Przegląd Prawa Rolnego
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Przegląd Prawa Rolnego jest nowym, zarejestrowanym już (ISSN 1897 - 7626) czasopismem (półrocznikiem) z zakresu prawa rolnego. Zostało ono tak pomyślane, by dostarczyć Czytelnikowi wiedzy z różnych dziedzin tej dyscypliny. Powinno służyć nie tylko rozwojowi nauki o prawie rolnym, wspierać proces stanowienia prawa, ale także wspomagać administrację rolnictwa w rozwiązywaniu problemów praktycznych. Dlatego są i będą w przyszłości zamieszczane w Przeglądzie prace z zakresu teorii prawa rolnego, ale również studia i materiały z badań, nowości wspólnotowego prawa rolnego, opracowania z zakresu międzynarodowego prawa rolnictwa, a także prace dotyczące praktyki. Każdy numer będzie zawierał również przegląd orzecznictwa oraz przegląd piśmiennictwa, w tym przegląd czasopism zagranicznych.
Logo czasopisma umieszczone na okładce wyraża szerokie ujęcie prawa rolnego, obejmujące obok (tradycyjnie rozumianego) rolnictwa, także prawną problematykę żywności, środowiska (w rolnictwie), obszarów wiejskich i krajobrazu wiejskiego. Łączy ono element lokalny z elementem globalnym w rozwoju tej dziedziny. W Przeglądzie są i będą publikowane opracowania przedstawicieli zagranicznej nauki prawa rolnego. W warunkach członkostwa Polski w Unii Europejskiej wręcz niezbędne jest uwzględnianie doświadczeń innych państw-członków UE w zakresie wdrażania wspólnotowego prawa rolnego. By ułatwić wymianę i dostęp do zamieszczonych w Przeglądzie publikacji, do wszystkich artykułów zostały dołączone streszczenia w języku angielskim, a od numeru 2 z 2007 r. - również w języku włoskim.
Agricultural Law Review is a newly registered (ISSN 1897 – 7626) periodical (published twice a year) dealing with agricultural law. The main reasoning for the Review is to provide the Reader with knowledge from various spheres of this discipline. It should serve not only to the benefit of the development of agricultural law school or for the legislative process, but it should also assist the administration bodies in solving practical issues. Therefore, the Review will continue to include the results of work on agricultural law theory, research studies with materials, novelties of Community agricultural law, works on international rules in agriculture together with some practical evaluations. Every issue will also contain an overview of developments in case-law and literature, including foreign periodicals.
La Rivista di Diritto Agrario è una nuova pubblicazione semestrale dedicata al diritto agrario, registrata sotto il codice ISSN 1897-7626. La rivista è ideata in modo tale da fornire al Lettore la conoscenza dei diversi aspetti della disciplina e si propone di contribuire allo sviluppo della scienza del diritto agrario, fornendo anche un supporto alla Pubblica amministrazione. Per questo motivo la Rivista comprende e comprenderà nel futuro vari contributi relativi alla teoria generale del diritto agrario, nonché studi, ricerche, le novità del diritto agrario comunitario, contributi sul diritto agrario internazionale e saggi concernenti i vari aspetti di applicazione del diritto agrario. La Rivista contiene anche una rassegna della giurisprudenza e della dottrina, nonché di riviste straniere.
Redaktor naczelny: Prof. Roman Budzinowski,
Kontakt:Wydział Prawa i Administracji,
ul. ul. Św. Marcin 90, Coll. Iuridicum UAM, pok. 319,
61-809 Poznań
Nazwa wydawcy: Wydawnictwo Naukowe UAM
ISSN 1897-7626
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Item Z problematyki zarządzania i kontroli związanych z płatnościami jednolitymi - pierwsze doświadczenia Anglii i Niemiec(Wydawnictwo Naukowe UAM, 2007) Staniewska, AnnaAs a result o f the 200 3 Common Agricultural Policy reform, the Single Payment Scheme (SPS) has already been introduced in the “old” EU member states. England and Germany, which implemented the reformed mechanism as early as in 200 5 , incorporated its most recent version, the dynamic hybrid model, based on gradual progressing towards decoupling the financial support from the production levels. Poland, to which the simplified the Single Area Payment Scheme (SAPS) applies, is obliged to have introduced the SPS by 2009. The present paper addresses the question o f how Poland can benefit from the experiences o f England and Germany which have already introduced the SPS. The paper concludes with the fo llow in g lessons learned. Because Poland’s situation is complex due to its fragmented possession o f land, additional costs may be generated. On the other hand, however, that undesired effe ct may be partly mitigated by the experience gained in the course o f the SAPS implementation which provided for the decoupling element. Also, there are substantial risks connected with the computer system and human resources. In order to minimise them, the author proposes to introduce individual elements o f the SPS, such as e.g. cross-compliance, gradually, over a longer period o f time. Here, the experience o f other states should serve as a benchmark and be considered as one o f the possible management tools.Item Reforma Wspólnej Polityki Rolnej w 2003 r. i reżim płatności jednolitej(Wydawnictwo Naukowe UAM, 2007) Germanò, AlbertoThe subject of the paper is the legal regime of the single payment scheme in the context of the reform to the Common Agricultural Policy drafted in 2003. The reform, adopted by then 15 member states o f the EU in resolution 1782/2003 dated 29 September 2003, postulates a departure of production and support. The specific feature of the reform is that the Community support is conditioned, or dependant, on the effects of cross compliance, which, when not achieved, result in a reduction or withdrawal of the aid. Another condition stipulated in the reform is the tying of aid with environmental protection, as envisaged in the Green Box of the Marakesh Agreement. The Community no longer grants financial aid to production, but aims to support farmers for the very fact that they are farmers. In other words, Community aid does not follow the product but takes the form of a single payment. That payment is now qualified as the average production support, or payment made in the years 2000-2002. In the effect of the further decoupling of direct payments, the farmers receive a certain 'rent1, and may then decide to terminate agricultural production, to ensure “good agricultural practice, compatible with the principles of environmental protection” . Another objective of the reform is granting aid for profitable production (on good arable land), and as such it meets the market expectations.Item Prowadzenie działalności rolniczej na obszarach „Natura 2000" - aspekty prawne(Wydawnictwo Naukowe UAM, 2007) Otawski, PiotrAgricultural activity is the most common way in which man may influence the environment in areas designated as parts of “Natura 2000” network. Therefore, appropriate rules regulating agricultural activity within the European ecological network “Natura 2000” create an imperative condition for the success of the European project which aims at conservation of the natural resources on the European continent. The paper is an attempt to analyse and evaluate that part of Polish legislation which should provide for legal protection of habitats and species in special areas of conservation and special protection areas, as well as secure a system of financial support for the types of agricultural activity that are recommended for those areas.Item Porozumienia branżowe w rolnictwie w prawie francuskim i włoskim (zagadnienia wybrane)(Wydawnictwo Naukowe UAM, 2007) Perzyna, AndrzejBranch agreements are widely discussed in the foreign literature, particularly in France and Italy. Polish researches have not, as yet, given that subject a serious attention, hence a certain gap in the Polish doctrine exists, which is even more pronounced in the situation today, where branch agreements play a significant role in the organisation of agricultural markets. Shedding some light on the subject in question to the Polish Reader seems therefore useful and justified. The paper covers the key issues related to a branch agreement, and in particular it focuses on its definition, its subject and contents as well as its functions and objectives. The paper concludes with a statement that branch agreements in agriculture constitute a specific legal institution and cannot be classified using the existing system of legal relations. At the same time, the specific features o f that institution require that more focus and attention is given to those agreements, especially when it comes to the deliberations concerning modernisation of Polish agriculture. What may become o f use here is experience gained from the existing branch agreement in the sugar market.Item Sprzedaż egzekucyjna gospodarstwa rolnego i jej skutki dla nabywcy(Wydawnictwo Naukowe UAM, 2007) Głodowski, WłodzimierzThe latest amendment to the code of civil proceedings has provided for a completely novel manner of enforcement proceedings, and namely an enforced sale of an agricultural business or farm (articles 106414-106423 o f the code). The paper focuses on the analysis of the two legal ways in which a farm may be sold: (1) by putting it up for an auction, or (2) in a free market, and on the issues related to the transfer o f the title to the farm by virtue of a contract concluded by the receiver and the buyer, and to the division of the proceeds from the sale. Another issue analysed is the liability of the new owner for the debts attached to the farm he has acquired. In the event o f an enforced sale of a farm, the legislator did not adopt the principle o f an enforced sale having an effect of a primary acquisition of the subject of executive proceedings. On the contrary, exeutive proceedings resulting in an enforced sale of a farm do not eliminate the charges burdening individual assets of the subject of the sale, but create personal liability of the buyer for the debts incurred as a result of business carried out on the farm before he had bought it, provided those were disclosed to him during the executive proceedings.Item Ustrojowy czynnik rozwoju prawa rolnego(Wydawnictwo Naukowe UAM, 2007) Budzinowski, RomanThe objective of the study was to provide general assessment of the role of constitutional provisions regulating agriculture in the shaping of agricultural law. The author first analyses relevant provisions in selected European constitutions and then discusses article 23 o f Poland's Constitution in more detail. Article 23 provides that the basis o f the agricultural system o f the State is the family farm. Looking for guidelines how to construe this constitutional 'agricultural' provision, the author quotes other provisions, and in particular the one which describes the social market economy as the basis of the economic system. The agricultural system (as well as the agricultural market) is an element o f a social market economy. Thus agriculture is also part o f the national economy, which means a departure from the strictly liberal attitude to it, allowing for certain corrections, or adjustments o f the market rules. In conclusion the author states that the provisions o f Poland's constitution justify an agricultural policy whose aim is to ensure that agriculture enjoys more favourable development conditions than those secured by the available market mechanisms. Such a policy is based on the need to take account o f the specificity o f agriculture that makes it so distinct from other sectors o f the economy. The actual role o f the Constitution o f the Polish Republic in the development o f agricultural law is not significant. As the legislative experience has shown so far, while the 'corrective' function o f the 'agricultural' provision of Poland's Constitution is very clear, its creative function is not at all pronounced. On the other hand, the recent years have proved a growing importance o f the international, and in particular European factor, in the development of agricultural law in Poland.Item Przegląd orzecznictwa(Wydawnictwo Naukowe UAM, 2007)Item Zmiana wysokości czynszu w czasie trwania stosunku dzierżawy gruntów rolnych(Wydawnictwo Naukowe UAM, 2007) Suchoń, AnetaThe paper is an attempt to present some selected issues related to the change in the lease rent during the agricultural land lease period, and the manner in which the Agricultural Property Agency solves them. The principles o f establishing the amount of that rent when the lease is prolonged for another period, as well as after the lapse o f 10 years in the case o f a land leased from the Agricultural Property o f the State Treasury resources are also discussed. In the author's opinion, despite the fact that the legal regulations concerning the above cases are very general, the lease rent that the Agricultural Property Agency establishes pursuant to article 39 clause 2 point 1 of the Act of 19 October 1991 when the lease is prolonged, is correct. What is more, once the regulations of the article quoted above have been used in practice, the modifications of the lease rent are carried out according to clear principles, and are uniformly applied in respect of every lessee. Article 700 of the civil code has also been analysed. Although the obligation to insure crops and livestock has practically rendered the significance of lease rent reduction pursuant to article 700 of the civil code much less important , this institution will not easily disappear from the relations in the rural areas. The author concludes that the lease rent regulations need modifications. Those that are currently binding do not ensure stability and have a negative impact on the preservation o f the durability of lease relations. This remark applies especially to the principles of establishing the level of rent in tender procedures, when the lease is prolonged for another lease period, and when the lease rent is to be reduced.Item Negocjacje w dziedzinie rolnictwa w ramach Światowej Organizacji Handlu a Wspólna Polityka Rolna(Wydawnictwo Naukowe UAM, 2007) Malinowska, KingaThe purpose o f the paper is to present the current state o f affairs in the agricultural negotiations o f the World Trade Organization, as well as its likely impact on the Common Agricultural Policy. The study is founded on the basis of the Draft modalities by C. Falconer, published on July 17lh, 2007. As it comes to the internal support, C. Falconer suggests the reduction o f OTDS by 75 or 85 % applicable to the EU. If the parties agree on the lower value o f the reduction, this part o f the deal will not require much effort from the EU to adapt the reformed CAP to the new WTO rules. The direct payment scheme introduced by the 2003 reform, classified to the “green box” , will not be concerned by the cuts. Equally, the new de minimis threshold is completely acceptable for the UE. On the contrary, the area o f negotiations concerning market access is much more demanding from the European point o f view. The current proposal on the tariff cuts goes far beyond the last official offer made by the EU in October 2005. At the same time, the future o f the safeguard clause is uncertain and the number o f sensitive products highly unsatisfactory. Provided that the agreement is concluded in its present form, a sharp increase o f import may occur. This in consequence will heavily affect the balance o f the European agricultural markets. As a result, the cuts o f internal prices, especially for sugar and dairy products will be necessary. Similarly, the decision concerning the elimination o f the export subsidies until 2013 will make the European exports hardly profitable, while benefits generated from regulating other export practices do not seem to balance o ff the efforts. The paper ends in a conclusion that even though the European Commission is bound by the obligation to keep its offers in the limits that allow to preserve the current CAP unchanged, due to the new WTO regulations, another reform o f the European agricultural policy may not be avoided in the near future.Item Sprawozdania i informacje(Wydawnictwo Naukowe UAM, 2007)Item Wpływ wspólnotowego prawa rolnego na prawo rolne wewnętrzne(Wydawnictwo Naukowe UAM, 2007) Costato, LuigiThe aim of the study was to establish the extent of the influence of Community law on Italian agricultural law today. The article points to two tendencies present in the Common Agricultural Policy of the EU: (i) the progressing ‘re-nationalisation’ which, through a larger margin of the freedom of decision granted by the Community, allows member states to better adjust the legal instruments required by the Community law to the specific national and regional needs, and (ii) the Community intervention in the food sector. The European CAP, in distancing itself from agricultural production, focuses on agriculture that is aimed at conservation and improvement o f the natural environment, and on the production of safe and quality products. As shown in the conclusions, the evolution o f Community law is twofold. On the one hand there is a growing concern and recognition that national policies o f member states must be catered for, on the other hand, however, the hygiene conditions and safety requirements that agricultural producers must observe are increasing in numbers.Item Prawo do uprawy i dostawy buraków cukrowych (zagadnienia wybrane)(Wydawnictwo Naukowe UAM, 2007) Bobeł, ŁukaszThe aim of the paper is to determine the legal nature of the right to grow and deliver sugar beets. The legal regulations concerning that right in Poland have also been analysed. The right to grow and deliver sugar beets is one of the instruments regulating the sugar market in Poland. The possession of a right is of m ajor significance when it comes to the profitability of sugar beet production. The right to grow and deliver sugar beets held by a planter generates, on the part of the sugar producer, the obligation to contract a certain legally established amount of sugar beets, and to pay the minimum price for the beets supplied under the contract, within the limits set out for the plantation. Therefore it may be assumed that this right is of a pecuniary nature. At the same time, contrary to sugar and milk production quotas, this right can be characterised as of private law type. The legal regulations currently binding in Poland provide expressly that the right to grow and deliver sugar beets is transferable. It may be disposed of w holly or partially, and, as it seems, may also be leased under a leasehold contract.Item Rażące niedbalstwo w wypadku przy pracy rolniczej(Wydawnictwo Naukowe UAM, 2007) Puślecki, DamianThe paper touches upon issues arising from the construction o f the notion: gross negligence as set out in article 10 clause 2 point 1 of the Act on farmers’ social insurance. The main purpose o f the considerations presented in the paper is an attempt to define gross negligence as constituting sufficient premise to deprive the injured party of the right to claim damages for an agricultural accident. Due to the absence of a definition of the concept of gross negligence in Polish legislation, it may be helpful to resort to the analysis of the judicial jurisdiction, with particular emphasis put on the decisions issued by the Supreme Court. Further to that, decisions o f relevant Labour Tribunals should also be taken into account, since gross negligence is also a phenomenon occurring in the system of general social insurance. The analysis of the above have led to the conclusion that the notion of gross negligence in agricultural activity should be also understood as a situation in which the injured party has been aware of the potential risk that may normally be expected to exist under certain circumstances, and which every, not even a particularly cautions person, would normally recognise as an obvious or easy to foresee risk, and that person, despite the above, acts contrary to rules meant to protect life and human health, and, without any reason, puts his/her life at risk, not even trying to prevent an accident from happening.Item Przedsiębiorstwo rolne we włoskim systemie prawnym (I)(Wydawnictwo Naukowe UAM, 2007) Szymecka, AgnieszkaThe purpose o f the paper is to offer a closer view on the Italian agricultural enterprise to the Polish reader. This attempt is well justified because contrary to Polish law, which does not even distinguish an agricultural enterprise as a separate category, the Italian regulation in the above aspect presents the highest level o f development, has a long tradition and it is built up with deepened theoretical thoughts. The deliberations are proceeded by an analysis o f the conditions and principles of agricultural activity as a business activity (an enterprise) arising from articles 2082 and 2135 o f the Italian civil code as well as from various doctrinaire stances on this issue. Furthermore, the reasons and results o f the distinguished agricultural enterprise category are discussed, i.e. factors which determine a particular weakness of the agricultural activity and a special privileged legal status o f such an enterprise that makes it so distinct from other sectors o f the economy. The main deliberations are focused on the so-called primary agricultural activities of an agricultural enterprise which, according to article 2135 o f the Italian civil code, are soil cultivation, forestry and animal husbandry. Within that scope, a thorough analysis is being provided of the qualification criterion o f such activities and their character. In the conclusion, the adequacy o f the Italian solutions to the new conditions in agriculture as well as their compliance with Community law are pointed out.Item Międzynarodowy czynnik rozwoju prawa rolnego(Wydawnictwo Naukowe UAM, 2007) Budzinowski, RomanAgricultural law development is determined by factors that exist within the internal boundaries o f a given state on the one hand, and by certain international factors, on the other. While the former ones are o f a local character only, the latter comprise a number of phenomena o f a supranational character, e.g. political, economic or legal, which are responsible for political choices in individual states regarding agricultural policies, thus influencing the development o f relevant legal regulations. In the paper the author discusses two phenomena o f an international character, although o f different scope and direction o f influence: globalisation and régionalisation (limited, for the purpose o f the paper, to integration within the European Community). Then he explains how those two influence the development o f Polish agricultural law. Globalisation and régionalisation determine the directions o f the necessary developments in Polish agriculture, and consequently, modifications of legal regulations. And so, Polish agricultural law stands somewhat amongst globalisation, régionalisation and its local character. The resulting changes are most visible in the spheres o f domestic law that come directly under the Common Agricultural Policy. The author postulates that the remaining spheres o f national agricultural law should also be modified and approximated to meet the contemporary requirements.Item Z prawnej problematyki jakości produktów rolnictwa ekologicznego(Wydawnictwo Naukowe UAM, 2007) Leśkiewicz, KatarzynaThe objective of the paper is to define legal elements of organic agricultural products quality. The quality of organic agricultural products is a specific category of agricultural products quality. According to Community regulations the quality of organic agricultural products is placed in the "quality of production" system in accordance with the standards set out by the Council Regulation (EEC) No 2092/91 of 24 July 1991. The quality of organic agricultural products is not of local character, but comes under globalisation and is subject to standards that serve the liberalisation of trade, contrary to ‘agricultural products as traditional specialties guaranteed’, ‘products with designation of origin’, or ‘products with geographical indications’. The quality of organic agricultural products derives from the quality of the organic method, whose compliance with the prescribed standards, and the requirements of Regulation No 2092/91 is subjected to inspection proceedings during all stages of production and marketing. The competent authority then confirms positive effects of such proceedings with a certificate of inspection stating the compliance with those standards, which is notified to consumers by an organic label on agricultural products.Item Podmiotowy i przedmiotowy zakres odpowiedzialności za szkodę powstałą w środowisku w wyniku prowadzenia działalności rolniczej(Wydawnictwo Naukowe UAM, 2007) Otawski, PiotrThe paper is an attempt to identify the objective and subjective scope of regulations related to liability for environmental damage caused by agricultural activity as implemented by the Act on prevention and repair of environmental damage of 13 April 2007. It also focuses on the assessment and evaluation of the impact that those regulations have on how such damages are compensated. Under Polish Constitution each person is responsible for the worsening of the environment which that person has caused. However, implementation of this principle in different areas varies, and so does its effectiveness. Agricultural activity has for long avoided liability for its adverse impact on the environment. Provisions of the recent Act are not only in line with the constitutional principle but are also an expression of the implementation of Community law in a Polish act. Consequently, the compliance of those provisions with the Community legislation is analysed. Generally speaking, the analysis of the objective and subjective scope of the regulations implemented in the Act confirms that those regulations have significantly widened the scope of liability for environmental damage caused by agricultural activity. At the same time, poor legislative techniques and absence of secondary executive acts render a complex assessment of the recent provisions impossible, which consequently produces doubts whether the regulations currently binding fully comply with the Community legislation.Item Sprawozdania i informacje(Wydawnictwo Naukowe UAM, 2007)Item Prawne aspekty koegzystencji upraw konwencjonalnych, ekologicznych oraz genetycznie modyfikowanych(Wydawnictwo Naukowe UAM, 2007) Leśkiewicz, KatarzynaThe purpose o f the paper is to determine the legal principles o f the coexistence of genetically modified, organic, and conventional cultivations, with special regard to the requirements o f ascertaining the consumers access to a differentiated range o f agricultural produce, and the natural environment protection. The coexistence o f conventional, organic and genetically modified cultivations means that they are practically, and without prejudice, capable o f functioning alongside one another. The legal norms that regulate the coexistence o f such cultivations are o f a technical nature. Legislations o f some EU member states, including that o f Italy, place the burden of ascertaining a non-collision coexistence o f cultivations on those who engage in the GMO production. As experience o f some states engaged in GMO cultivations shows, even the best regulations o f the technical aspects o f the coexistence o f GMO cultivations with conventional or ecological ones do not provide an adequate and sufficient cover to protect the latter from unintentional pollution with genetically modified material that is happening in the course o f natural processes undergoing in the nature. Apparently, such circumstances cannot be fully controlled.Item Przegląd piśmiennictwa(Wydawnictwo Naukowe UAM, 2007)