Przegląd Ustawodawstwa Gospodarczego Nr 02/2008

W numerze:

Artykuły

Marcin Stec

Nowelizacja ustawy "Prawo zamówień publicznych"

Amendment to the Act on Public Procurement
On 13th of April 2007 the Act amending the act - Public Procurement Law and some other acts was adopted. Main prerequisites for the aforementioned amendment was above all to: - conduct profound reform of the system of legal protection measures in the scope of examination of the appeals; - simplify and speed up the process of awarding the public contracts; - adopting changes in the provisions causing interpretative doubts. The most important changes are inter alia: 1) raising of the basic limit causing the obligation to apply the act - Public Procurement Law - from 6.000 EUR to 14.000 EUR; 2) raising the limit below which so called simplified procedure shall be applied (previous limit was 60.000 EUR); on the basis of the new provisions it shall be 5.278.000 EUR for building works, and for supplies and services, depending on the kind of awarding entity, it shall be respectively - 137.000 EUR and 211.000 EUR; 3) establishment of the National Appeal Chamber, as the authority competent for the examination of the appeals against resolution of protests lodged in contract award procedures (National Appeal Chamber shall replace the arbitrators). The Amendment constitutes second step in the process of liberalization of the provisions started on 7th of April 2006. During works on the last year's changes, the government had announced that they constitute the introduction to further reconstruction of the public contracts' awarding system. The works on the draft had lasted beginning from 13th of December 2006 and after five months ended with one of the biggest changes in the public contracts' system. This article includes an attempt to evaluate the amended provisions. The author presents critical opinion towards few fundamental changes of the applicable provisions. Additionally, it is underlined the legitimacy and the direction of the reform inter alia aimed at improvement and speeding up the contracts' awarding procedures.

Joanna Błeszyńska-Wysocka

Użycie utworu w znaku towarowym jako pole eksploatacji

Using a work in a trademark as a field of exploitation
A trademark may be considered "any sign capable of being represented graphically, provided that such sign is capable of distinguishing the goods of one undertaking from those of other undertakings." (Article 120 sec. 1 Industrial Prorperty Law), it may in particular be: word, design, ornament, combination of colours, the three-dimensional shape of goods or of their packaging, as well as melody or other acoustic signal" (sec. 2). It is also possible to use a sign being subject to copyright law (the work) as a trademark. The purpose of using a specified work as a trademark is the following - distinguishing goods and services in trade, which separates - from economic point of view - the way the work is being used. Such separation shall be deemed a separate field of exploitation in the meaning of Article 50 of the Act on Copyrights nad Neighbouring Rights of 4 February 1994. The purpose for specification of fields of exploitations in copyright law is to organize economic copyrights turnover. Appreciation, that using the work as a trademark constitutes a separate field of exploitation, results with the necessity to conclude appropriate agreements. The creator of the given work shall therefore decide, whether the work may be used by a third party as the trademark. It has to be however noticed, that at the same moment the permission to use the work as the trademark is granted to a third party, the creator's monopoly resulting from copyright law is limited. The use of work as a trademark may be either direct - when the work is being used without any changes, or as elaboration. Due to the fact, that elaboration is subject to copyright protection like a separate work, with no harm to copyright vested in original work, permission to use the work as a trademark must be obtained from rightholders of both: original work and its elaboration. The consequence of recognizing the permission to use the work as a trademark and the permission to obtain a right of protection, as separate fields of exploitation is - according to Article 43 of the Copyright Act - vesting the creator with right of remuneration for using the work within this field.

Jakub Pokrzywniak

Nielegalne pobieranie energii na gruncie ustawy Prawo energetyczne

llegal consumption of fuels or energy under the Energy Law
The present article deals with the illegal consumption of fuels or energy transported by grids belonging to energy undertakings. This issue is regulated in the Energy Law of 1997, but considering the fact that there have been important changes in the market structure and in the legal environment since the adoption of this act (e.g. unbundling), a new way of applying these regulations shall be elaborated. The author is of the opinion that it is the grid operator (and not the trader) who suffers a loss resulting from the illegal consumption of fuels or energy. In consequence, the operator may claim compensation from a person who illegally uses its fuels or energy. In practice, however, this issue raises numerous problems. In particular, it is difficult to prove the exact quantity of stolen fuels or energy. In order to resolve this problem, the Energy law provides for penalties which may be demanded by an energy undertaking instead of a 'usual' compensations. Their amounts shall be established in a tariff of an energy undertaking as lump sums. Nevertheless, it seems that the aforementioned provisions of the Energy law already constitute a legal basis for the obligation to pay such penalties, which means that their payment does not depend on the existence of a contract between the operator and the user of fuels or energy.

Krystyna Kowalik-Bańczyk

Pojęcie "wpływu na handel" jako kryterium stosowania przez sądy krajowe wspólnotowego prawa konkurencji

"Effect on trade" as a criterion for application of European Community competition law by national courts
Where the national courts apply Polish competition law to practices which may affect trade between Member States of the European Community, they are also obliged to apply art. 81 or 82 of the Treaty on the European Community of their own motion. The need for application of Community law might be extended by a strong support for private enforcement actions based on Community competition provisions before national courts. The present paper reveals the practical aspects of the verification of the existence of the "effect on trade between Member States" criterion. This seemingly obvious clause has been interpreted by both European Court of Justice and European Commission in a rather extensive way. The national courts are thus faced with a vast definition covering possibly all more significant anticompetitive practices on national market. The paper aims to present practical elements of an analysis that needs to be undertaken by the courts in order to check the existence of "effect on trade" between Member States, construed in the light of European Commission notices and jurisprudence of the European Court of Justice.

Mariusz Fras

Regulacja prawna umowy ubezpieczenia w ustawodawstwie austriackim

The Insurance Contract Law In Austria
Freedom of establishment and freedom to provide services were instituted by directives specific to insurance. These directives enabled insurance companies to develop their business beyond the frontiers of their head office country. At the same time, consumers could buy insurance products in a European Economic Area Member State other than their country of residence. Attempts to harmonise insurance contract law at European level have not been successful. Consequently, insurance contracts in Europe are still subject to different regulations specific to each Member State. The diversity of national provisions on insurance contracts concluded with consumer acts as a brake on the development of cross-border insurance business. This publication gives insurance companies, consumers and intermediaries a very complete overall view of regulations governing contractual relationships in Austria at every stage of performance of the insurance contract.

Orzecznictwo w sprawach gospodarczych

Elżbieta Skowrońska-Bocian

Sąd Najwyższy
I. Odrzucenie skargi na orzeczenie arbitrów
II. Egzekucja z nieruchomości