Table of contents

INSTITUTIONAL ANALYSIS
Agnieszka Gaczyńska
Regulatory Risk Management. Part 1. Fundamentals …………………………………………………… 7

ADMINISTRATIVE SUBSTANTIVE LAW
Katarzyna Czerwińska-Koral
The concept of “running a farm” in the light of the case law of Polish courts …………………… 19
Maciej Górski
Protection of the right to privacy in e-health system …………………………………………………….. 30
Łukasz Świątek, Arkadiusz Górski
A few remarks on the definition of the beneficial owner under the Act of
1 March 2018 on the prevention of money laundering and the financing of terrorism ……… 46

PROCEDURAL LAW
Sławomir Zwolak
Parties to the administrative proceedings regarding the issuance of a building
permit decision ………………………………………………………………………………………………………. 59
Michał Celiński
Security deposit as a means of securing the investor’s claims in the event
of the granting of interim protection by an administrative court ……………………………………. 70
Łukasz Hawrylak
Legal form of decisions of the bodies of the State Sanitary Inspection on the health
safety of water treatment ………………………………………………………………………………………….. 85
Marcin Kamiński
Normative model of real estate in environmental protection law and its significance
in the context of modifications to the subjective rules of general administrative
proceedings in the matters of environmental impact assessment …………………………………….. 99
Tadeusz Kiełkowski
Course of instance in resumed administrative proceedings ……………………………………………113

BUSINESS ACTIVITY LAW
Krzysztof Koźmiński, Barbara Błaszczak
Violation of the interests of entities not being parties to the contract of carriage
of goods conducted under the Agreement on International Railway Freight
Traffic (SMGS) – analysis of available legal instruments ……………………………………………….128
Anna Nowakowska
A Comparative Legal Perspective on the Protection of Entrepreneurs’ Rights
in Preliminary Investigations Preceding Antitrust Proceedings ………………………………………141

ADMINISTRATION SYSTEM
Dawid Sześciło
Participation of the local self-government in the legislative process:
from the constitutional grounds to institutional mechanisms ………………………………………..154

GLOSSES
Adam Bochentyn, Michał Miłosz
Resolution of the application of a social organization to initiate general administrative
proceedings. Commentary on the ruling of the Supreme Administrative Court
of 18.04.2024, III OSK 1116/23 ……………………………………………………………………………..167

Jan Ciechorski
The commentary on the judgment of the Voivodship Administrative Court
in Warsaw of 22.01.2020 r., VII SA/Wa 2643/19 ……………………………………………………….177
Tomasz Nowak
Subject matter scope of RTV subscription fees. Commentary on the judgment
of the Supreme Administrative Court of 7.03.2023, II GSK 94/20 ……………………………….185
Anna Wierzbica
Commentary on the ruling of the Supreme Administrative Court of 31.05.2022 r.,
III OSK 3615/21 ……………………………………………………………………………………………………195

REVIEWS
Joanna Kotulska
XV Krakow-Wroclaw Scientific Meeting of Administrativists “The Future
of Administrative Law. Water as a good in administrative law”, Dobczyce,
September 28–29, 2024…………………………………………………………………………………………..207

Agnieszka Gaczyńska

Regulatory Risk Management. Part 1: Fundamentals

Abstract

A dynamic economic environment forces enterprises to analyse regulatory risk, understood as uncertainty arising from changes in laws, policy documents, regulatory excess, fragmentation, or gaps. This article highlights the necessity of a holistic approach to the sources of law-making, taking into account political, social, economic, technological, and international factors. Sources of risk occur at every stage of the legislative process and may stem from policymakers’ intentions, stakeholder pressure, lack of consultations, or limited time for drafting legal acts. Regulatory risk factors may lead to increased operational costs, reduced innovativeness, investment barriers, and a weakened strategic advantage of enterprises. Therefore, it is essential to design stable and predictable regulations that balance the protection of the public interest with the requirements of economic development.

Katarzyna Czerwińska-Koral

The concept of „running a farm” in the light of the case law of Polish courts

Abstract

The legislator uses the concept of „running a farm” in agricultural law regulations. Reference to running a farm can be found even in the very definition of a farm in the Civil Code. It also appears, for example, in the provisions of the Act of 11 April 2003 on the shaping of the agricultural system, the Act of 20 December 1990 on social insurance for farmers and others. At the same time, there is no legal definition of the concept of „running a farm”. Running a farm is not the same as owning a farm or possessing a farm. Running a farm is also not synonymous with conducting agricultural activity. Importantly, the concept of running a farm is not legally neutral. Running a farm determines the legal situation of entities of agricultural law, entitles or obliges. For these reasons, an attempt is made to define the concept of running a farm in the case law of both the Supreme Court and common courts, as well as administrative courts. The article aims to present the most important judgments concerning running a farm in order to learn the scope of this concept. There are three noticeable directions of case law in this area: 1) indirect definition of the concept of „running a farm” or specifying the characteristic features of this concept; 2) characterizing „running a farm” by referring to the narrower concept of „personal running of a farm”; 3) characterizing „running a farm” by linking it with the concept of agricultural activity. In summary, based on the analysis of judgments, the features of running a farm will be identified and a proposal for a definition of the concept of „running a farm” will be presented.

Maciej Górski

Protection of the right to privacy in e-health system 

Abstract

In recent decade, Poland has experienced a significant acceleration in the digitalization of healthcare. As a result, the state’s knowledge of citizens’ health conditions has grown substantially. This article analyzes the legal framework that underpins the functioning and processing of data within the e-health system. The starting point for this analysis is the concept of informational autonomy, as well as patients’ rights and standards outlined in the General Data Protection Regulation (GDPR) and the Constitution. The article discusses several provisions that raise concerns regarding privacy protection, particularly the lack of an option for individuals to prevent the processing of their health data in the central government database, even in cases where healthcare services are privately funded.

Łukasz Świątek, Arkadiusz Górski

A few remarks on the definition of the beneficial owner under the Act of 1 March 2018 on the prevention of money laundering and the financing of terrorism

Abstract

The article discusses the basic elements of the definition of a beneficial owner. On the grounds of the AML Act, this definition is of fundamental importance in determining how to fulfill the obligations of obliged institutions, while at the same time posing problems of interpretation. The article organizes the previous positions of the doctrine, while presenting the authors’ view on how to identify the beneficial owner of legal entities due to their ownership structure. The article mainly discusses problems related to the identification of the real beneficiaries of multi-level ownership structures of legal entities. In particular, in the authors’ opinion, Article 2(2)(1)(a), first indent, of the AML Act applies only to direct ownership of shares in a capital company and does not cover the state of indirect ownership. On the other hand, the concept of control under Article 2(2)(1)(a) third indent of the AML Act refers to situations in which an individual meets the definition of a general or specific beneficial owner in relation to a legal entity or legal entities, controlling the entity under examination for a beneficial owner under the aforementioned regulation.

Sławomir Zwolak

Parties to the administrative proceedings regarding the issuance of a building permit decision

Abstract

The change in the definition of the impact area of a building and the resulting limitation of the scope of parties to the procedure for issuing a building permit is of significant importance for the investment and construction process. The legislator’s deletion of the phrase „in development” means that the area of impact of the facility concerns real estate on which the implementation of the facility will result in restrictions on its free development. The limited scope of the concept of the facility’s impact area translates into the legal situation of owners of neighboring properties, in that the protection of property rights under the Civil Code will be sought in civil proceedings.

Michał Celiński

Security deposit as a means of securing the investor’s claims in the event of the granting of interim protection by an administrative court

Abstract

The security deposit for the investor’s claims, which is a special solution in relation to the general rules governing the granting of interim protection in administrative court proceedings, is a very interesting legal institution which may be used primarily in a case involving a complaint against an administrative decision on a construction permit, but also in a case involving the determination of the location of a regional broadband network. It emphasises the investor’s interest, thus balancing the position of the parties to the appeal proceedings referred to in Article 61 § 3 p.p.s.a., by not transferring to him the entire risk of suspending the execution of the decision in a situation where it is not known what the final outcome of the proceedings before the administrative court will be. The article will outline the purpose and function of the aforementioned regulation, as well as the rules of determining the amount and the deadline for payment. The analysis of sixteen cases in which the court applied the discussed legal institution was helpful for this purpose. Moreover, the author will present selected procedural issues, both at the stage before the voivodeship court and the Supreme Administrative Court, including the issue of applicability of Article 61 § 4 of the Code of Civil Procedure on securing claims, as well as the issue of appeal measure.

Łukasz Hawrylak

Legal form of decisions of the bodies of the State Sanitary Inspection on the health safety of water treatment

Abstract

A special place in the system of supervision of the quality of water intended for human consumption is given to preventive measures taken by the State Sanitary Inspection authorities. However, the substantive regulations do not specify the legal form of hygienic assessment and consent to the use of new water treatment technologies, which raises doubts about the admissibility of the authority’s adjudication by decision. The purpose of the article is to analyse the material features of the institution of hygienic assessment and consent through the prerequisites of admissibility of the administrative decision.

Marcin Kamiński

Normative model of real estate in environmental protection law and its significance in the context of modifications to the subjective rules of general administrative proceedings in the matters of environmental impact assessment

Abstract

The essential aim of the article is an legal-dogmatic analysis of the issue of normative shaping of the conceptual model of real estate in matters of environmental impact assessment in the light of normative models of real estate in administrative law and environmental protection law, with particular emphasis on the impact of these models on the subjective rules of administrative proceedings. The considerations propose a conceptual division of two basic normative models of the real estate regulation in administrative law: non-autonomous models (based on civil law approaches) and autonomous models. The conclusion that the legislator has constructed a complex normative model of real estate in environmental protection law, which is characterized by the dominance of autonomous regulatory approaches that are subordinated to the objectives of environmental law norms, has been justified. The consequence of the application of autonomous models in substantive law are modifications to the subjective rules of general administrative proceedings. The conducted analysis has shown that particularly strong modifications of procedural rules occur against the background of the autonomous real estate model in matters of environmental impact assessments. In the matters of this type, the legislator has in fact created a special procedural regime which, at least to some extent, violates the constitutional standard of administrative proceedings (primarily in the scope of the right to participate in the proceedings).

Tadeusz Kiełkowski

Course of instance in resumed administrative proceedings

Abstract

The subject of the compilation regards the conditions of the course of instance in resumed administrative proceedings. The analyses concern the decisions concluding the resumed proceedings, prerequisites for admissibility of appeal, the scope of the appeal proceedings and the ruling of the second instance authority. In the view of the established facts, the crucial significance is attributed to the opportunity to jointly considerate and resolve a verification case in resumed proceedings and an administrative case within the substantive meaning. It implies the existence of various courses of instance, as depending on the scope of the decision of the first-instance authority it covers either one or both of these cases. As a consequence, the rulings of the appeal authority also become specific, for they deviate from rulings made in ordinary proceedings with regard to prerequisites and scope. In particular, the appeal authority encounters significant limitations within the power to amend decisions.

Krzysztof Koźmiński, Barbara Błaszczak

Violation of the interests of entities not being parties to the contract of carriage of goods conducted under the Agreement on International Railway Freight Traffic (SMGS) – analysis of available legal instruments

Abstract

The aim of this article is to analyze the legal instruments provided under international law that may be utilized by entities that are not parties to a transport contract conducted under the Agreement on International Railway Freight Transport (SMGS) in the event of a violation of their interests by other transport participants, particularly in light of the identified practices of Belarusian carriers. The analysis indicates that SMGS currently does not provide adequate protective measures in this regard. Meanwhile, the Convention on International Railway Traffic of OSJD, although introducing certain regulations for protecting the interests of transport participants, does not address cases of the instrumental use of SMGS provisions in a manner formally compliant with the agreement but inconsistent with its objectives. The Vienna Convention on the Law of Treaties offers protective measures only for states, thereby excluding their applicability to economic entities. Therefore, it is necessary to initiate a discussion on the insufficient legal protection of non-contracting parties under SMGS, which could lead to better regulation of this issue.

Anna Nowakowska

A Comparative Legal Perspective on the Protection of Entrepreneurs’ Rights in Preliminary Investigations Preceding Antitrust Proceedings

Abstract

The study of criminal law serves as an inspiration for creating competition law institutions. The aims and legal nature of preliminary proceedings are similar to those of investigative proceedings in criminal procedure. The differing resolution of the scope of admissible evidentiary actions, along with subsequent changes in law and the practices of conducting proceedings before the President of the Office of Competition and Consumer Protection, lead to the conclusion that the original legislative intent has been abandoned. Preliminary proceedings are no longer a tool for an initial verification of allegations against an entrepreneur and determining the legitimacy of further proceedings. During preliminary proceedings, the majority of evidentiary actions are conducted, making them now equivalent to an investigation or inquiry. This raises serious concerns about the adequate safeguarding of fundamental rights for entrepreneurs.

Dawid Sześciło

Participation of the local self-government in the legislative process: from the constitutional grounds to institutional mechanisms

Abstract

The aim of the article is to analyse the constitutional foundations of the local self-government’s right to consultation, i.e. the obligation of central authorities to seek the opinion of local government bodies in decision-making processes, especially legislative procedure, in matters affecting the functioning of local government. In the first part, the analysis focuses on establishing – based on the provisions of the Constitution of the Republic of Poland and the European Charter of Local Self-Government – constitutional guarantees of the consultation rights of local self-government units. Subsequently, taking into account a set of criteria developed mainly on the basis of documents of the Council of Europe, the implementation of the local government right to consultation in the relevant legislation, was assessed. This analysis demonstrates the existence of only fragmentary, vague and general regulation of the consultation rights of local government representation in the legislative process. Moreover, it was indicated that the violation of consultation rights especially in the light of the established case law of the Constitutional Tribunal, does not imply violation of the constitutional requirements. This hinders of effectiveness of the legal guarantees of right to consultation.

Adam Bochentyn, Michał Miłosz

Resolution of the application of a social organization to initiate general administrative proceedings. Commentary on the ruling of the Supreme Administrative Court of 18.04.2024, III OSK 1116/23

Abstract

The study is a commentary on the judgment of the Supreme Administrative Court, in which the court referred to the procedure for considering the application of a social organization to initiate general administrative proceedings. The authors share the court’s view that if the factual circumstances of the case provided by the social organization may constitute a basis for initiating jurisdictional proceedings, the request should be resolved in the form of a ruling pursuant to Article 31 § 2 of the Code of Administrative Procedure. Therefore, it is unacceptable to deal with it under the provisions of Chapter VIII of the Code of Administrative Procedure. The authors also commented on the grounds for issuing a ruling refusing to initiate proceedings at the request of a social organization, referring such a possibility only to the failure to meet the conditions formulated in Article 31 § 1 of the Code of Administrative Procedure and the inadmissibility of initiating administrative proceedings for procedural reasons.

Jan Ciechorski

The commentary on the judgment of the Voivodship Administrative Court in Warsaw of 22.01.2020 r., VII SA/Wa 2643/19

Abstract

Medical entities are entilted to charge fees for meals and accommodation in the indicated facilities, but only in the amount specified in the Act. Charging higher fees is contrary to the mandatory to the law regardless of the basis for establishing a higher fees (contract, internal regulation of the medical entity). Such actions should be classified as a violation of the collective rights of the patient, as this applies to both patients who use these services and potential patients. The introduction of higher fees means for some patients access to health services will be impossible, or at least more difficult.

Tomasz Nowak

Subject matter scope of RTV subscription fees. Commentary on the judgment of the Supreme Administrative Court of 7.03.2023, II GSK 94/20

Abstract

In the justification of the judgment under review, the Supreme Administrative Court attempted to figure out the subject of the RTV subscription fee. The disputed issue was whether an LCD monitor, which, when connected to the Internet, enabled reception of television programs, could be considered as a television receiver and thus could be subject to the fee. The Supreme Administrative Court, in interpreting the provisions of the Law on Subscription Fees, failed to take into account the Article 217 of the Constitution that requires to base tax decisions on the provisions of the tax statue. For the court’s determination that an LCD monitor qualifies as a television receiver, the decisive factor was not the text of the tax statue, but the purpose of imposing this public tribute. According to the author of the gloss, Article 217 of the Constitution excludes the derivation of the obligation to pay a public tribute on the basis of functional interpretation, even in cases where ambiguous and imprecise terms are used in the statue. Thus, in this case, Article 217 of the Constitution was violated by the Supreme Administrative Court (in conjunction with Article 8(2) of the Constitution, from which the obligation to directly apply constitutional provisions derives).

Anna Wierzbica

Commentary on the ruling of the Supreme Administrative Court of 31.05.2022 r., III OSK 3615/21

Abstract

Both administrative court case law and the literature on the subject support the need to prepare justifications for resolutions issued by the decision-making bodies of local government units. A similar position is that these resolutions, even if they are not acts of local law, require the signature of the chairperson of the decision-making body. While these views are not disputed, they are not supported by generally applicable law.

Joanna Kotulska

XV Krakow-Wrocław Scientific Meeting of Administrativists “The Future of Administrative Law. Water as a good in administrative law”, Dobczyce, September 28–29, 2024

Abstract

On September 28–29, 2024, the 15th anniversary edition of the Kraków-Wrocław Academic Meeting of Administrative Law Scholars was held under the theme “The Future of Administrative Law: Water as a Public Good in Administrative Law”. During the conference, speakers affiliated with the Chair of Administrative Law at the Faculty od Law and Administration of the Jagiellonian University and the Institute of Administrative Sciences at the Faculty od Law, Administration and Economics of the University of Wrocław presented thought-provoking reflections on topics such as water as a common good and a subject of law, the use of behavioral letters as a non-authoritative form of administrative action, and the opportunities and threats associated with the use of artificial intelligence in decision-making processes within the European Union administration.