We kindly inform you that, as long as the subject affiliation of our 300.000+ articles is in progress, you might get unsufficient or no results on your third level or second level search. In this case, please broaden your search criteria.
Placing legal professions under specific regulations, which limit and formalize this kind of economic activity, interferes with economic freedom and the freedom to provide services. Such a situation can only take place whilst preserving the requirements of Directive 2006/123/EC on services in the internal market and the Constitution of the Republic of Poland.
More...
The following article presents selected provisions of the Rules and Regulations on Practicing as Legal Adviser enacted on June 13, 2015. Provisions that govern the requirements regarding the headquarters of law offices, storing law office documents, and obligations concerning compliance with statutory regulations on money laundering, have been singled out.
More...
The enactment on June 25, 2015, of the Act on Free Legal Aid and Legal Education (Dz.U. [Journal of Laws] of 2015, item 1255) constitutes a de facto crowning achievement of efforts spanning over the last ten years toward eliminating the loophole from the Polish legal order that the lack of regulations enabling natural persons of modest means to receive access to free pre-litigation legal aid financed by the state has undoubtedly created. The legislators’ intentions with regard to the statute discussed are elucidated within the standards set under international and European Union laws concerning the realization of the right to a fair trial. The legitimacy of implementing this provision, which enables access to free-of-charge, professional counsel at the pre-litigation stage, in principle does not beg any reservations. Full acceptance of the solutions adopted by the legislators does, however, give rise to many concerns – in particular from the perspective of legal advisers who fulfill tasks regarding legal protection. The enacted pieces of legislation will have a clear impact on the professional sphere of legal advisers. The impact will not only find expression in the scope of legal advisers’ duties, but also influence the entire legal services market. By creating certain specific rules for rendering free-of-charge legal aid by lawyers who are not legal advisers (advocates or tax advisors), legislators do not guarantee the quality of the legal aid these entities render by releasing them from liability for actions taken, and thus do not provide the actual fulfillment of the aims adopted under the statute. The intention behind this article is to point to the basic solutions under the statute that bring about new and heretofore unknown obligations of legal advisers.
More...
On June 22, 2015, the Supreme Administrative Court sitting as a bench of seven judges adopted a resolution, court file No. II FPS 1/15, regarding the submitted question: “May revenue from practicing a sport provided for in article 13(2) of the Act of 26 July 1991 on Personal Income Tax (Dz.U. [Journal of Laws] of 2000, No. 14, item 176, as amended) be considered a source of revenue from non-agricultural business activity provided for in article 10(1)(3) of the aforementioned Act, if it meets the criteria set forth in article 5a(6) of the same Act? The article presents issues connected with the correct classification of professional athletes’ revenue in the context of their being able to carry out business activity, as well as the former position of tax authorities and administrative courts. The article also aims to indicate the practical consequences of the above-mentioned resolution concerning the operation of the entities functioning on the sports market and the relations among them.
More...
The purpose of this article is to discuss the major legal issues that are involved in implementing innovative medical treatments based on stem cells. It contains an analysis of legal definitions of manipulated cells, non-manipulated cells and minimally-manipulated cells. It provides an outline of the administrative requirements of the European Medicinal Agency and the Polish General Pharmaceutical Inspector that apply to the authorization of medicinal products containing stem cells. It also gives an overview of the controversies over the legal character of stem cell therapies, in particular, whether they always lead to creating an advanced therapy medicinal product that requires obtaining central marketing authorization from the EMA in London, or whether there are some exceptions where possessing a manufacturing permit issued by the Polish General Pharmaceutical Inspector is sufficient to start applying stem cells therapies to patients. The articles compares various legal approaches under Polish law, European law, as well as under recent case law from the US.
More...
More than 20 years have elapsed since the Republic of Poland became a party to the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on November 4, 1950. The Polish statute of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time has been in force for over 10 years. Notwithstanding the aforementioned pieces of legislation, problems with the excessive length of proceedings remain. In the judgment of 7 July 2015 (final as of October 7, 2015 in the case Rutkowski and Others v. Poland, application nos. 72287/10, 13927/11 and 46187/11), the European Court of Human Rights held, unanimously, that there had been a violation of Article 6(1) (the right to a hearing within a reasonable time) of the European Convention on Human Rights, and a violation of Article 13 (the right to an effective remedy). The Court concluded that the situation of which the applicants complained had to be qualified as a practice that was incompatible with the European Convention and decided to apply the pilot judgment procedure. The annex to the judgment includes 591 other cases in which Poland has to work out a resolution within 2 years. In its judgments the ECHR established the criteria that should have been considered in the assessment of the length of the proceedings. The reasonableness of the length of the proceedings must be assessed in light of the particular circumstances of the case and having regard to the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what is at stake for the applicant in the litigation. This article analyses one of the criteria, namely the conduct of the applicant in judicial decision of the ECHR, and demonstrates the types of applicant conduct that may be considered a contributing factor in prolonging the proceedings. The author points to arguments that challenge the position adopted in the judicial decisions.
More...
The right to vote is one of the most important corporate rights associated with owning shares in a company. By exercising their voting rights shareholders have the opportunity to impact the operations of the company. Upon the implementation of Directive 2007/36/EC voting may be carried out also by proxy or by means of electronic communication. The changes in the exercise of voting rights introduced in recent years to the French Commercial Code may serve Polish legislators as an interesting indication of future developments. Even more so due to the fact that the Polish legal system has often taken inspiration from French solutions, particularly in the capital market domain.
More...
The provisions excluding arbitration from the scope of the Brussels I Regulation have been one of the most controversial issues during the enactment of the Recast. They have also been the subject of a number of interesting judgments by the Court of Justice. This article aims to summarize the most significant of those cases, touching on the interface between the EU jurisdictional rules and arbitration. It also attempts to assess the degree to which the regulations of the Recast are consistent with case law and whether they have the potential to change the approach adopted in judicial decisions. It concludes by arguing the view that failure to base the judgment in the Gazprom case on the effet utile rule – unlike it appears to have been the case in West Tankers – seems to be more in line with the compromise regulations of the arbitration exemption in Brussels I than in West Tankers. Regardless of whether one agrees with the West Tankers concept, it is worth noting that it does not seem to be applied in the Gazprom case.
More...
This article aims to present the issue of legal advisers’ freedom of speech, with particular focus on the problems of 1) the separation between private and professional spheres, 2) assessment of an utterance as falling within the scope of freedom of speech from the point of view of defining action, i.e. a category developed in symbolic interactionism. The aforementioned task is carried out in the following manner. Firstly, the author engages the question of why the issue of freedom of speech of the representatives of legal professions (including legal advisers) is arousing more and more interest not only in the legal community, but also among the public. Then, by referring to earlier articles, he probes the boundaries of legal advisers’ freedom of speech. Next, on the basis of judicial decisions, the author presents three types of cases in the domain of legal advisers’ freedom of speech. The problems (mentioned above) that emerge from the discussion of the aforementioned judicial decisions are examined from the perspective of defining the situation of action.
More...
Correctly formulating the grounds for an appeal that questions the factual findings made by the court of first instance requires pointing out breaches of the principles of logical reasoning and life experience, including a detailed description of the principle violated and the manner in which it was breached, as well as the means of evidence whose assessment –followingthese breaches – proved to be faulty and led to an erroneous finding of fact. Defective formulation of such grounds results in refusal by the court of appeal to verify the factual findings accepted in the challenged judgment and may have material consequences for the assessment of the proper application of substantive law, and thus affect the success of the appeal lodged.
More...
The following paper addresses aspects of tourist protection concerning the tourist as a consumer. The key issues discussed include the scope of protection, tourist rights in the event of failure to execute or improper execution of a contract for the providing tourist services, and the obligations of entrepreneurs who provide tourist services. Tourist protection is divided into two categories, namely indirect and direct protection. This article is based on a Polish statute on the provision of tourist services, and references other pieces of Polish legislation, such as the Civil Code and consumer protection law. In the conclusion, the article mentions the main features of this type of consumer protection, i.e. the casuistic character of legal regulations, administrative bodies as guarantors of tourist protection, the use of typical civil-law structures, a very broad range of options in the event of non-performance or improper performance of a contract for the provision of tourist services, and, finally, the use of specific financial products to safeguard tourist funds.
More...
The aim of this paper is to point out several legal problems that may appear during the preparation and execution of FIDIC-based contracts in Poland. Due to the Anglo-Saxon origin of FIDIC contracts and the mandatory rules of Polish law, the application of some of the FIDIC provisions in their original form brings about various consequences such as nullity of the clause itself, replacement of the clause with Polish mandatory provisions of ius cogens nature, or nullity of the whole contract. An example of such a provision is a subclause 20.1 regarding contractor’s claims against an employer. Here the issue of time bar and statute of limitations in respect to the notification of the contractor’s claim is discussed. The author also draws attention of the reader to the problems concerning translation of the original version of FIDIC contracts into Polish and arrives at the conclusion that FIDIC contracts must firstly be carefully adapted by the parties before they are applied to the Polish legal system.
More...
Fundamental guarantees of the right to good administration include the right to fair handling of every person’s affairs within a reasonable time by the institutions and bodies of the European Union. The reasonable time for concluding administrative proceedings is a constitutive premise of said right and as such should be perceived in harmony with the remaining elements of the definition of the key term “right to good administration.” The correlations pointed out in this article determine that the reasonable time frames for administrative proceedings should be assessed by taking into account the right of the party to a defense at every stage of the proceedings. The model for implementing competition rules laid down in EU treaties is based predominantly on the concept of procedural authority expressed though such legal structures as actions ex officio by a competent body, the use of measures that compel the parties to handover relevant information and documents to the competent body, and the powers to take executive decisions and measures that both have a repressive effect and shape the market behavior of enterprises. Normative structures that serve the prevention of anti-competitive practices on the internal market must be consistently coupled with the entrepreneur’s right to a defense in proceedings before competition authorities. The lack of separation between investigative and decision-making functions may lead to arbitrary decisions and failure to fully respect the requirements of fair antitrust proceedings.
More...
The article is addressed to legal advisers and concerns the key issues of penal-fiscal law that give testimony to its autonomous nature. Comprehensive knowledge of these issues impacts the quality of legal-aid services in penal-fiscal cases, which, since 1 July 2015, have also been rendered by legal advisers. This article takes on the complex matter of evaluating the Specific Part of Title I of the Penal Fiscal Code in terms of its completeness. The correct resolution of this issue entails applying the legal structure of ideal concurrence of unlawful acts provided in article 8 of the Code. What is more, this article aims to call attention to a model of waiving the punishment for perpetrators of fiscal offenses and petty offenses in operation under penal-fiscal law, by using the example of active repentance, which in the Penal Fiscal Code precedes the system of penal measures based on economic pain. This article contains proposals de lege ferenda as well as a presentation of data from the author’s own research.
More...
This article addresses the role of legal representatives of injured parties as it relates to the application of legal structures that provide the opportunity to terminate criminal proceedings without holding a trial, on the grounds of a consensus between the parties to legal disputes that arise out of criminal offenses. The choice of subject matter was inspired by amendments to the Code of Criminal Procedure that put in place a fundamental reform of criminal procedure, namely the amendment of September 2013 and the amendment of February 2015, which significantly broadened the scope of the professional powers enjoyed by legal representatives of injured parties (i.e. subsidiary prosecutors), including, needless to say, legal advisers acting in this capacity within the consensual model of judicial proceedings. Presentation of the aforementioned powers – against the structure of the procedure in which the court considers the case and adjudicates at a hearing in the course of preliminary examination – lends itself to demonstrating the impact of the injured parties’ representatives on guaranteeing the greatest likelihood of receiving substantive justice within the conditions of the above-mentioned hearings of the court.
More...
This article presents the evolution of the scope of legal aid provided by legal advisers, from the effective date of the Act on Legal Advisers until July 1, 2015, i.e. the entry into force of a significant amendment to the Code of Criminal Procedure of 2013, which prompted the amendment of the Act of Legal Advisers. In the time frame covered by this analysis, the Act on Legal Advisers was amended multiple times, which contributed to a gradual broadening of legal advisers’ professional rights. On occasion, however, the legislative process was not thoroughly thought through, as the modifications that corresponded with the will of the legislators were not followed by necessary amendments to other, related pieces of legislation, eventually leading to a lack of coherence in the legal system. In fact, changes were effected with respect to procedural law but related regulations of the statute on legal advisers – concerning the scope of legal aid rendered by legal advisers – were left unaltered. Other times, the reverse was true (e.g. in 1997). The broadening of legal advisers’ rights concerning legal representation in criminal proceedings was also a corollary of efforts to fuse the professions of legal adviser and advocate, led in 2009, which never came to fruition, in the wake of a negative assessment by the highest legal professional self-governing bodies. The final amendment (which was made while simultaneously amending the Code of Criminal Procedure – a commendable exception) was the crowning achievement of the reforms and vested legal advisers with rights to appear in criminal proceedings as counsels for the defense (beginning July 1, 2015).
More...
In accordance with the Act of 26 July 1991 on Personal Income Tax, legal advisers running law offices are entrepreneurs who derive revenue from a revenue source that is non-agricultural business activity. This category of taxpayers is entitled to deduct from revenue so-called actual tax deductible expenses, incurred for the purposes of deriving revenue, as well as securing or preserving a source of revenue, with the exception of costs specified in article 23 of the statute. Thus, a legal adviser may deduct from his or her revenue all expenses that meet the aforementioned criteria, which include, most importantly, a causal connection to the revenue generated. This eliminates the possibility of deducting a legal adviser’s personal expenses. In practice, classifying many categories of costs, which legal advisers perceive as incurred for the purposes of deriving income from the economic activity they carry out (by way of running law offices) as tax deductible expenses, is problematic. Tax authorities and administrative courts question claiming e.g. the costs of purchasing clothing, glasses, and recreation services (such as swimming pool passes) as expenses deductible for tax purposes. Similarly, certain expenses incurred in connection with education, the purchase of books, and food and beverage services are called into question. An analysis of both judicial decisions handed down by administrative courts and tax interpretations indicates that individual assessment of each of the legal adviser’s expenses from the point of view of their causal connection to the generated or expected revenue is necessary.
More...
An infringement of EU law within the meaning of article 101 of the TFEU takes place, inter alia, when a Member State requires or tolerates the adoption of agreements contrary to competition law or reinforces their effects, or deprives itself of its own state power by transferring the responsibility for making decisions that affect the economic sphere on private entities (businesses). The case study concerns national legislation pursuant to which the price of road haulage services for hire and reward may not be lower than the minimum operating costs (according to some data Polish haulers are ranked first in the international transport and cabotage). Under domestic law, the mechanisms regulating minimum prices should not conflict with the normative order of the EU. Instead, they should be compatible with EU law, in particular with Article 101 of the TFEU. The protection of road safety and the proper functioning of the carriage of goods by road for hire or reward plays an important role – from the public interest point of view – and requires measures from the EU that should be developed in line with the principle of subsidiarity, with as little red tape as possible, and selected adequately for this purpose.
More...
The Polish Labour Code regulates limits of employers’ right to collect employees’ and job applicants’ personal data. In article 221 of the Polish Labour Code, the legislators specified the type of personal data employers may demand from employees or job applicants (during recruitment). The aforementioned catalogue is fixed in order to protect the sphere of the private life of employees and job applicants and to prevent or hamper discrimination (by employers) against those persons on the basis of any criteria prohibited under Polish labour law. Many employers and some representatives of the legal doctrine espouse a belief that the catalogue of collectable data on employees and job applicants should be broadened to accommodate transformations in the labour market (especially the use of modern methods and tools in the recruitment process), the needs and interests of employers, and also the privacy of employees (job applicants).
More...
This article presents the approach to administrative fines in judgments of the European Court of Human Rights (ECHR), in particular regarding compliance of regulations adopted by the state parties with article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The author cites the circumstances in which the Court hammered out the so-called Engel criteria, in whose light the administrative fines are examined. The above-mentioned criteria include classification of the offense under domestic law, the nature of the sanctioned offense, and the severity of the possible penalty. The commonly adopted approach of the Court involves an analysis of administrative penalties in view of this text to determine whether they have the character of penal sanctions. Such classification of the penalties ensures that they meet certain requirements in order to comply with article 6 of the Convention. In principle, the imposition of administrative penalties by administrative bodies is in compliance with the Convention, but they have to be reviewed by a court competent to examine the factual and legal circumstances of a given case, and, most of all, to alter an issued decision.
More...
