Bialystok Legal Studies vol. 29 no. 1
Articles:
Robert Lizak, Sebastian Skuza
The Inflation Reduction Act as an Element of Shaping the US Grand Strategy and the UN Strategy of Global Goals
DOI: 10.15290/bsp.2024.29.01.01
Abstract: The purpose of this article is to present the US Inflation Reduction Act (IRA), signed by the US president on 16 August 2022, which provides the legal basis for the largest nationwide public investment in the economic, social and environmental spheres since the 1930s. The Act is an offshoot of the 2020–2021 legislative effort known as the Build Back Better Plan, which aims to create synergies between the US Grand Strategy to maintain the ‘exorbitant privilege’ of being the economic hegemon (resulting from the balance of power in the global economy and international politics, the status of the US dollar as an international currency and the oversight of the global reserve currency that has protected US sovereignty, security and prosperity to date) and the Agenda 2030 for Sustainable Development, adopted in 2015 by 193 UN Member States. The assessment of the US IRA is relevant not only because of the attempt made to holistically assess US strategic policy goals, including in the area of sustainable finance, but also to isolate global development trends in economic, social and environmental areas.
Keywords: Environmental Social Governance (ESG), national security law, renewable energy, strategic management, sustainable finance
Page range: 11-26
Ladislav Hrabčák, Miroslav Štrkolec
EU Regulation of the Crypto-Assets Market
DOI: 10.15290/bsp.2024.29.01.02
Abstract: The present paper discusses the issue of regulation of the crypto-assets market. This area is still struggling with a lack of legislation, and there are only some initiatives to regulate the market. The aim of the article is to analyse the state of legal regulation of the crypto-assets market while simultaneously pointing out problematic issues with de lege ferenda proposals. For this purpose, we established two hypotheses: the crypto-assets market needs to be regulated by legal acts of a European nature (H1), and the adopted EU legal acts regulating the crypto-assets market are adequate and sufficient (H2). Several types of scientific papers, such as analysis, synthesis, and the historical method, were used in the preparation of this paper.
Keywords: digital revolution, crypto-assets, crypto-assets market, financial law, financial-market law
Page range: 27-45
Magdalena Fedorowicz, Anna Zalcewicz
Challenges Posed to the EU Financial Market by the Implementation of the Concept of Sustainable Financing
DOI: 10.15290/bsp.2024.29.01.03
Abstract: The subject of this study is, firstly, the identification of new obligations for financial institutions and supervisors resulting from the normative inclusion of ESG (environmental, social and governance) policy in financial market regulation. Secondly, we will answer the question of whether and to what extent the current regulatory pattern is changing in connection with ESG policy and, for this purpose, conduct an examination in the light of the provisions of the sustainable finance risk law from the perspective of a financial institution operating on the financial market, taking into account supervisory regulations in this area. The study also aims to consider various possible solutions for the optimal implementation of the policy of counteracting sustainable development risks in financial market law.
Keywords: financial market, sustainable finance, sustainability risk
Page range: 47-59
Patrycja Zawadzka
Independent Fiscal Institutions: Considerations in the Context of Current Challenges in Public Finance and Law
DOI: 10.15290/bsp.2024.29.01.04
Abstract: This paper discusses the idea of the functioning of an independent fiscal institution (IFI) in Poland according to the EU’s requirements. The first section provides an overall description of the institution. Section 2 provides theoretical insights into possible institutional models of IFIs which are established in the EU: the purpose is to discern what lessons can be learnt from IFI models in other EU countries. Section 3 discusses the legal basis of and standards in this area of public-sector control; section 4 addresses how that adoption would look in Poland. The objective of the article is to determine what the challenges in the Polish state fiscal policy are.
Keywords: budgetary institutions, fiscal councils, independent fiscal institutions, legislation, public finances, transparency
Page range: 61-74
Tereza Svobodová
Tax Instalment Plans: A Legal Instrument of Financial Sustainability in a Crisis
DOI: 10.15290/bsp.2024.29.01.05
Abstract:The Covid-19 pandemic as well as the war in Ukraine represent the biggest hit to the Czech economy since the Great Recession. In the Czech Republic, several tax measures are being used to help economic entities overcome the current crisis and keep their businesses running. One of them is the tax instalment plan. This article aims to identify why the tax instalment plan could be an appropriate fiscal measure in times of economic crisis. The author presents a classical legal instrument in the tax area – the tax instalment plan – and analyses it from an innovative point of view rather than the usual perspective, that is, from the macroeconomic point of view. The article analyses the legal conditions for the use of this instrument in the Czech Republic, points out the difficulties of interpretation in practice and evaluates it in the context of the theoretical background of desirable fiscal crisis measures. The conclusions of the research confirm the hypothesis that this legal instrument is an effective and used tool for facilitating the sustainability of private and public finances in times of crisis. It combines the desirable aspects of both automatic stabilisers and discretionary measures.
Keywords: discretionary interventions, economic crisis, fiscal instruments, instalment plans
Page range: 75-90
Salvatore Antonello Parente
Environmental Taxation and the Circular Economy: What Are the Prospects in the European Context?
DOI: 10.15290/bsp.2024.29.01.06
Abstract: The transition from a linear economy model to a circular economy system heralds great opportunities: on the one hand, because by smoothing out diseconomies and reducing waste, it can favour the ecological transition and steer production in the direction of sustainability and respect for the environment; on the other, because by offering economic operators the opportunity to become more competitive and to achieve considerable advantages, it can create jobs and facilitate integration and innovation at a social and an industrial level. To this end, a dimension of environmentally targeted taxation can only assume importance, characterized by the metamorphosis from a linear taxation system to a circular taxation paradigm: the former, dominated by the principle of fiscal neutrality, loses sight of non-tax purposes to attach importance only to those of revenue, too often ending up financing expenditure for expenditure and therefore even waste; the latter, through the taxation of waste and the use of tax eco-incentives, favours reuse and recycling, fully implementing the paradigm of the circular economy. In this perspective, through the preparation of a virtuous model and the elaboration of an agenda for future European growth centred on radical changes in production and consumption processes, the circular economy system can be fully implemented, promoting sustainable development and the efficient allocation of resources.
Keywords: analysis perspectives, circular economy, criticality profiles, environmental taxation, sustainable development
Page range: 91-112
Bogumil Pahl, Mariusz Popławski, Michal Radvan, Anna Vartašová
The Legal Construction of and Legislative Issues Concerning Tourist Taxes: A Comparative Law Case Study
DOI: 10.15290/bsp.2024.29.01.07
Abstract: The purpose of this study is to describe the legal construction of and problems related to legislative issues concerning tourist taxes. It is based on analysis of the regulations contained in the conditions for the collection of local taxes, which result primarily from the provisions of the Polish Tax Code. These were compared with the laws of Slovakia and the Czech Republic. From a methodological point of view, we decided to focus on the regulations in force in one of the most famous tourist destinations in Poland, Zakopane, located near the border with Slovakia and the Czech Republic. The research shows that the legal solutions applied in Poland are flawed. In Poland, the tourist tax can as a rule only be levied in locations where certain levels of air pollution are not exceeded; however, this is not followed in practice. This leads to our claim that the legal solutions in this area should be changed. Maintaining the solutions currently in force in Poland leads to a situation in which legal fictions are allowed. We suggest the introduction of solutions similar to those found in the Czech Republic and Slovakia, where the tourist tax is not dependent on air pollution. The characteristic feature of this tax should be that it is levied on all types of stays, regardless of the purpose of the stay, the type of contract between the guest and the accommodation provider or the place where the guest stays.
Keywords: Czech Republic, local fees, Poland, Slovakia, tax law, tourist tax
Page range: 113-128
DOI: 10.15290/bsp.2024.29.01.08
Abstract: This article aims to offer a brief introduction to the system of local tax autonomy in Hungary, primarily by accentuating its peculiar features compared to other systems used in the region. Particular attention is paid to the local business tax, a less typical source of local revenue, which constitutes the backbone of the Hungarian system, and to the relatively recently introduced possibility for local authorities to levy so-called ‘settlement taxes’ on an open-list basis. The author then describes how the coronavirus pandemic and the measures aimed at mitigating its economic consequences affected local governments’ financing mechanism and fiscal capacity. Finally, by drawing conclusions from these occurrences, the resilience of local tax autonomy in Hungary is evaluated.
Keywords: tax autonomy, fiscal autonomy, Hungary, local government, local taxes
Page range: 129-146
Rafał Dowgier, Artur Olechno, Sabina Grabowska
Municipal Tax Policy in State Emergencies
DOI: 10.15290/bsp.2024.29.01.09
Abstract: A significant part of the revenue supplying municipal budgets in Poland comes from taxes that are subject to municipalities’ constitutionally enshrined powers. This income is mainly generated by contributions connected with the right of property ownership, among others. Apart from a fiscal function, taxes may also stimulate specific processes. Positive stimulation within the scope of tax policy is mainly based on various types of tax preferences. They may be applied as a tool of tax policy which fulfils specific economic and social objectives. These issues have become particularly important during emergencies taking place in the state, such as the COVID-19 pandemic, the migration crisis or the war in Ukraine. In the wake of the recent occurrence of such types of quasi-extraordinary measures, it is reasonable to ask a question about the need to adjust the legal limits of municipal tax powers in this regard. Concurrently, the necessity to maintain balance between support provided to specific categories of entities and the financial needs of municipalities may not escape notice. The Polish experience shows that as a consequence of emergencies, ad hoc solutions of a merely occasional nature have been introduced to the tax law system. Hence a thesis may be formulated according to which it is reasonable to approach this kind of phenomenon in a systemic way, which should be reflected in the introduction of standard and stable tools that could enable municipalities to undertake specific action. The purpose of this study is to verify this assumption, relying, most of all, on the experiences and needs that have emerged in Poland in recent years.
Keywords: extraordinary measures, local government, tax policy, taxes
Page range: 147-160
DOI: 10.15290/bsp.2024.29.01.10
Abstract: The public order clause is an instrument of private international law that limits the possibility of applying the law of a designated country in cross-border contractual relations. The role of the clause is to protect the specific interests and values of a given legal order, the importance of which is so significant that it justifies refusing to apply foreign law or limiting the scope of its application. From the point of view of the subject of this study, the public order clause could potentially be applied by national supervisory authorities in a situation of a threat to the security and stability of a given financial market. Thus the purpose of this article, in which the author uses the functional approach of the comparative legal method, the historical-descriptive method and the dogmatic method, is to verify the thesis about the possible use of the public order clause as an instrument supporting the process of building sustainable finance, along with its limitations in the form of the French concept of effet atténué and also from a comparative and cross-border perspective.
Keywords: public order, financial markets, sustainable finance, French law, effet atténué
Page range: 161-173
Damian Cyman, Michal Janovec
Institutional Financial Consumer Protection in Czech Republic and Poland: Differences, Strengths, Weaknesses, and Challenges
DOI: 10.15290/bsp.2024.29.01.11
Abstract: The financial market plays a crucial role in economic growth, but it also poses risks to consumers, who may not have the expertise to navigate its complexities. This article examines the importance of consumer protection in the financial market and the legal background for regulation, including the stable and effective institutional set-up of consumer protection in Poland and the Czech Republic. It also discusses various initiatives that have been implemented to safeguard consumers in the financial market, such as regulations and policies designed to prevent deceptive practices and fraudulent behaviour. Finally, the article highlights the challenges facing consumer protection in the financial market regarding the institutions dealing with it, including the need for more effective enforcement mechanisms.
Keywords: consumer credit, consumer protection, financial market, financial regulation
Page range: 175-187
Tomasz Nieborak
Central Bank Digital Currency as a New Form of Money
DOI: 10.15290/bsp.2024.29.01.12
Abstract: The possibility of introducing another form of official money, the Central Bank Digital Currency (CBDC), recognised by legislation, has long been discussed worldwide. This paper aims to analyse the advantages and disadvantages of such a solution, as well as to highlight the challenges facing legislatures about the possibility of legalising digital currency and, above all, protecting the rights and freedoms of citizens participating in the process. Due to its technological nature, CBDC is characterised by a much lower level of anonymity than conventional cash, which is often presented as a disadvantage. However, an analysis of this solution seems to weigh in favour of its advantages. One of them is the possibility of using CBDCs to support the process of financial inclusion referred to in the United Nations document Transforming our world: The 2030 Agenda for Sustainable Development. This is an important subject of academic research that can be carried out under the doctrine of financial-market law. Undoubtedly, this matter also has an increasing impact on the practice of financial-market functioning and fiscal and monetary policy decisions. In particular, financial law plays a key role in solving socio- economic problems and is becoming an instrument for achieving the goals set by the United Nations. The research subject of CBDC is innovative and exploratory, as money, no matter how it is perceived, is, has been and will continue to be an instrument to change the world for the better.
Keywords: Central Bank Digital Currency, central banks, money, new technologies, sustainable development, trust
Page range: 189-203
Anna Jurkowska-Zeidler, Johan Schweigl
Towards the Greening of Banking: A Comparison of the Polish and Czech Financial Markets
DOI: 10.15290/bsp.2024.29.01.13
Abstract: The role of the banking system in promoting and implementing the Sustainable Development Goals in Europe has recently become very significant. As an important part of the financial sector, green banking helps to achieve the goals of sustainable development, which, in times of global financial, economic, climate, and social crises and of war, is very important. The authors aim to present the general approach to ‘green banking’ in Poland and the Czech Republic as represented by the banking sectors themselves and the national regulatory and supervisory authorities, with reference to the EU legal framework. They posit that ‘green banking’ is an increasingly important trend in the development of the Polish and Czech financial markets and conclude that EU regulations are the biggest driver of change in green finance, resulting in an increased awareness of environmental, social, and corporate governance (ESG) factors. What is required, however, is greater systemic involvement of the institutions that constitute the financial safety net, especially central banks. The research has used a theoretical and dogmatic-legal method, based on content analysis and the availability of source information, i.e. theoretical-legal publications, overview sector reports, and, in particular, legal regulations key to the topic.
Keywords: green banking, green finance, sustainable finance
Page range: 205-218
Tomáš Šipoš, Marie Karfíková
The EU’s Emergency Intervention against High Energy Prices: Implications for the Visegrad Group Countries
DOI: 10.15290/bsp.2024.29.01.14
Abstract: The energy market in the European Union has recently faced significant external influences, which have resulted in turbulent developments in wholesale energy markets. The extraordinary and sudden increase in electricity prices and the imminent risk of further increases required a joint solution by the Member States at the end of 2022. On 6 October 2022, the Council of the European Union adopted Regulation 2022/1854 on Emergency Intervention to Address High Energy Prices, which establishes an emergency intervention to mitigate the effects of high energy prices through exceptional, targeted and time-limited measures. In this paper, the authors focus on the legal framework adopted to introduce the mandatory cap on market revenues to electricity producers in the countries of the Visegrad Group (the Czech Republic, Hungary, Poland and Slovakia).
Keywords: cap on market revenues, energy, financial law
Page range: 219-232
Edvardas Juchnevicius, Kambariddin Mekhmonov, Małgorzata Stwoł
State Special Funds in Poland and Uzbekistan: A Comparative Legal Analysis
DOI: 10.15290/bsp.2024.29.01.15
Abstract: This paper presents a comparative analysis of state special funds in Poland and Uzbekistan, focusing on their legal dimensions within the framework of financial law. State special funds play a vital role in the allocation and management of public resources, serving as targeted financial mechanisms to address specific needs and promote socio-economic development. However, there is limited comparative research examining the legal frameworks and operational aspects of these funds in different jurisdictions. This study aims to fill this gap by conducting a comprehensive analysis of state special funds in Poland and Uzbekistan, providing valuable insights into their legal frameworks, objectives, structures, and operational mechanisms. The research objectives of this study include examining the legal frameworks governing state special funds in both countries, analysing their objectives and operational mechanisms, identifying similarities and differences, and assessing their effectiveness and challenges. By achieving these objectives, this study aims to contribute to the enhancement of financial- law practices in both jurisdictions and to provide knowledge for improving the legal frameworks and operational efficiency of state special funds.
Keywords: off-budgetary funds, public finance, public funds, state special funds
Page range: 233-244
DOI: 10.15290/bsp.2024.29.01.16
Abstract: This study demonstrates the interdependence of constitutional regulations and two types of state financial security: general financial security and the security of the financial interest of the state. An indication of these two types is possible due to existing legal regulations resulting primarily from constitutional regulations, but also from ordinary laws that allow for the analysis of the activities of public authorities in the field of collecting and spending public funds, in the budgetary, tax and banking contexts. The considerations discussed here are of particular importance due to the unstable political, economic, social and, above all, financial situation. In such difficult circumstances, it seems obvious that constitutional regulations should be the basis for ensuring the financial security of the state, while indicating to what extent the applicable provisions meet the challenges of the modern, unstable world. The considerations have been based primarily on the regulations resulting from the Constitution of the Republic of Poland, with an indication of which are the most important from the point of view of the adopted topic, the regulation of separate acts. In order to discuss the selected issues, it has also been necessary to refer to selected bibliographic items and court decisions. The study is selective and not comprehensive, constituting a stimulus for further research in this area.
Keywords: banking regulations, budget regulations, Constitution of the Republic of Poland, financial power of the state, financial security of the state, security of the financial interest of the State Treasury, tax regulations
Page range: 245-254
Wojciech Białogłowski, Dominika Łukawska-Białogłowska, Bogusław Przywora
Suspendium ad Kalendas Graecas? The Problem of the Constitutionality of Suspending the Statute of Limitations for Fiscal Offences during the State of the Epidemic or the State of the Epidemic Threat as the Example of Broadly Understood ‘Fiscal Repression’ of the State against the Individual
DOI: 10.15290/bsp.2024.29.01.17
Abstract: One of the basic principles defining the relationship between individuals (including entrepreneurs) and the state is the principle of protecting the citizen’s trust in the state and the law enacted by it. This principle is based on legal certainty, understood in the jurisprudence of the Constitutional Tribunal of the Republic of Poland as a certain set of features inherent in the law which ensure legal security for the individual; the individual then has the possibility of full knowledge of the reasons for the operation of state authorities and the legal consequences that his or her actions may entail. An individual should be able both to determine the consequences of behaviours and events on the basis of the legal status in force at a given moment, and to expect that the legislator will not change it arbitrarily. On 22 June 2021, Article 15zzr was added to the Act of 2 March 2020 on special solutions related to the prevention, counteraction and combating of COVID-19, other infectious diseases and crisis situations caused by them; the article stipulates that during the state of epidemic threat or state of the epidemic, as announced due to COVID-19, and in the period of six months after their cancellation, there is no statute of limitations for the criminality of the act and no statute of limitations for the execution of a penalty in cases of crimes and fiscal crimes (paragraph 1); the periods referred to above are counted from 14 March 2020 – in the event of an epidemic threat, and from 20 March 2020 – in the event of an epidemic (paragraph 2). The subject of this paper is an attempt to answer the question of whether the indicated provision – interfering with the current model of the relationship between penal fiscal law and tax law – meets constitutional standards.
Keywords: penal fiscal law, statute of limitations, the Constitutional Tribunal, the Constitution
Page range: 255-267
Commentary:
Leonard Etel, Petr Mrkývka
Burden of Proof or the Principle of Cooperation in Granting Tax Relief? Commentary on the Judgment of the Supreme Administrative Court of the Republic of Poland of 14 September 2022, III FSK 538/22
DOI: 10.15290/bsp.2024.29.01.17
Abstract: The purpose of this commentary on the judgment of the Supreme Administrative Court (SAC) mentioned in the title is to present the relationship between the tax authority and the taxpayer seeking relief from a tax liability. The literature and court rulings, the most recent example of which is the SAC ruling under review, indicate that it is the taxpayer who bears the burden of proving that the prerequisites for granting tax relief are present, namely an important interest of the taxpayer or the public interest. The institution of the burden of proof, characteristic of civil proceedings, should not be transferred to tax proceedings, where it is the statutory duty of the tax authority to clarify all the circumstances of the case. This does not mean that the taxpayer should not point out to the tax authority all the circumstances supporting the granting of relief. However, this does not follow from the fact that the taxpayer, as the applicant, bears the burden (obligation) of proving the existence of the prerequisites. There are and should be no provisions in the Tax Code imposing such an obligation. The taxpayer should submit any evidence justifying the relief in compliance with the principle of cooperation between the taxpayer and the tax authority. This is one of the general principles of tax law found in the literature and court decisions and boils down to the fact that the taxpayer is obliged to cooperate with the authority in charge of the procedure for granting the tax relief requested by the taxpayer. This principle, like many other general principles of tax law, should be inscribed in the current Tax Code, as has long been advocated in the literature.
Keywords: burden of proof, principle of cooperation, tax relief
Page range: 271-277