Bialystok Legal Studies vol. 28 no. 4
Abstract: In comparison to the European Convention on Human Rights, the EU Charter of Fundamental Rights, which provides in its Article 16 for the freedom to conduct a business, is a much more modern instrument. In this article I argue that the Convention nevertheless appears to be no less important a document offering protection of entrepreneurs’ rights. This is the case even though it does not provide any particular rights devoted to the running of a business by entrepreneurs. This is possible, first of all, due to the right of individual application which may be lodged directly with the European Court of Human Rights in its capacity as an international court. No comparable measure for an individual complaint is available under the UN Charter. Secondly, the extensive case law of the Strasbourg Court has made it possible for entrepreneurs to rely on a number of Convention rights, despite the fact that these rights, at least at first glance, are not connected with the running of a business. This refers not only to the right to a fair trial on the protection of property, which offer entrepreneurs the protection of a number of their interests, but also to rights which at first glance have nothing to do with the running of the business, such as the right to respect for private and family life protected under Article 8 of the Convention. As a result, the right of individual complaint to the ECtHR should be perceived as an important measure of the protection and enforcements of entrepreneurs’ rights at the international level, in case of any failure to secure the protection of those rights at the national level.
Keywords: entrepreneurs, European Convention on Human Rights, European Court of Human Rights, individual complaint, human rights
Page range: 11-33
Abstract: Fines levied on individuals, including entrepreneurs, are measures of vital importance for securing the effectiveness of EU law. They are primarily imposed by national administrative authorities who apply national laws. Those authorities must respect the EU’s fundamental rights during national fining proceedings following the Fransson and Pfleger formulas. They must also respect the general principles of EU law. These rights and principles shield individual entrepreneurs against arbitrary and unlawful activities by national authorities. They determine whether an individual can be fined, how high a fine is legitimate and how the fining proceedings should be conducted.
Keywords: Charter of Fundamental Rights, implementing EU law, general principles of EU law, national administrative authorities, national fining proceedings, sanctions
Page range: 35-51
Abstract: This article analyses the limits to Member States’ powers in the field of enforcing (criminal) penalties for infringements of EU law, with particular focus on the protection of the EU’s financial interests. The article addresses the issue of the broad interpretation of the concept of ‘fraud’ within the meaning of Article 1(1) of the PFI Convention, which resulted in imposing an obligation on Member States to establish criminal penalties for certain serious VAT fraud. Next, the article analyses the requirements of effectiveness and equivalence of penalties established in domestic law for infringements of EU law, which may affect not only the severity of penalties, but also the rules of criminal procedure (limitation periods in pre-trial and judicial proceedings). Finally, the article presents the main developments in the context of limitations of ius puniendi, which stem from the obligation to protect fundamental rights under the Charter of Fundamental Rights.
Keywords: enforcement of EU law, EU criminal law, effectiveness of EU law, protection of fundamental rights, PFI Convention, PFI Directive, protection of financial interests of the EU
Page range: 53-68
Abstract: Objection to inspection activities is a special legal instrument that allows an entrepreneur to react in a situation where inspection activities have been undertaken and conducted in violation of the regulations governing the rules and procedures for such inspections of business activities. This study analyses this instru- ment, in particular the possibility of filing an objection and exclusions in this regard, authorized entities, the issue of quasi-objections, the effects that the objection cau- ses or may cause, the rules of procedure for the filing and resolution of the objection, as well as the issues of complaints against the decision to continue controlling acti- vities and complaints to the administrative court. In addition to the analysis of legal provisions creating the normative construction of objection to inspection activities, the study includes related assessments, conclusions and findings of doctrine and jurisprudence. The study answers the question of whether an objection to inspection activities is an effective and available instrument to protect the entrepreneur in a situ- ation where inspection activities are conducted in violation of regulations.
Keywords: entrepreneurs, entrepreneur law, inspections, inspection authority, objections
Page range: 69-89
Abstract:This article presents selected provisions of EU Council Directive 2021/514 of 22 March 2021 amending Directive 2011/16/EU on administrative cooperation in the field of taxation, known as the DAC7 Directive. On 8 February 2023 a draft law amending the Act on the exchange of tax information with other countries and certain other acts was published by the Polish government. The draft law implements the provisions of the DAC7 Directive. The author attempts to make a concise description of the provisions of the DAC7 Directive, with particular emphasis on the new obligations of entrepreneurs in this respect. The issue of respecting the fundamental rights of entrepreneurs, especially in the context of the freedom to conduct business activity, is also discussed. At the same time, the author points to possible problems that the Polish legislature may encounter when transposing or implementing documents of such content to the Polish legal system. The study of the outlined problems is mainly based on the comparative, dogmatic and legal methods. Considering the range of issues discussed in the article, as well as the need to limit the work, it should be noted that the text will not be comprehensive and only highlights some selected problems.
Keywords: DAC7, economic freedom, entrepreneurs, fundamental rights
Page range: 91-104
Elżbieta Karska, Vita Czepek
The Rights of Transnational Corporations under International Humanitarian Law
Abstract: For several decades, transnational (multinational) corporations have been considered significant actors in international relations. It is also an undeniable fact that transnational corporations are economically stronger than many states. They are also increasingly present in situations of armed conflict. On one hand, companies operating in unstable environments are exposed to the violence and consequences of armed conflicts. On the other hand, some of their actions during armed conflicts may lead to violations, particularly of international human rights law. In this paper, however, the authors would like to focus more on the status of the protection of transnational corporations under international humanitarian law. It is possible to put forward the thesis that transnational corporations, having met certain requirements, can enjoy protection under international humanitarian law. Verification of this research thesis requires analysis of issues such as the relationship between international human rights law and international humanitarian law. It also requires the analysis of the legal basis on which the rights of transnational corporations may be founded and their scope.
Keywords: armed conflicts, international humanitarian law, transnational corporations
Page range: 105-116
Pieter Van Cleynenbreugel
The Privilege against Self-Incrimination in EU Competition Law: Time for a Case Law Update?
Abstract: Since 1989, the Court of Justice of the European Union has recognised a privilege against self-incrimination for undertakings subject to public enforcement procedures on the basis of Articles 101 and 102 TFEU. That privilege forms part of the fundamental rights of the defence. Over time, the privilege has been read into Article 6 ECHR and has gained ground in other domains of EU law as well. Against that background, the question arises as to whether the CJEU’s original case law in the field of EU competition law needs to be updated. This paper revisits that case law by comparing it with developments in the context of the ECHR and in other domains of EU law. It argues that, in light of those developments, a case law update may indeed prove necessary. However, such an update alone would not sufficiently address the practical difficulties currently surrounding the application of the privilege in practice. For that, more coordinated legislative action would be warranted.
Keywords: ECHR, EU competition law, fundamental rights, public enforcement, self-incrimination
Page range: 117-130
Kati Cseres, Karolina Hwija
Sped-Pro: The Impact of Rule-of-Law Backsliding on the Enforcement of (EU) Competition Law
Abstract: The Sped-Pro judgment concerns an action for annulment of an EU Commission decision rejecting a complaint alleging the abuse of a dominant position by the Polish state-owned railway company PKP Cargo. In this judgment, the General Court for the first time established a direct link between systematic deficiencies in the legal order of a Member State and the ability of its competition authority to investigate and take enforcement action under EU law. The General Court addressed issues of the rule of law as an element of effective competition law enforcement and the case allocation principles between the Commission and National Competition Authorities (NCAs) under the decentralised enforcement system of Regulation 1/2003. The General Court now requires the Commission to examine, when handling complaints, whether an NCA can actually enforce EU law effectively.
Keywords: case allocation, decentralised enforcement, independence, mutual trust, rule of law
Page range: 131-144
Sofia Oliveira Pais, Marta Prata Domingos
The Principle of Equal Treatment in the Google Shopping Case
Abstract: This article reflects on the principle of equal treatment as a constant feature that pervades the European Union’s legal order and its specific role in competition law. Throughout history, this principle has been a foundation stone for developing the characteristics, such as freedom of movement, that one would consensually recognise as distinctive features that make the European Union a sui generis political construction. After a brief analysis of the principle’s development and ever-expanding contours, with new instruments emerging along the way and contributing to its importance, we will focus on the application of this principle to competition law. Paying particular attention to the Google Shopping case, we will demonstrate how the general principle of equal treatment remains relevant when confronted with new types of discriminatory abuses.
Keywords: Google Shopping, leveraging abuse, principle of equal treatment, self-favouring
Page range: 145-164
Anna Piszcz, Magdalena Knapp
Directive (EU) 2019/1 of the European Parliament and of the Council and Guarantees for the Protection of the Fundamental Rights of a Party to Anti-Monopoly Proceedings in Poland: Selected Issues
Abstract: This article presents how Chapter 2 of Directive (EU) 2019/1 of the European Parliament and of the Council (the ECN+ Directive) has been transposed into Polish law. This Chapter refers to the fundamental rights of undertakings in proceedings concerning infringements of Articles 101 and 102 TFEU. The article discusses selected issues related to the correctness of the transposing legislation. It formulates a critical assessment of the content of the Polish legislation and proposes how these provisions could be amended. The authors conclude that even in areas where Chapter 2 is quite self-explanatory, the legislation, being excessively restrained, needed a different approach from the legislature. Next, the scope of the transposing provisions related to the right to be heard, legal professional privilege and privilege against self-incrimination is too narrow, and in the case of the statement of objections, what was done is ‘false’ implementation.
Keywords: competition authority, Directive 2019/1, ECN+ Directive, fundamental rights, guarantees, President of the Office of Competition and Consumer Protection
Page range: 165-179
The Investigative Powers of the President of the Office of Competition and Consumer Protection and Directive (EU) 2019/1 of the European Parliament and of the Council: Selected Issues
Abstract: Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018, to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, obliges Member States to harmonize the law governing, amongst others, the powers of national competition authorities, including investigative powers. The Act aimed at the transposition of this directive was passed in Poland with a significant delay. This article analyses the provisions of the Act of 16 February 2007 on competition and consumer protection, in force on 4 February 2021 (the deadline for the transposition of Directive 2019/1), regulating the investigative powers of the president of the Office of Competition and Consumer Protection (UOKiK), and the changes in the relevant scope adopted by the Act of 9 March 2023 amending the Act on competition and consumer protection and some other acts. The research problem includes determining whether the regulations that were in force between 4 February 2021 and 20 May 2023 governing the investigative powers of the UOKiK president, in connection with proceedings for infringement of the prohibition of competition-restricting practices, were in line with the requirements of Directive 2019/1 and whether the abovementioned amendment act removed any existing discrepancies.
Keywords: Directive 2019/1, ECN+ Directive, inspections, investigative powers, searches, UOKiK president
Page range: 181-195
Lourdes Mella Méndez, Małgorzata Kurzynoga
The Presumption of the Employment Relationship of Platform Workers as an Opportunity to Eliminate Obstacles Arising from Competition Law in the Conclusion of a Collective Agreement: The Example of Spain
Abstract: Collective bargaining is the most appropriate tool to introduce detailed regulations specific to platform work. However, the status of platform workers (they are usually self-employed), combined with EU competition law, constitutes a significant restriction on their collective bargaining rights. Hence, the aim of this article is to prove the thesis that the presumption adopted in the Spanish regulation of recognising platform workers as workers in the strict sense would be a universal solution to the problem of ensuring proper labour protection for this group of workers.
Keywords: collective agreement, platform work, self-employed workers
Page range: 197-216
Marzena Szabłowska-Juckiewicz, Aneta Giedrewicz-Niewińska
The Internal Reporting Procedure for Breaches of Law and the Protection of the Entrepreneur’s Interest
Abstract: Directive 2019/1937 comprehensively regulates the issue of reporting violations of the law and the protection of persons making such a report. The EU legislation formulates obligations regarding the establishment of channels and procedures for making internal reports, setting the framework for such a procedure and leaving it to national legislatures to specify it. The Polish legislature took action in this regard by preparing the draft Act of 5 January 2023 on the protection of persons reporting violations of the law. Due to the sensitivity of the matter, the implementation of formal mechanisms for reporting irregularities in the workplace is undoubtedly associated with many challenges. Most often in this context, challenges related to ensuring sufficient whistleblower protection are mentioned. Meanwhile, it also seems necessary when implementing such procedures to notice the challenge of the protection of entrepreneurs’ interests. A number of solutions included in the Polish draft act raise doubts and objections as to the correct implementation of the EU directive.
Keywords: internal reporting, interests of entrepreneurs, whistleblowers
Page range: 217-234
Abstract: Profit maximization is a process that companies go through to determine the best production levels and prices to achieve their goals. It would seem that the market’s ‘no limit’ applies, yet there are in fact impassable limits, set by law. Labour law and related human rights are undoubtedly well established among these limits. The balance in this area oscillates around an equilibrium, but time and again, niches of disproportionality are revealed on both sides. For example, although the right to work is effectively guaranteed by international law and domestic Polish law, only 2% of people on the autism spectrum are in work. This is all the more alarming because, due to the noticeable increase in the number of people diagnosed with autism in Poland and around the world, it is increasingly becoming a topic of public debate. A systemic way to include such people in the labour market is primarily through vocational development centres (ZAZs). This article presents the legal framework in question, in juxtaposition with the results of an empirical study conducted in 2022. Out of a total of 127 ZAZs operating in Poland, only four employ more than one person on the autism spectrum. The increase in the number of autistic people, along with the stagnation of the labour market supply aimed at them, prompts demands for remedial measures, such as incentive-based offers of financial support for ZAZs linked to employment quotas for autistic people.
Keywords: autism, employment, human rights, people with disabilities, right to work, vocational development centres
Page range: 235-252
The Development of Armenian Legislation on Pledge
Abstract: This article looks into the development of Armenian legislation related to pledge, specifically the non-judicial foreclosure process of collateral, as well as an analysis of the decisions made by the Constitutional Court and the Court of Cassation in Armenia. The article offers an overview of the legal framework for pledge in Armenia, examining the evolution of pledge legislation, and highlights the importance of the non-judicial foreclosure process of collateral and its significance in the context of Armenian legislation. It analyses the legal framework and the processes involved in non-judicial foreclosure, and also looks into the challenges that arise when applying this process in practice. Furthermore, the article analyses the decisions of the Constitutional Court and the Court of Cassation in Armenia that have dealt with issues related to pledge and non-judicial foreclosure. It provides an in- depth analysis of the reasoning for and implications of these decisions, as well as the impact they have had on Armenian legislation and practice. In conclusion, the article sheds light on the development of Armenian legislation on pledge and provides a critical analysis of the non-judicial foreclosure process and related court decisions.
Keywords: civil law, foreclosure, obligations, pledge
Page range: 253-262
Gloss to the Judgment of the Supreme Court of 12 January 2022, III CZP 78/22
Abstract: The judgment of the Supreme Court commented on here was devoted to the limitation of claims. One of the members of the partnership (the general partner) violated the non-competition clause and caused damage to the partnership. Another member (the limited partner) sued him for compensation for this damage. The Supreme Court adopted a resolution specifying the beginning of the limitation period for a claim to redress the damage caused. The legal assessment of the Supreme Court is correct. If the violation of the prohibition of competition consists in repeated behaviour, the claims of a partner provided for shall expire after six months from the date when all other partners became aware of the violation, but not later than after three years, counted separately for each behaviour.
Keywords: breach of the non-competition clause, liability for damages of a limited partner, limitation of claims
Page range: 265-276