cover vol. 16 no. 5

Abstracts

Anna Przyborowska-Klimczak

A Quarter-Century Activity of the Committee of the Regions of the European Union

(article in English)
The Committee of the Regions was established on the basis of the Maastricht Treaty of 7 February 1992, and began operating in March 1994. It consists of representatives of regional and local authorities who have obtained electoral mandates from the communities they represent. The number of members of the Committee was set for individual Member States and it was assumed that its composition should not exceed 350 members. The organizational structure and principles of the Committee’s operation are set out in its Rules of Procedure. The Committee is an advisory body consulted by the European Parliament, the Council and the Commission. It prepares opinions as part of obligatory, optional and own-initiative procedures. It can also adopt resolutions and prepare reports, analyses and outlook opinions. The Committee has the right to bring cases before the Court of Justice of the European Union in order to protect its prerogatives and to apply the principles of subsidiarity and proportionality.

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Keywords: Committee of the Regions, European Union, opinions, decision-making process in the European Union
JEL: F02, K33, R1

Katarzyna Doliwa, Adam Doliwa

Philosophical and Legal Basis of Territorial Self-Governance

(article in English)
The subject of the article are selected philosophical and fundamental legal (i.e., systemic and constitutional, foundations of self-governance and local democracy). The authors present a general concept and the most important pragmatic function of democracy. The subject of the analysis is also the legal principle of self-governance as a systemic postulate of the democratic state ruled by law. The theoretical inspiration for the deliberations on decentralization and local democracy are the philosophical and political concepts of Ostrom and the philosophical classics: Hobbes, Montesquieu, and de Tocqueville. Self-governance and democracy, also considered from the point of view of their merits and disadvantages, have been included as a counterweight to centralism and monocentric democracy carrying a number of threats to freedom. In order to illustrate general arguments based on the method of analysis of normative and philosophical texts, the authors also use the example of American local democracy; it was chosen as a form of self-governance and local democracy in a modern sense, yet the oldest one and very well-functioning in practice. In the conclusions, the authors state what territorial self-governance is and what role it plays in the democratic system. They also emphasize that territorial self-governance, through actual decentralization of public authority, ensures democracy and secures against the transformation of monocentric democracy into a dangerous oligarchy.

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Keywords: decentralization, self-governance, local democracy, political community, Ostrom, Hobbes
JEL: H7, H83, K19, R50

Monika Kępa

Management Control and Internal Audit as Instruments for Realization of Public Tasks Performed by Territorial Local Government Units

(article in English)
The issue of delegating the part of public tasks, previously performed by the state, to the newly established entities of the public law became topical after the territorial self-government was introduced in Poland. Those tasks concern the satisfaction of the collective needs of communities by reaching or maintaining the certain status, in particular relating to the protection of daily or cultural needs. Those tasks are mainly realized by the units of territorial local government and the units of local government connected with them, which are the part of the public finance sector. Management control is the overall process which is closely integrated with the activity of the unit of the public finance sector and which constitutes a set of actions and events to provide the realization of the unit’s goals. The goal is the realization of the public tasks entrusted to them. The role of the internal audit is to show whether all the actions taken to ensure the realization of the goals and tasks are performed in a lawful, efficient, economical and timely manner. Management control and internal audit were created due to the necessity to establish legal conditions and instruments which enable the optimal realization of public tasks. Simultaneously, their use by the local government units which are the part of the public finance sector is not sufficient. It means the necessity of the actual implementation of the mechanisms of the management control and their independent and objective assessment by the internal audit.

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Keywords: territorial local government, units of the public finance sector, public tasks, management control, internal audit
JEL: H7, H83, M42, R51, R58

Jarosław Kostrubiec

Status of a Voivodship Governor as an Authority Responsible for the Matters of Security and Public Order

(article in English)
The purpose of the article is to present the legal status of a voivodship governor in Poland within the area of security and public order. The representative of the Council of Ministers in a voivodship performs a managerial and coordination functions in matters of security and public order, the aim of which is to meet the needs in this respect more effectively. The analysis of the legal situation in this respect leads to the conclusion that a voivodship governor as a local authority performs a wide range of responsibilities to protect security and ensure public order. The author of the article argues that a voivodship governor to carry out such tasks, the legislature has equipped this body with many powers, sometimes entailing sanctions for the entities to which these tasks are directed, and therefore they must be applied not only with caution, but above all within the limits of law to avoid any abuse in that field.

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Keywords: voivodship governor, security, public order
JEL: H83, R5

Wojciech Konaszczuk

Cross-Border Cooperation between Poland, Russia and Ukraine on Oil and Gas Trade — an Attempt at Reflection in the Context of Energy Security

(article in English)
The issue of supplies of raw materials in the form of crude oil and natural gas to the European Union, including Poland, is a complex and problematic one. Changes in the geopolitics of the end of the 1990s within Europe caused the necessity of changes in international agreements concerning oil and natural gas trade among their parties — EU countries. The simultaneous independence of Ukraine as a state entity from Russia caused complications not only of a political but also of an economic nature. The aim of the article is to present the author’s view on the complexities of crude oil and natural gas trading between Poland, Russia and Ukraine and an attempt at analysis. The legal-dogmatic and statistical methods made it possible to identify important conclusions for the future, the most important of which include: the need to renegotiate bilateral agreements between Russia and Poland, the need to renegotiate bilateral agreements between Poland and Ukraine, and the need to develop a common EU position within the security policy of this international organization (i.e., the European Union).

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Keywords: gas transmission, oil transmission, restrictions on gas trade, restrictions on oil trade, Russia, Ukraine, Poland, cross-border trade in energy carriers
JEL: F02, F15, F42, K32, Q4

Arkadiusz Bereza

Participation of Legal Profession Self-Government Organizations
in the Process of Law-Making

(article in English)
Self-governments of legal professionals give their opinions on draft legal acts as part of public consultations and cooperation with the Minister of Justice, based on statutory delegation. The most active in this respect is the self-governments of attorneys-at-law and advocates, to which drafts of all legal acts are being sent. To this end, specialized agencies have been created in these organizations, which carry out the statutory task of self-governments of legal professions to provide opinions on draft legal acts. Since 2016, comments on drafts submitted by legal profession self-governments have rarely been taken into account, and sometimes there is even no evidence for a more profound analysis thereof. This means that there is no reliable consultation, which undoubtedly affects the quality of law. This is the result of a fast and too much simplified legislative process that dominated the period of 2016–2018.

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Keywords: self-government of attorneys-at-law, self-government of advocates, Sejm, legislation, public consultation
JEL: K4

Krzysztof Seroka

Sandomierskie Voivodship in the Former Poland — 
Political and Administrative Status

(article in English)
The Sandomierskie Voivodship existed on the administrative map of Poland from the 14th century until the fall of the Polish-Lithuanian Commonwealth at the end of the 18th century. Its genesis is connected with the times of the early Piast monarchy and the importance of the city of Sandomierz as one of the main seats of the Kingdom of Poland (sedes Regni principales) already defined in the oldest Polish Chronicles by Gallus Anonymus. Sandomierz’s relations with Krakow during the division of the state into districts (1138–1310) and support granted to the Piasts in the struggle for the unification of the state raised the province of Sandomierz to the rank of the voivodship, with all the constituent elements of the voivodship as an administrative unit of the nobility’s self-government. This study draws attention to the role of historical factors in obtaining a high position in the hierarchy of pre-partition Poland by the Sandomierskie Voivodship. In particular, the role of this voivodship is visible in the light of formal and legal sources, documents and royal seals as well as the place of the Sandomierz’s dignitaries in the former state ceremonial. The dusk of the significance of the Sandomierskie Voivodship was triggered by the reign of rulers of the Jagiellon dynasty in Poland. The shift of the state borders to the east after the unification of Poland and Lithuania weakened the former meaning of Sandomierz as the main gate leading from Poland to the east. After Poland regained its independence in 1918, the concept of the continuation of the voivodship with the capital in Sandomierz was developed. These plans were interrupted by the outbreak of World War II and the Polish state did not resume them.

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Keywords: Sandomierz, Sandomierskie Voivodship, history of administration, local government
JEL: K23, N93, N94

Jacek Sobczak

Legal Status of the Voivodship Marshal in the Light of Its Functions

(article in English)
The legal status of the voivodship marshal is determined by a number of conditions. The most important are functions and powers vested in this authority under the Act on the voivodship government, other laws and provisions of secondary legislation. The analysis of these regulations determines the strong legal position of the voivodship marshal, which allow for including this authority in the category of local government bodies, even though the Constitution and the Act on the voivodship government mention only the voivodship assembly and the voivodship board as local government authorities. The independent, managerial powers in the voivodship board, and in particular the right to issue administrative decisions in individual cases, frame this institution as a monocratic authority. This conclusion allows putting forward a proposal concerning direct election of this authority by the inhabitants of the voivodship.

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Keywords: the voivodship marshal, body of local government, functions of the voivodship government, voivodship government, voivodship board, managerial function
JEL: H83, K23

Edyta Całka

Nutritional and Health Claims. Considerations in Light of the CJEU Judgment of 17 December 2015 in the Case of Neptune Distribution, C-157/14

In accordance with European Union law foodstuffs can be labelled and advertised bearing nutrition and health claims. General provisions relating to nutrition and health claims made on foods are contained in Regulation No 1924/2006. However, according to the judgment of the Court of Justice of the European Union in Neptune Distribution, C-157/14, as regards the claims of natural mineral water Directive 2008/54/EC is of fundamental importance. It lays down specific provisions concerning the use of nutrition and health claims made on bottled water, including claims which concern low sodium or salt content in water.

Keywords: European Union law, case law of the Court of Justice of the European Union, Regulation No 1924/2006, Directive 2009/54/E, labelling of foodstuffs, labelling of natural mineral waters, nutrition and health claims, sodium or salt content of natural mineral water
JEL: K13, K32, K33, L66, M3, Q18

Jarosław Dudzik

Food Advertising in EU Law

Food advertising has always been an important element of the developed market. This results both from the universality of marketing activities that concern food, as well as from the importance of this method of providing information about these goods. In recent years, a significant change has been made regarding the legal regulation of food advertising. It involves transferring the body of legal regulation of this issue from national law to the law of the European Union. This took place with the entry into force of Regulation 1169/11. The cited regulation replaced and thus harmonized legal provisions of the Member States in the area of broadly understood food information. This change raised questions about the relationship between Regulation 1169/11 and national law on advertising in general. This publication is primarily about this matter. Following the analysis, it should be concluded that with the entry into force of Regulation No. 1169/11, the legal regulation of food advertising has been fully unified. This also applies to the law on combating unfair competition and the law on unfair market practices.

Keywords: food information, advertising, food, labelling, EU law, regulation, national law
JEL: K13, K33, L66, M3, Q18

Paulina Krukowska-Siembida

Access to Medicinal Products as a Component of the Right to Health

In the research concerning this subject it is often emphasized that it would be difficult to find a more undefined human right than the right to health, the content of which was initially shaped as a customary standard, then it was specified in numerous Treaty norms. The scope of this article is, firstly, the attempt to characterize the right to health based on the most important international law agreements and, secondly, the attempt to determine what this right comprises. While specifying the material scope of the discussed right, the concept of “basic obligations” of states emerges, including access to medicinal products, among others. The institution inherent in trade in products in the European Union is parallel trade, whose main driving force is the price difference of the same products in different countries of the Community. The issue of parallel import is particularly important because of its role in shaping access to medicinal products.

Keywords: right to health, parallel import, medicinal product, soft law
JEL: I1, K32, K33

Krzysztof Kukuryk

Commission for the Reprivatization of Warsaw Real Estate as an Extraordinary Authority for the Supervision of Local Government Administration

The Act of 9 March 2017 on special principles for the legal consequences of restitution decisions regarding Warsaw real estate, issued in violation of the law, established a Commission for the reprivatization of Warsaw real estates. The commission was established to control the entire reprivatization decisions regarding Warsaw real estate, issued on the basis of the decree of October 26, 1945 on the ownership and use of land in the area of the capital city of Warsaw. The competences of the commission constitute an important breach from the general principle of administrative proceedings that assumes the stability of final decisions. The commission for the reprivatization of Warsaw real estate as a public administration body guarding the public interest in proceedings regarding the issuing of reprivatization decisions regarding Warsaw real estate is not only a control but also a supervisory body with the authority to enter the sphere of legal independence of self-government. The control of the Commission for the reprivatization of Warsaw real estate is a special control. Due to the manner of appointing members on the one hand, it is an element of parliamentary control. Most members of the Commission are appointed and dismissed by the Sejm of the Republic of Poland. On the other hand, the scope of the Commission's competences, the scope of the subject of supervision and the course of proceedings allow it to be placed in the system of executive authorities.

Keywords: reprivatization, control, supervision, Commission for the reprivatization of Warsaw real estate, administrative proceedings
JEL: K11, K23, K42

Jerzy Szczotka

Trading in the Material Carrier of the Work in the Perspective of
Property Law and Copyright

The article deals with the issues of substantive turnover of a work in the perspective of property law and copyright. The carrier in question is a movable thing, which means that its turnover falls within the domain of the subject right of ownership. The owner of such an item has a “sovereign” right to transfer (dispose of) his property by selling, exchanging or donating, he can also rent or lend it freely. On the other hand, the carrier of the work has a special legal status due to author’s rights, which the legislator grants to the creator of the work (non-material good) embodied in this subject. The author has the exclusive right to all forms of distribution of the work, including also the sale, exchange and donation of the copy and transferring it to be used by rental or lending. In this situation, there is a collision of two subjective absolute rights — the right of ownership of things and copyright to an intangible property (work), whose carrier is a thing. The statutory institution of exhausting the author’s right to place a copy of the work on the market enables to avoid this collision. As a result, the first legal (with the consent of the author) sale (exchange, donation) of such a copy (book, album, photography, sculpture, painting) on the territory of the European Economic Area makes further trading with respect of such a carrier free — it does not require the subject’s authorization of copyright. However, this does not apply to rental and lending — they are still covered by the rights of the creator of the work. The exception to the rule of exhaustion is the normative institution of droit de suite, which provides the creator with the right to remuneration for the professional resale of the original copy of his work, previously legally placed on the market and covered by the consequences of exhaustion.

Keywords: ownership of a copy of the work, proprietary property rights, placing a copy of the work on the market, exhaustion of copyright, renting and lending a copy of the work, droit de suite
JEL: K11

Przemysław Telenga

About the Claiming the Statutory Interest against an Insolvent Entrepreneur after Declaration of His Bankruptcy

Discussing the problems noticed in the legal doctrine and the judicature, the author refers to the problem of claiming the statutory interest of monetary claims against an insolvent entrepreneur after judicial declaration of his bankruptcy. The aim of this article is to present the views of contemporary representatives of the juridical doctrine and judiciaries about the possibilities and methods of claiming the statutory interest against an insolvent entrepreneur in the Polish legal system. The author prefers dogmatic and historical methods to solve the above mentioned problem de lege lata. In conclusion, the author states that it is admissible to conduct a lawsuit, but only partially, when it refers to a lawsuit for the awarding of the interest dues (for the period of time from the creditors’ insolvency is declared) on a creditors’ sums which are seeking and satisfied in the insolvency proceedings.

Keywords: insolvency proceedings, bankruptcy law, declaration of insolvency, impact of declaration of insolvency on civil litigation, bankrupt debtor, statutory interest
JEL: G33, K23

Andrzej Niezgoda

Financial Autonomy of Local Authority. Remarks in the Context of
Certain Proposals of Modification of the Local Government’s Income

The article deals with the issue of breakdown of public income between central government's administration and the units of local authority. Creating units of local authority as a subject of public administration requires providing them with adequate financial resources that enable them to fulfill their task. These resources are given to local authority as a result of the breakdown of public income between central government's administration and the units of local authority. As a result, we receive the system of local authority's income that includes own revenue, general subsidy and purpose subsidies that come from state income that is regulated by Constitution and European Charter of Self-Government. One of the most basic factors that shape legal resolutions of the units of local authority that are autonomous subjects that fulfill certain public tasks (i.e., not hierarchically subjected to the central government’s administration, is their economic position). The aim of the article is the evaluation of the limitation to local authority's competence of deciding on the matter of the rate of local taxation and increasing the level of subsiding self-government by central government. The analysis of both of these proposals in the light of jurisprudence of Constitutional Tribunal leads to the conclusion that they do not go in line with the legal limits of Constitution and European Charter of Self-Government. What is more, the second one, if carried out, would mean limitation of autonomy of self-government and questioning of its economic position.

Keywords: financial autonomy of local authority, the rule of adequacy (proportionality), own revenue, rate of local taxation, compensatory procedures, purpose subsidy
JEL: H7, K23, R5

Zbigniew Kalandyk

Territorial Changes of the Rzeszów Region — Rzeszowskie Voivodship
in the Years 1944–1998

(article in English)
The article presents the territorial changes of the Rzeszowskie Voivodship in the years 1944–1998, which were frequent in this period. Initially, the reason was uncertainty about the final shape of the eastern Polish border, later changes occurred as a result of exchange of sections of borderland territories with the USSR, correction of borders with neighboring provinces and finally reforms of the administrative divisions of the state of 1975 and 1998.

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Keywords: territorial changes, Rzeszowskie Voivodship, poviat, commune
JEL: H77, H83, K23, N94

Tomasz Demendecki

Exclusion of a Judge Referred to in the Act — the Code of Civil Procedure.
Considerations Based on the Practice of Applying the Law

The right to court is one of the autonomous, fundamental rights and freedoms of each entity. Its correct implementation depends on ensuring access to an objective and just court, in which the whole bench and its individual members are impartial and objective, using the principle of independence. Among the basic guarantees of judicial independence in every court proceeding is the institution of exclusion of a judge, in relation to civil proceedings regulated in the provisions of art. 48 Code Civ.; fundamentally constructed in two ways, as the exclusion following from the law and at the request of the judge or party/participant in the proceedings. The research goal set by the author of this study remains to determine whether the request to exclude the judge referred to in the Act, the Code of Civil Procedure may be the basis for excluding a specific group of judges or all judges of a given court in abstracto. These considerations are based primarily on the analysis of jurisprudence and doctrinal views. In the civil procedure, the legislator did not regulate the institution of the “exclusion of the court,” only the individual judge can be excluded because of circumstances justifying the impartiality of the judge in the case (Article 49 of the Code Civ.). Besides it should be acknowledged de lege lata that the motion to exclude a judge may be effectively filed only with respect to the judge or judges who have been appointed to hear a particular civil case. It cannot directly affect the other judges of the court, because the judge cannot be excluded in abstracto for the future. In particular it should be acknowledged that the judges mentioned in the motion concerning exclusion of all the judges of a given court — those who had not been appointed to hear a particular case — can examine this motion as it does not concern them directly. In addition, de lege ferenda intervention by the legislator seems necessary. The legislator should find a remedy for attempts to obstruct trial by means of the use of motions to exclude a judge. It seems that in the Polish civil process even the construction of an abuse of procedural law could significantly affect the solution of the problem of filing, in civil proceedings, unreasonable motions that are deliberately intended to delay the ongoing civil proceedings.

Keywords: the right to court, judge independence, procedural guarantees of judicial independence, impartial court, objective judge, exclusion of a judge, motion to exclude a judge, “exclusion of court,” abuse of procedural law, process obstructing
JEL: K1, K41

Marta Grzeszczuk

The Problems of Social Control in the Context of Forest Management Plans

(article in English)
Obligations to protect forest land form part of the obligation to protect the environment. Planning instruments are one of the most important legal institutions for protection of forests. The public administration has been equipped with competence to undertake planning activities in the field of forest management. At the same time, planning acts are among the most controversial issues. One of these is the act of forest management planning, which is a key planning instrument for forest management. The paper presents current views on the nature of forest management plans. In connection with the growing environmental awareness, more and more attention is paid to the issue of legal regulations for instruments of social control in the field of environmental protection law. The aim of this study is therefore to analyze the legal instruments enabling the implementation of social control in the field of forest management planning.

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Keywords: forest management plan, social control
JEL: K10, K19, K40, L52, Q23, R58