Transmission Easement and Adverse Possession of Transmission Easement in the Polish Law

The object of analysis in the text are the issues concerned with the transmission easement and the adverse possession thereof on the grounds of the Polish law. The text features: (1) a historical outline of the solutions concerned with easements in the Polish law following 1945, (2) the institution of transmission easement introduced in 2008 and the solutions concerned with the claims for the establishment thereof at court, (3) the institution of adverse possession of transmission easement pursuant to civil law regulations, judicature and the legal doctrine. On account of the need to elaborate the wide-ranging legal issues concerned with the transmission easement in this text, the analysis embraces two research questions giving rise to the following conclusions: (1) What function is performed by the institution of transmission easement in the system of civil-law relations in the Polish law? The legislator in the articles introducing a transmission easement ossified the solutions functioning in the judicature of the Polish courts before 2008. The legal interpretation took a turn for clarification, that is for the establishment of a norm in the situation where its comprehension was dubious. It is noteworthy that in the period prior to 2008, the law provided for easement appurtenant, and on account of the usual course of judicial decisions also for easement appurtenant with the content corresponding to transmission easement. In 2008 these two “legal existences” were supplemented with a transmission easement, which nevertheless failed to resolve all the legal problems; nay, this gave rise to even more problems, e.g. the one of non-establishment of interpolar norms which would address the issues arising in connection with the use of various easement institutions in legal transactions. While amending the civil law, the legislator aimed to bring order to legal transactions by streamlining the unregulated actual state of easement in relation to transmission infrastructure, but also in relation to the situations where an easement was yet to be established and a facility yet to be constructed. Thus, such action is intended to regulate the disorderly legislation in force as well as to safeguard investment processes. This is of particular significance, for example, for energy companies which are burdened with statutory public-law obligations as regards securing energy supplies and providing for the development of energy infrastructure. Hence, the de facto introduced civil-law solutions indirectly served to realise the principles of the doctrine of easement in the public interest. (2) What legal problems in the civil-law relations does the application of the institution of transmission easement by adverse possession entail? On account of the functioning of various institutions of easement, that is (1) an easement appurtenant, (2) an easement appurtenant with the content corresponding to a transmission easement, and as of 2008 (3) a transmission easement, a problem arose as to which of the given easements companies exercised in particular periods, all the more so because before 1989 the State Treasury owned them and many of the transmission facilities were put in place by virtue of administrative decisions. The commonly held belief is that in the period of “society-oriented economy” as well as up to 2008 infrastructure companies could exercise an easement appurtenant which corresponded to the content of a transmission easement. Therefore, in such a case the running of the prescriptive period should allow for the general rules laid down for an easement appurtenant. Apart from the problem of the relation of a capacity to exercise a right to property and the free development of civil-law relations before 1989, the recognition of the running of prescriptive periods – given the functioning of the three various easements as legal institutions – became a significant legal problem. By way of illustration, the recognition – against the period of exercising transmission easement – of the period required for the acquisition thereof by adverse possession, whereby before 3 August 2008 the real estate featured the legal state corresponding to the content of this right, is debatable. One cannot recognise that within that period a transmission easement was exercised, because such a right was not in existence as yet. Therefore, the institution that might be employed is the running of the period as regards the adverse possession in relation to an easement appurtenant with the content of a transmission easement. Still, the problem remains as to whether the period of the exercise of the easement appurtenant with the content corresponding to a transmission easement can be recognised against the period of possession required for the adverse possession of a transmission easement pursuant to the regulations introduced in 2008. One might incline to the position whereby in such a case it would be right to fully recognise – against the period of exercising a transmission easement – the period of exercising an easement appurtenant corresponding thereto in respect of its content. That being so, the adverse possession of a transmission easement might ensue in such a situation on 3 August 2008 at the earliest, that is the moment the regulations governing this right come into effect. Conversely, if the prescriptive period expires before that date, the entrepreneur would acquire an easement appurtenant with the content corresponding to the transmission easement. Such an interpretation is aligned with the purpose intended by the legislator, which is to bring order to the actual state of the broadest scope with the aid of a new legal instrument. The text, while analysing the issue of a transmission easement and an adverse possession thereof as a institution of the civil law, presents only some selected problems. Hence, the analysis does not include, for example, the issues concerned with claims for remuneration (for usufruct without contractual basis or usufruct fees), or claims for compensation (redress or amends). Furthermore, the text does not conduct a more profound analysis of the relation between the provisions regulating public-law relations (e.g. acts of law introducing the institution of dispossession) and the provisions regulating civil-law relations (the easements in question).

Udział stowarzyszeń zwykłych w postępowaniu sądowoadministracyjnym w sprawach z zakresu ochrony środowiska – analiza rozbieżności w orzecznictwie

Participation of unincorporated associations in court and administrative proceedings is a tool of public participation which is a part of basic principles of performance of a democratic country and a civil society. By means of abiding by those principles administrative bodies and courts respect the rule of law and it becomes a standard. The rule of public participation can be as well treated as a part of the basic civil rights stipulated in the Constitution. By respecting the right of unincorporated associations to participate in court and administrative proceedings in environmental protection-related cases the goals and functions of environmental protection law can be accomplished.

Charakter prawny spółki cywilnej na tle historycznym i prawnoporównawczym

Wydział Prawa i Administracji

Bogusław Śliwa (1944-1989) - działacz opozycji demokratycznej i "Solidarności" w Kaliszu

Bogusław Śliwa was born in Lvov on 6 October 1944. He graduated in law studies at Adam Mickiewicz University in Poznań in 1969. Following the completion of his prosecutor’s apprenticeship he worked, among others, in Wolsztyn, Świebodzin and – from 1975 – in Kalisz. On 22 August 1978 Śliwa was fired from the public prosecutor’s office because he had attempted to detect a person who murdered during the robbery committed by a Civic Militia officer. That time he established and maintained close contacts with activists of the Workers’ Defence Committee (KOR), among others: Jacek Kuroń, Mirosław Chojecki, Adam Michnik, Bronisław Geremek, Jan Lityński, Zofia Romaszewska and Zbigniew Romaszewski. In 1978 he began to cooperate with the Kalisz group of the Movement for the Defence of Human and Civil Rights (ROPCiO). In the early 1979 this group started to publish “Wolne Słowo” in which Śliwa was a co-editor. On 28 June 1979 in Poznań he was involved in founding the Social Self-Defence Club of the Wielkopolska and Kujawy Region. In September 1980, during strikes at the FWR “Runotex” and KZKS “Winiary” in Kalisz Śliwa was an expert representing the workers. On 29 September of that year, he arranged in Kalisz a meeting of representatives and delegates of enterprises in Kalisz aimed at appointing the Board of the Inter-Enterprise Founding Committee of the Independent Self-Governing Trade Union. He became the secretary. Bogusław Śliwa also engaged in setting up and developing an information team. He was informally responsible for developing an information and printing base. Bogusław Śliwa set up “NSZZ Solidarność” magazine where he published his own articles. He also founded the “Solidarność” Workers’ Community Centre in Kalisz. it is noteworthy that it was the only community centre in Poland established by „Solidarność”. In December the Nationwide Liaison Commission of „Solidarność” appointed him to the Committee for the Defence of Prisoners of Conscience established on 10 December of that year. He participated in the information meeting of the Independent Self-Governing Trade Union of Independent Farmers “Solidarność Wiejska” held in Staw, in Szczytniki commune. During that meeting “Solidarność Wiejska” led by Mieczysław Walczykiewicz requested the authorities to liquidate the “Świt” Agricultural Production Cooperative in Cieszyków, in Szczytniki commune. Bogusław Śliwa was involved in this successful event. It was the first liquidation of cooperative in Poland. On 11 January 1981 Śliwa co-organized the 1st Regional Convention of „Solidarność” Wiejska in Kalisz. Following the so-called Bydgoszcz events of 19 March 1981 he advocated the general strike. Due to his attitude, Śliwa was listed as one of 146 „Solidarność” activists executed by the 3rd “A” Department of the Ministry of Internal Affairs. According to the authorities those activists presented radical views. On 30 June 1981 at the 1st General Delegates Convention of the Kaliskie province, Śliwa, as a delegate of the Kaliskie province, was appointed to the Regional Board of „Solidarność” – Southern Wielkopolska. In July Śliwa set up in Kalisz the underground branch of the Polish Democratic Party. In 1981 Śliwa was a delegate to the 1st National Delegates Convention of „Solidarność” and co-edited with Jan Lityński the document entitled: “Message to the Working People of Eastern Europe” originated by Henryk Siciński and adopted by the 1st National Delegates Convention. On 22 November he participated in the Warsaw-held meeting founding the Self-Governing Republic Clubs “Liberty – Equality– Independence” and signed the founding declaration. On 28 of that month he co-organized with Antoni Pietkiewicz a founding meeting of the Club in Kalisz. When martial law was declared he began to hide in Kalisz. Śliwa was arrested on 25 February 1982 and interned in Ostrów Wielkopolski and then in Gębarzew and Kwidzyn. After being released on 25 November 1982, he was immediately involved in the activity of the underground movement of „Solidarność”. He edited the first two issues of “Nasza Solidarność” magazine published in Kalisz. Śliwa co-invented and co-organized the 1st May march that was independent from the authorities’ one held in Kalisz in 1983. Consequently, he was temporarily arrested and detained in Ostrów Wielkopolski. On 7 June 1983 he was released from custody. The amnesty declared on 21 July 1983 caused that the investigation against him was discontinued. In July of the same year he co-founded the Inter-Regional Coordination Commission of the Independent Self-Governing Trade Union “Solidarność” Kalisz-Konin-Sieradz. As he could not find any work and he and his family were exposed to psychological harassment, he emigrated to Sweden on 30 December 1983. He worked, among other positions, as bookbinder. He was the board secretary of the Congress of Poles in Sweden. In 1984 he commented the death of priest Jerzy Popiełuszko in “Dagens Nyheter” daily. He was also interviewed by Radio Liberty. Śliwa commenced cooperating with representatives of the „Solidarność” Coordination Office in Paris, Brussels and Stockholm. On 18 April 1985 the Military Garrison Prosecutor’s Office in Wrocław initiated investigations against Śliwa, charging him with activities detrimental to political interests of the People’s Republic of Poland. Subsequently, on 10 July 1985 this public prosecutor’s office decided to issue an arrest warrant for him. On the same day the public prosecutor suspended criminal proceedings against him. In December 1985, after the courageous escape of two brothers, Adam and Krzysztof Zieliński, from Poland to Sweden, he helped them prevent their deportation and stay in their new homeland. He expressed his opinion on this issue on Swedish television and in “ Dagens Nyheter” daily. His intervention helped them legally stay in Sweden. In 1989 he arrived in Poland. During this short visit he met and talked with his colleagues from the so-called first „Solidarność”. Bogusław Śliwa died in Stockholm on 23 November 1989. He was buried there on 7 December 1989. On 18 October 2006 he was posthumously honoured by Lech Kaczynski, President of Poland, with the Order of Polonis Restitution. On 15 June 2007 Bogusław Śliwa was posthumously granted the title of an Honorary Citizen of Kalisz by the Town Council of Kalisz.

Glosa do postanowienia Naczelnego Sądu Administracyjnego z dnia 13 stycznia 2016 r., sygn. akt II GZ 927/15

W glosowanym orzeczeniu Naczelny Sąd Administracyjny stwierdził, że od postanowień wojewódzkich sądów administracyjnych odrzucających skargi z przyczyn formalnych w sprawach wszczętych przed dniem wejścia w życie nowelizacji Prawa o postępowaniu przed sądami administracyjnymi (co miało miejsce 15 sierpnia 2015 r.) przysługuje zażalenie, a nie skarga kasacyjna. Przedmiotowe zagadnienie prawne sprowadza się do właściwej wykładni źle sformułowanych przepisów intertemporalnych. W glosie zaprezentowano istotę środków odwoławczych w postępowaniu sądowoadministracyjnym i scharakteryzowano krótko ostatnią nowelizację Prawa o postępowaniu przed sądami administracyjnymi. Autor prezentuje stanowisko krytyczne w stosunku do tezy postanowienia Naczelnego Sądu Administracyjnego, wskazując, że sąd powinien rozstrzygnąć sprawę co do jej istoty. Pogląd ten został poparty odpowiednią argumentacją z uwzględnieniem konkurencyjnego orzecznictwa Naczelnego Sądu Administracyjnego.

Cywilnoprawne granice optymalizacji podatkowej w zakresie podatku dochodowego od osób prawnych (analiza struktur planowania podatkowego)

Wydział Prawa i Administracji