Review of European and Comparative Law

Duty of loyalty and due care of the board member under Polish law

Piotr Pinior — 2022-12-15

Duty of loyalty and due care of the board’s members have been lately introduced to the provisions of the Polish Commercial Companies Code. This paper aims to define the duty of loyalty and due care of the board members, as presented in the Polish doctrine, as well as in the British, Spanish, and German laws. Additionally, the impact of the new provisions on the liability of the board members shall be described.

Interest of the Company- the Discussion on Axiological Choices

Robert Stefanicki — 2022-12-15

The obligation to act professionally and loyal to the managed corporation is a statutory component of the organizational relationship and expresses the essence of these bonds and the sense of entrusting the values of the company to these hubs for the purpose of its proper management. The sources of the administrator’s duties cannot be limited to respecting statutory injunctions and prohibitions, since they designate only border points. They do not constitute a casuist regulation of all situations. Assuming the legislator’s praxeological and axiological rationality in the process of legislating, it would be necessary to involve a lack of due professional diligence on the basis of civil law liability. However, most courts, as well as the majority of the representatives of doctrine, do not recognize the basis of this responsibility in the mere failure to observe the standards in question, regardless of the seriousness of negligence or inefficiency in the exercise of functions.

Social Enterprises, Cooperatives or Benefit Corporations? On Reconciling Profit and the Common Good in Doing Business from a Polish Perspective

Justyna Dąbrowska — 2022-12-15

The aim of the article is to demonstrate that economic, technological and social changes, also thanks to the principle of sustainable development, lead to the transformation of existing and the emergence of new hybrid forms of conducting business activity. On one hand, there is a noticeable expansion of social economy mechanisms that reflect an ‘economic’ approach to providing broadly defined goods and services in the public interest, and there is also resurgence of democratic member-based organizations (DMOs), such as cooperatives with their dual nature and social and economic dimensions. On the other hand, traditional forms of for-profit business are transforming into entities that integrate social and environmental goals into business, known as Sustainability-Driven Hybrid Business Models (SHBMs), and of which benefit corporations (like U.S. Benefit Corporation or Social Purpose Corporation, Italian Societ. Benefit or French Soci.t. . mission) are an example. The transformation and emergence of these qualitatively new organizations is an illustration of the process of creative destruction described by Joseph Schumpeter. The article presents advantages and disadvantages associated with the benefit corporations. The analysis is concluded with the open question of whether legislative intervention is needed in this area, in particular whether it would be expedient to introduce ‘mission companies’ in Poland.

The Principle of Reliability of Business Trading in the Context of Personal Changes in Partnerships

Konrad Garnowski — 2022-12-15

The article presents the issue of personal changes in partnerships from the perspective of dangers to the interests of partners of such partnerships and third parties. The analysis is carried out primarily in the context of the norms concerning the national court register, but also the relevant regulations of the Code of Civil Procedure. On this basis, the author evaluates the current regulations and concludes that they pose significant dangers to both partners of partnerships and creditors as third parties. These dangers arise mainly from the way the system of presumptions provided for in the provisions of the Act on the National Court Register is shaped. The author refers to the de lege ferenda postulates expressed in the past and selects the optimal solution from the perspective of implementation of the principle of reliability of business trading, and also presents his own de lege ferenda proposals. In the author’s opinion, in order to secure the interests of a partner withdrawing from a partnership against the risk of attempts to hold him/ her liable for obligations arising after his/her membership in the partnership has ceased, it would be sufficient to grant such a person the right to file an application to remove him/her from the register of entrepreneurs as a partner of the partnership. On the other hand, in order to safeguard the interests of third parties, it would be advisable to broaden the scope of application of the norm arising from Article 14 of the Act on the National Court Register and subject the former partner of a partnership to the rigors of this regulation. In addition, in order to ensure greater transparency of the data disclosed in the register, in the author’s opinion, it is advisable to consider the possibility of introducing, within the framework of the register of entrepreneurs, an institution similar to that provided for on the grounds of land and mortgage register proceedings, concerning the obligation of the court to disclose ex officio an identified inconsistency of the actual state of affairs with the state of affairs disclosed in the register of entrepreneurs.

Procedural Flaws of Shareholders’ Resolutions – a Comparative Approach

Roman Uliasz — 2022-12-15

The paper discusses legal consequences of violations of law which may occur in the course of passing resolutions by shareholders or when convening the meeting. Such violations take the form of procedural infringements, as opposed to material defects which concern the subject matter of the resolution. Several jurisdictions were taken into account in order to demonstrate that illegality of the procedure does not need to imply nullity of resolutions. There are various instruments which, despite illegality, are intended to preserve the resolution. This is all about the balance of preferences: in company law there are definitely situations where legality should be less valued than stability and certainty.

A Parent Company’s Liability for Anti-Monopoly Damages to its Subsidiary’s Creditors Considering the New Regulations of Corporate Groups

Beata Wieczerzyńska — 2022-12-15

The operations of a corporate group managed by a parent and guided by a shared strategy and interests of the group may in some cases cause damage to a subsidiary’s creditors. This study will in particular focus on the liability towards creditors for anti-monopoly damages caused by a breach of competition laws and not resulting from the binding orders of a parent company to its subsidiary. It is especially important to establish if and possibly how a parent’s liability arises for antimonopoly damages to its subsidiary’s creditors where it’s not related to a binding order, considering the special regulations of liability for damages caused by breaches of competition laws in the context of the new regulations of corporate groups.

Legal Aspects of the Supply Chain Cybersecurity in the Context of 5G Technology

Agnieszka Besiekierska — 2022-12-15

The 5G networks are considered to be crucial for the digital transformation of the economy and society and therefore will be subject to the regulations concerning the supply chain cybersecurity. Numerous European documents point out cyberthreats relating the supply chain and oblige the Member States to introduce laws enabling risks assessment of suppliers, which, in accordance with the EU Toolbox, should cover technical and non-technical factors such as dependence of the supplier from third countries. So far, Poland has not introduced regulations in this respect and provisions on recognition of high-risk suppliers to be implemented in the Act on national cybersecurity system are still in the draft phase. The key criterion for the risk assessment will be a threat to the national security, which is vague and may in the future be difficult for interpretation due to the specifics of the proceedings (limited right to participate in the proceedings, limited access to information). As the effects of the proceedings are far-reaching (the obligation to withdraw the products), they may potentially raise some concerns with regard to the freedom of economic activity. The new cutting-edge technologies such as 5G, as well as the need to ensure cybersecurity along with the on-going political polarization in the world will increase the amount of legal regulations relating to the supply chain cybersecurity.

Corruption and Human Rights in the Case Law of Inter-American Human Rights Treaty Bodies

Edyta Lis — 2022-12-15

The first attempts to combat corruption date back to ancient times and had mainly moral connotation. Despite being an old phenomena, nowadays it takes new shapes and becomes a more common feature of social life, especially in the Latin America region. Corruption is a complex, and multidimensional phenomenon that negatively impacts human rights on many levels. Therefore, serious effort have long been made at global, regional and state levels to combat corruption. The United Nations and regional organizations have adopted numerous non-binding and binding documents with a view to stifling this phenomenon but none of them refer to the issue of impact of corruption on human rights. But it should be stressed that it is very hard to establish a link between corruption and human rights violations. Some efforts has been made by the Inter-American Court of Human Rights (IACHR) and the Inter-American Commission on Human Rights (IAComHR). This article considers whether and how the IACHR and the IAComHR establish the link between corruption and violation of human rights in the inter-American system. It also determines which groups of people are, according the IACHR and the IAComHR, particularly affected by corruption, what measures should be taken to protect those exposed to acts of corruption, what obligations are incumbent on States with a view to preventing, combating and eradicating corruption.

National self-governments in Hungary and Serbia in the context of public power decentralising solutions

Andrzej Adamczyk — 2022-12-15

The aim of the paper is to verify a thesis according to which countries which are considered to be the most representative examples of implementing the national cultural autonomy concept (Hungary and Serbia) in fact use the construct of national minority self-government, which, according to administrative law commentaries, is classified as non-territorial, or special self-government. In order to fulfill this task two decentralisation solutions which are aimed at pursuing national and ethnic minorities’ ambitions to maintain and enhance their cultural identity: national minority self-governments and national cultural autonomy has been presented. These legal constructs are not equivalent, although in international literature on the subject they are often treated as synonyms. In this context Serbian and Hungarian regulations has been presented and assessed.

Land-Sea Interactions in Realisation of Ecosystem Approach in the Marine Spatial Planning in the Baltic Sea Region – Polish Perspective

Tomasz Bąkowski — 2022-12-15

Maritime spatial planning has become on of the fundamental instruments of managing human activity at the sea. It is mostly due to the rising competition for marine space, which is a consequence of rising number and variety of uses of the sea. Among the principles of marine spatial planning ecosystem approach as well as the taking into account the interaction between land and sea seem to play the most important role. First one is more general and axiological in it’s nature, while the second functions more as technical guide for planners. Together they can be called guiding principles of marine spatial planning. Ecosystem approach is a concept closely related to ecosystem services. It’s main aim is to sustain the productivity of ecosystems in the field of ecosystem services, what is often connotated with the health of the marine ecosystem. Multiple correlations between land and sea can be easily seen in the managerial goals of the marine ecosystem. Trophic relations seems to be reflected in legal regulations, but the question remains if the marine spatial planning regime really reflects the interactions between land and the sea.

Gloss to the Supreme Court’s decision of 15 June 2022, II CSKP 509/22

Maciej Rzewuski — 2022-12-15

This paper is an attempt at a polemic with the position of the Supreme Court expressed in the cassation case II CSKP 509/22. The subject matter discussed in the paper is of great importance, particularly from a practical point of view, and concerns the issue of the (im)possibility of establishing the date of a will in a situation where doubts arise as to the relation of this will to another will which is dated. The considerations take into account not only the achievements of Polish doctrine, but also - for the sake of comparison and in order to find the best possible model for proceedings in this type of case - the solutions functioning in foreign legal systems (mainly German and French).