Przegląd Ustawodawstwa Gospodarczego nr 1/2013

PRZEGLĄD USTAWODAWSTWA GOSPODARCZEGO 1/2013

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Aleksander Maziarz, Akademia Leona Koźmińskiego
Niehoryzontalne połączenia przedsiębiorstw w prawie konkurencji UE

Summary

Non-horizontal merges of entities in EU competition law

Merging companies may be in horizontal, vertical or conglomerate relations. The greatest threat to competition can cause a concentration of companies arising in horizontal relationships. But the effects of mergers, in which companies are in vertical or conglomerate relations are not so obvious. Often through merger of the manufacturer of a particular product, together with his distributor there will be reduction in the cost of distribution of products. New merged company can offer products on lower prices and thus increase competition. On the other hand such company can also limit competition. By foreclosing access to inputs merger will rise rivals costs. Such practice can create barriers to entry the market for potential competitors or even eliminate actual competitors.

Double nature of non-horizontal mergers requires adoption of appropriate legal mechanism which will investigate the effects of such mergers. Article aims to analyze how EU law treats non-horizontal mergers. In particular, it focuses on the analysis of the case law, the decisions of the European Commission and EU legislation concerning non-horizontal mergers.

Tomasz Wołowiec, Wyższa Szkoła Informatyki i Zarządzania w Rzeszowie
Dariusz Reśko, Wyższa Szkoła Biznesu w Nowym Sączu
Komunalne spółki prawa handlowego a wykonywanie usług publicznych w świetle Prawa zamówień publicznych

Summary

Municipal commercial companies and a public service according to the public procurement law

The municipality may establish a capital company, with its operations must rely solely on the performance of public duties (own tasks). The municipality can not create a company, or to join it for any other purpose, but to carry out these tasks. The duty of the municipality include, among others the following issues: water supply and water supply, sanitation, disposal and treatment of waste water treatment, maintenance of cleanliness and order and sanitation, landfill and municipal waste, the supply of electricity and heat and gas, etc. The essence of public duties performed by local government units (hereinafter referred to local government units) is to meet the collective needs of the local community for the local market.

Municipal management is primarily the task of a public utility, and thus made through the provision of universal service in the current and continuous manner. Services of a public utility are designed to meet the basic needs of the municipal community. Unsatisfied specific needs so you can be seen as justification for the creation of municipal commercial companies or accede to it.

Marta Boroń, Uniwersytet Śląski
Negocjowanie cen energii elektrycznej w świetle ustawy Prawo energetyczne

Summary

Negotiation of electricity prices in a view of Act on energy law

The release of electricity prices from administrative control of the President of The Energy Regulatory Office and the ever-expanding market liberalization creates conditions for the introduction of new mechanisms of price formation. As a result, negotiations are more and more important in shaping the conditions of sales contract, including electricity prices .
This article attempts to answer the question whether the applicable law support this mechanisms of energy price as a result of negotiations and ensure that parties of the sales contract - within legal limits - sufficient flexibility in price calculation.

KONSULTACJE

Maciej Koszowski, Wyższa Szkoła Biznesu w Dąbrowie Górniczej
Zwykły użytek oraz typowe właściwości w przypadku towarów konsumpcyjnych

Summary

Normal use and typical features against the background of consumer sale

The article addresses the issue of the so-called normal use and typical features of a good of a given type in the context of consumer sale. These two legal institutions – next to public statements on specific characteristics of a consumer good – are decisive in the case the parties do not make any, express or presumed, arrangements as to purposes and qualities that the good should be fit for or possess. That is, basing upon the aforementioned institutions, we determine whether, according to the law, a specific consumer good can, or cannot, be presumed to be in conformity with a contract. Moreover, unless there is a situation in which the buyer has known or, assessing reasonably, ought to have known of the lack of conformity of a good with a contract at the time the contract was concluded, the normal use and typical features of a good usually mark the minimal standards that goods delivered to the buyer has to meet lest they the seller should be liable.

Although the institutions such as normal use and typical features seem to overlap, which makes it very difficult to distinguish one from the other, due to their adoption for the sake of consumer sale, it is now beyond doubt that the instances of non-conformity with the contract encompasses defects consisting in a lower aesthetic value or higher than usual maintenance costs and other expenses one incurs when using a good.

Tomasz Szanciło, Europejska Wyższa Szkoła Prawa i Administracji w Warszawie
Bankowa klauzula prawidłowego doręczenia w obrocie z konsumentami

Summary

Banking proper notification clause in trade with consumers

Proceedings for the recognition of standard contract clauses as abusive is part of consumer protection positions in business. It is carried out under the so-called, abstract control, which is expected to determine whether the use of a contract term is allowed to trade with consumers. One of these provisions, used in particular by the banks, concerns the delivery of consumer official letters and establish the date on which it was served. This clause applies to a situation in which the parties, and so the bank and the account holder (or such borrower), committed in the agreement to notify change of address for service, but if the consumer fails to comply with this obligation, which occurs without a change of address notice of the bank, the effect of this is to recognize that the letters delivered to the address specified in the contract shall be treated as delivered by the bank to the account holder.

Due to the existing Polish law theory of the service, it is extremely important to make declarations of intent by traders and the related effects, which may affect the legal situation of the consumer, because the use of such provisions of the consumer may be unable properly to the statement traders. Through the use of this type of provision is disturbed principle of equal rights of the contracting parties - for the benefit of trader. Indeed, if the consumer would, under the general rules, in a better position if a particular clause of post-determination was not, it should be assumed that it is abusive in nature and thus illegitimate in trade with consumers.