein consists of three types of documents: provisions protecting soil in the framework of solutions aimed at the protection of all environmental elements existing within a given area, including soil; provisions which are supposed to develop effective principles of soil protection passed from the point of view of soil protection needs; and provisions which are also relevant to this environmental medium but have been passed for purposes other than those directly linked to soil protection.
Rafał Adamus, Uniwersytet Śląski
Miejsce prawa upadłościowego i naprawczego w systemie prawa
The position of the Bankruptcy and Rehabilitation Law in the system of the law
This article has been devoted to the position of the Bankruptcy and Rehabilitation Law in the system of the Polish Law. The article focuses on the sources of the bankruptcy law in Poland, the different kinds of the bankruptcy norms. The main conclusion is the following: the bankruptcy law is a separate branch of the law. This thesis is generally accepted by the Polish doctrine of the bankruptcy law. The criterion to separate the bankruptcy law is the special subject of the social relations connected with insolvency. Unfortunately this criterion is not ideal because of the leak of the disjunction to the other branches of the law. The bankruptcy law is not homogeneous. There is – among others – the substantive bankruptcy law and the procedural bankruptcy law. The substantive bankruptcy law is a part of the private law. In many situations provisions of the bankruptcy law modify the general rules of the civil law.
Beata Kopania, Uniwersytet Kardynała Stefana Wyszyńskiego w Warszawie
Konieczność zmian przepisów o opłatach od urządzeń kopiujących i związanych z nimi tzw. czystych nośników w świetle wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 21 października 2010 roku (C-467/08)
A necessity of amendments to the regulations on copy devices' fees and connected with them “clear carriers” in the light of EU Court of Justice verdict of October 21, 2010 (C-467/08)
This Article concerns issues related to copyright law, arising from the Court of Justice’s verdict of October 21, 2010, passed in course of preliminary rulings. This verdict discussed the following matters:
·  „Fair compensation” as the autonomous conception of the Union law,
·   Calculating of “fair compensation” on the basis of a „damage” criteria, caused to an author in course of introducing a “private copy” exception,
·   The relation between „fair compensation” and „damage” caused to an author and other rightholders,
·   Use of „licence fee” as regards devices and digital carriers being available to entities other than private entities in differentiated way and in obvious way reserved for other use than producing copies for own private use,
The above mentioned issues have been also analysed on the basis of the Polish Act on Copyright and Related Rights of February 4, 1994 and the Ministry of Culture Decree of June 2, 2003 on categories of devices and carriers used for fixation of works and fees related to sale of these devices and carriers by producers and importers.
As the result of this comparison the following de lege ferenda postulates have been made:
·   The change of Article 20 of the Copyright Act in the way for this Article to become a reflection of the idea included in Union’s provisions, consisting of providing a proper “remuneration” for entities authorized by introducing a “private copy”.
·   The change of the existing Ministry of Culture Decree of June 2, 2003 on categories of devices and carriers used for fixation of works and fees related to sale of these devices and carriers by producers and importers in the way considering on the one hand for all devices available on the market and enabling digital multiplification to be included in the list of devices and carriers used for digital multiplification, but on the other hand for the existing fees to become a sufficient contribution covering “damages” of authorized entities due to imposing a “private copy” exception.
Tomasz Płachtej, Politechnika Opolska
Urząd ds. Harmonizacji Rynku Wewnętrznego w Alicante (Office for Harmonization Internal Market in Alacant) jako wyspecjalizowany organ Unii Europejskiej w zakresie ochrony praw własności przemysłowej
Office for Harmonization Internal Market in Alicante as a specialized EU office in the scope of industrial property law protection
The present article focuses on issues relating to operation of the Office for Harmonization in the Internal Market in Alicante. At first, issues concerning causes and course of harmonization of the Community Law in the scope of industrial property law are discussed. Then the article presents the most important legal institutions of the Community Law in the scope of industrial property law, i.e. the Community Trade Mark and the Community Design. However, the biggest stress is put on description of principles behind operation of the Office for Harmonization itself and its organization. Aims of OHIM and place of the Office in the institutional system of the European Union has been discussed in details. Organization and internal structure of OHIM was very thoroughly analysed and tasks, as well as the manners of appointing and dismissing senior civil servants, the personnel executing procedures, the Administrative Board and the Budget Committee were presented.
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