No. 35

The author examines the issue of „the exceptional cases” enabling a court to terminate an annuity under Article 913 § 2 of the Civil Code. The purpose of this article is to familiarize readers with the issue of annuity and grounds for its termination. Termination of the annuity by the courts is determined on a case-by-case basis. For this reason,
Supreme Court decicions regarding the admissibility of termination of a life contract is a review of theses and justifications made in the jurisprudence. The author focuses on the analysis of premises admissible by case-law, which justify „the exceptional cases” and the termination of the contract. The above considerations mainly concern the interpretation of the caselaw of the Supreme Court. Conclusions reached by the author make possible to understand legal norms that had been subjected to a more detailed interpretation by the Supreme Court.

According to Article 58 § 1 of the Polish Civil Code, a legal transaction contrary to the law and a legal transaction aimed at circumventing the law are different grounds for declaring a legal transaction invalid, whereas according to Article 252§ 1 and Article425§ 1 of the Polish Commercial Companies Code basis for declaring resolutions of the shareholder meeting invalid is only their contradiction with the law. Therefore, the question arises as to whether it is admissible to declare the invalidity of the resolutions of the shareholder meeting which were intended to circumvent the law and whether the resolutions of the shareholder meeting can be qualified as legal actions.
A positive answer to the last of the above questions raises further doubts, namely whether the contradiction of the resolutions with the principles of social coexistence referred to in Article 58 § 2 of the Civil Code may also be grounds for declaring the resolutions of the shareholder meeting invalid, and whether it may be stated under Article 58 § 3 of the Civil Code that only a part of the resolutions of
the shareholder meeting is invalid. The second important issue is the possibility of applying the provisions on defects in the declarations of will referred to in Articles 82-88 of the Civil Code to the votes of shareholders and on their basis to declare the resolutions of the shareholder meeting invalid.
Conclusions resulting from the conducted deliberations confirm the possibility of proper application of the provisions of the Civil Code as a basis for declaring the resolutions of the shareholder meeting invalid, with the reservation that when applying these provisions, the nature of individual resolutions of the meetings of capital companies should be taken into account and that the invalidity of these resolutions cannot be declared “by law” ( absolute invalidity), but only as part of an appeal against the resolutions in the mode provided for in the Commercial Companies Code.

The author’s main point of reference is the judgment of the Supreme Administrative Court of 19 December 2018. Court’s decision resonided with the doctrinal discussion on the need to secure professionalization of supervisory board
members by both the initiated reform of the Commercial Companies Code and non-normative measures. This reform must be carefully considered and such consideration must include prohibitions or significant restrictions of participation of notaries in the company’s supervisory board.

The right to information on the environment is a public subjective right according to the Polish Constitution, international and European law. This right is supposed
to be a basic instrument of environmental protection that enables further measures to be taken. Regulations of the right to information on the environment assume quick and effective actions of the authorities. The legal rules give short deadlines for fulfilling information obligations. However, the Act on Sharing Information about the Environment and its Protection lacks precise regulations of challenging the inactivity and extensive length of proceedings. This makes effective exercise of the rights of citizens and other entities to get information impossible. The considerations presented in the article refer to the current legal regulations of the length and legal nature of statutory deadlines for disclosing information, as
well as the proper procedure for challenging inactivity and excessive length of proceedings.

The impact of entrepreneurs on the environment, through conducting business activities on the one hand, and by the behaviour of entities other than entrepreneurs operating in a given area and using the environment, on the other hand, makes it necessary to indicate the importance of using public subjective rights to use of the environment as a legal good. At the same time, the concept of nature (in the legal sense of the environment) allows to assume that using of the nature is a public right. It is also unjustified to separate
the use of the environment from its protection and analogical use of nature and its protection, even in case of an entrepreneur. The dichotomy of acts defined this way will effect in shaping the attitudes of entrepreneurs towards the greater awareness of the need to protect the environment, including nature, but above all in shaping attitudes expressed in the fact that entrepreneurs do not have to be limited only to activities that exert pressure on the environment or nature.

The author presents the problems of approving energy tariffs in the legal-administrative and private law dimensions. The shaping of tariffs for gas fuels, electricity and heat is one of the legal-administrative antitrust instruments. The President of Energy Regulatory Office, as part of the competences granted by the legislator and related to approving tariffs, not only directly influences the
competition in the energy market, but also the civil law nature of the relations between receivers and energy companies.

This article considers current European Union and Ukraine’s wholesale natural gas market in light of regulatory measures that had been enacted and/or implemented with respect to its organization and functioning. The analysis points to three major goals EU’s energy sector regulation is geared to achieve: 1) economic (i.e. procompetitive support); 2) energy security; and 3) social goals. As such, the EU wholesale energy market can be regarded as a regulatory instrument. Ukraine assumed the obligation to implement EU legislation in the field of energy sector regulation (Energy Community acquis communautaire): Act of Ukraine No. 329-VIII of 9 April 2015 on natural gas market implements fundamental principles of the third energy package in the area of organization and functioning of the wholesale natural gas market. However, for Ukraine’s wholesale energy market to assume characteristics of a regulatory instrument akin to the EU market, further implementation of EU regulation 1227/2011 (REMIT) and, to some extent, implementation of the fourth energy package is needed. Part 2 assesses current efforts and discusses regulatory requirements that Ukraine faces if it wants to successfully incorporate EU gas market principles within its natural gas market.

This article considers current European Union and Ukraine’s wholesale natural gas market in light of regulatory measures that had been enacted and/or implemented with respect to its organization and functioning. The analysis points to three major goals EU’s energy sector regulation is geared to achieve: 1) economic (i.e. procompetitive support); 2) energy security; and 3) social goals. As such, the EU wholesale energy market can be regarded as a regulatory instrument. Ukraine assumed the obligation to implement EU legislation in the field of energy sector regulation (Energy Community acquis communautaire): Act of Ukraine No. 329-VIII of 9 April 2015 on natural gas market implements fundamental principles of the third energy package in the area of organization and functioning of the wholesale natural gas market. However, for Ukraine’s wholesale energy market to assume characteristics of a regulatory instrument akin to the EU market, further implementation of EU regulation 1227/2011 (REMIT) and, to some extent, implementation of the fourth energy package is needed. Part 2 assesses current efforts and discusses regulatory requirements that Ukraine faces if it wants to successfully incorporate EU gas market principles within its natural gas market.

The decision of the Court of Justice of the European Union in the Stadt Halle case in 2005 announced the changes in the organization of the forms of implementation of their
own tasks by local government units in France. The Court stated that that the smallest share of the private sector in the companies performing a public task will require treatment of such companies as normal commercial entities and will require the application of the principles
of free competition and public procurement law. Given the above, to previously known legal forms of performing their own tasks by local government units like sociétés d’économie mixte locales (SEML), établissements publics and entreprises publics, a new form of local public company – société publique locale (SPL) – was added. As a result of this change a lot of SEML companies were transformed into a SPL ones. All these may be interesting for the Polish legislator in case of changing Polish legal regulations related to discussed issue.

The article concerns the issues of the voivodeship marshal’s resignation from his function, including the mode of its submission and effectiveness. The author also analyzes the possibility of withdrawing the resignation statement. According to the author, the marshal of the voivodeship has the right to withdraw the resignation until the start of
voting on the acceptance of this resignation. Until that moment, the voivodeship marshal is the disposer of the statement, which admittedly relates to the public law sphere. This does not exclude the possibility of its withdrawal. The author indicates that the freedom of work
referred to in Article 65 section 1 of the Polish Constitution of April 2, 1997, favors granting the voivodeship marshal the right to withdraw the resignation statement until the voting in the voivodeship parliament has commenced its adoption. The declaration of resignation does not automatically produce any legal effects, which makes it possible to be evaded by the statement of the one who made it.

Broadly understood concept of „intoxication” can be found in many rules and regulations that use phrases that in fact introduce considerable terminological confusion. The Penal Code uses phrases: „intoxication”, „being under the influence of a stupefacient substance” or „other similarly acting agent” in various contexts. The author discusses what „intoxication” is and the concept of „intoxicant”. The authors also answer the question whether these terms include all psychoactive substances and which interpretation of the term „intoxicant” should be used for criminal liability of the perpetrator under the provisions of the Penal Code. The author also discusses the term „drug similar to alcohol” and how „a state of influence” and how a „state after use” a narcotic should be understood.

The author deals with the problem of the possibility of changing the classification of an act the defendant is accused of (in the event of a theft indictment against him) if at the trial it turns out that the crime should be classified as
fencing. This issue is of significant practical importance since these crimes are common. This issue is also controversial in the legal writings and differently assessed in the Supreme Court jurisprudence.

International law in force in Poland provides honorary consuls with functional jurisdictional immunity protecting them (in the scope of exercising activities inherent in
services within the entrusted consular functions) to the same extent as consuls. In practice, Polish police officers have challenged (in the course of roadside checks) jurisdictional immunity of honorary consuls performing their functions (through intrinsically official activities) inconsistently with binding international law, especially with the Vienna Convention on Consular Relations. It shows the need for standardisation of police activity in the course
of roadside checks and for clarification of incidents towards fining or a request for punishment. Especially because the provisions of the Vienna Convention on Consular Relations
allow proper enforcement of road traffic rules against the honorary consul (exercising their consular functions and / or invoking immunity from jurisdiction), taking into account their immunity from jurisdiction, furthermore motivating Poland (as a State), the Police, the honorary consular corps (in Poland) and (possibly) countries sending the honorary consul to Poland to make real efforts to improve the legal situation within the subject matter.

The article aims to present Jerzy Panejko’s view on understanding the essence of self-government. It refers to the study by Adam Ostrowski, entitled ‘Jerzy Panejko and His Views on the Institution of the Local Government’, which was published in “Prawo i Więź” No 34. The article presents archives concerning J. Panejko together with a bibliography that are the basis of the possible reconstruction of his views on the substance of self-government. Author also describes the method used by J. Panejko, and he refers as to Panejko’s definition of self-government. The author also discusses the problem of the public law personality of self-government, he points out the determinants of Panejko’s approach to the essence of
self-government, and presents the continuators of his thoughts. 

Dilemmas that arise from the thesis put forward by the Court of Appeal in Gdansk in the judgment of 17 July 2019 are the basis of the comment. A starting point for consideration may be the method adopted by the Court to understand the ability to recognize the meaning of an act and the ability to direct a conduct by the perpetrator of a prohibited act, constituting a psychological element of the statutory determination of significantly diminished sanity (Article 31 § 2 of the Penal Code). In the light of the commented judgment, their presentation seems to deserve approval prima facie. However, their determination by the
court as ‘states’, as well as perception of ‘relevant circumstances’ affecting the punishment rises reasonable doubts. The aim of this study is to show these doubts, as well as to draw conclusions about the legitimacy of this position on the basis of a dogmatic and legal analysis
of the issue of diminished sanity.

A person conducting business activity is subjected to sickness insurance on a voluntary basis which means that this insurance depends on the request of the concerned
person. Lack of sickness insurance deprives a person conducting business activity sickness insurance benefits, related to the inability to work or to the birth of a child. Supreme Court’s ruling resolved this legal problem by an affirmative answer to the question: “Does the commencement of receiving maternity benefit by a person running a non-agricultural activity, who had previously been voluntarily covered by sickness insurance, result in the termination of this insurance under Article 14 (2) (3) in connection with Art. 11 (2) of the Act of October 13,
1998 on the social insurance system?”