Przegląd Prawa Rolnego, 2008 Nr 1 (3)

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    Spis treści
    (Wydawnictwo Naukowe UAM, 2008)
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    Przegląd Wspólnej Polityki Rolnej
    (Wydawnictwo Naukowe UAM, 2008) Balcerak, Sebastian
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    Przegląd orzecznictwa
    (Wydawnictwo Naukowe UAM, 2008)
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    Przegląd piśmiennictwa
    (Wydawnictwo Naukowe UAM, 2008)
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    Zarządca w egzekucji przez zarząd przymusowy nad gospodarstwem oraz w egzekucji przez sprzedaż gospodarstwa rolnego
    (Wydawnictwo Naukowe UAM, 2008) Głodowski, Włodzimierz
    The amendment to the code of civil proceedings implemented by Act of 2 July 2004 provides for two ways in which enforcement proceedings with regard to an agricultural holding may be conducted. They are: (i) enforcement proceedings by way of enforced receivership (Art. 10641 -106413 of the said code) and enforcement proceedings by way of an enforced sale of an agricultural holding (or an agricultural enterprise) (Art. 106414- 1064'3 o f the said code). In both cases the act in question requires appointment of a receiver. The aim of this paper is to establish the competences and duties of a receiver appointed for either of the two cases and the liability of the receiver who has failed to perform and carry out the said duties with due care. Another objective is to identify those who may be appointed to act as receivers and the manner and procedures of appointments and dismissals o f receivers. A receiver in enforcement proceedings will act independently, practically without interference of a court enforcement officer. This shows the major importance of a receiver in the proceedings. A different scope o f competences vested into a receiver in enforcement proceedings makes this role significantly different from the classical role of a property administrator, despite the existing regulations applicable thereto. Consequently, the requirements of the candidates to the function of a receiver in enforcement proceedings are different.
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    Ekonomiczne wsparcie rozwoju rolnictwa ze środków unijnych w orzecznictwie Wojewódzkiego Sądu Administracyjnego w Poznaniu w 2007 r.
    (Wydawnictwo Naukowe UAM, 2008) Zieliński, Andrzej
    The subject of the deliberations presented in the paper is the application of law in the area of economic support for agriculture development financed with EU funds analysed on the basis of the 2007 jurisdiction of the Regional Administrative Court in Poznan with regards to: direct payments to agricultural land, payments to farms with low production levels, support payments to farmers in disadvantaged areas, payments under the forestry programme, and structural payments. Assessment of the decision making and judgement practice is made alongside the analysis of the compliance by the beneficiaries with the binding legal regulations. With regard to the administrative jurisdiction, the author postulates that a wider and more detailed rationale should be offered and accompany a judgement handed down in different matters and a broader interpretation of Community regulations. Regarding the beneficiaries, the need of an information campaign and professional advisory service is emphasised and is seen as a tool which would help to comply with the legal formalities. The author points out to some difficulties arising from too cumbersome and unclear regulations and very formalised proceedings.
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    Stan nietrzeźwości poszkodowanego a prawo do jednorazowego odszkodowania z tytułu wypadku przy pracy rolniczej
    (Wydawnictwo Naukowe UAM, 2008) Puślecki, Damian
    The purpose of the paper is to resolve some of the issues arising from the exemption of the right to one-off indemnity for an agricultural accident due to insobriety of the injured party. The manner in which insobriety of the injured party is measured and assessed as well as the conditions in which the injured party is denied indemnity are being analysed. In the conclusions the author claims that the provisions that determine the premises on the grounds of which the right to one-off indemnity may be exempted remain unclear. This leads to numerous legal actions being taken into courts. The most important part of the proceedings performed after an accident is proper and duly performed assessment o f the sobriety of the injured party with a view of establishing that party's contributory negligence leading to the accident. The state of insobriety does not always result in the exemption of the right to one-off indemnity, which may only be denied when a significant causational link has been determined between the insobriety o f the injured party and the agricultural accident. In the author's opinion, since the accident insurance plays a protective role, it is necessary to precise the criteria that may lead to the exemption of the intoxicated injured party from the entitlement to a one-off indemnity for an agricultural accident.
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    Prawne pojęcie agroturystyki
    (Wydawnictwo Naukowe UAM, 2008) Kapała, Anna
    Polish legislation lacks a term of "farm tourism" defined as a legal concept. The term is only described, and as such referred to, in various legal acts. In the paper an attempt is made to define farm tourism for the purposes of Polish law. The considerations presented in the paper have been based on relevant regulations binding under Italian law. A draft definition of farm tourism, its scope and contents proposed in the paper have been based on the analysis of Art. 3 of the Act on personal income tax. It has been shown that the provisions of that article practically do not differentiate between farm tourism activity and agricultural activity. The advantage of the currently binding regulations in Poland though, is the privileged position of the agricultural-complementary form of farm tourism. The authoress nevertheless postulates formulation of a legal definition of farm tourism and in corporation of the many regulations dispersed in different acts into one statute. A direct transposition, or even a mere copy, of the Italian definition of farm tourism into the Polish legal system would require a prior implementation of a concept of an agricultural entrepreneur and a broad definition of an agricultural activity that would also extend upon related activities. The proposed solution would nevertheless facilitate diversification of agricultural activities and would enable farmers to make a better multifunctional use of their holding.
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    Zbycie gospodarstwa a przejście kwoty mlecznej w świetle prawa polskiego
    (Wydawnictwo Naukowe UAM, 2008) Bobeł, Łukasz
    The subject of the paper is transfer of m ilk quotas resulting from the conclusion of an agreement of a sale of an agricultural holding. The Act on the organisation of the market in milk and milk products offers very few provisions regulating that issue. The paper is an attempt to resolve some of the legal issues that arise from the Act, one of them being determination of the meaning of the concept and notion of the “holding" in two different situations: when a holding is sold as a whole, or only in part. A transaction involving thelatter requires determination of the effects that a partial sale of a holding has on the transfer of milk quotas. The absence of a clear regulation in the Act determining the effects of a disposal of part of a holding on the entitlement to milk quotas is, in the author's opinion, a major defect of the relevant regulations currently binding in Poland.
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    Przedsiębiorstwo rolne we włoskim systemie prawnym (II)
    (Wydawnictwo Naukowe UAM, 2008) Szymecka, Agnieszka
    An agricultural enterprise as a legal category is regulated in Italian law by the provisions of Art. 2135 of the civil code o f 1942. That article provides for a definition of an agricultural entrepreneur. Pursuant to those provisions, an agricultural enterprise is any form of land cultivation, forestry, animal breeding and related activity conducted in an organised and professional manner. While the first three activities are of agricultural character by nature and as such they justify the special status o f an agricultural enterprise, the latter include commercial or industrial activities which the Italian legislator decided, for different reasons, to treat as agricultural due to their nature. The paper aims to analyse different aspects of related activities in order to identify the above categories, their qualifying criteria and types of such activity in order to subsequently divide them into activities with an impact on agricultural produce exercised with a view of its better positioning in the market, and activities focused of the provision of certain goods and services. The evolution of different solutions and their development is also discussed. The paper ends with an overall assessment of an agricultural enterprise as such and on that basis certain conclusions and postulates addressed to the Polish legislator are offered.
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    Ewolucja kontraktu rolnego
    (Wydawnictwo Naukowe UAM, 2008) Giuffrida, Giuseppe
    The paper presents the evolution of agricultural contracts (contratti agrari) which has for long constituted the fundamental instrument used in the regulation of legal relations under Italian agricultural law. Originally, the main purpose o f those contracts was to regulate the relations between such factors as land, labour and capital. Today, however, their scope has significantly broadened to reflect, as the author emphasises, the evolution of the concept of agriculture and agricultural law. First, the solutions applicable to lease and similar contracts provided for in subsequent versions of the Italian civil code (from 1865 and 1942) and some special acts are analysed. Next, norms regulating the deed forming a company and agri-industrial contracts are discussed with a view of presenting how agricultural regulations have adapted to accommodate the changes and evolution of agriculture, or. in other words, on the transition from land-bound agriculture focused on consumption to a market-oriented industrialised agriculture. Finally, contracts that farmers concluded with organs of public administration in public interest are presented. On the basis of the above it is postulated that a uniform category of agricultural contracts should be maintained.
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    Przeniesienie posiadania gruntów rolnych w wyniku spadkobrania a prawo do płatności
    (Wydawnictwo Naukowe UAM, 2008) Bieluk, Jerzy; Łobos -Kotowska, Dorota
    The Act on payments within the framework of direct support schemes of 26 January 2007 deals with cases of mortis causa succession when the proceedings for granting payments are met with the death of a farmer, giving rise to procedural consequences. Direct payments in the new Member States - including Poland - cannot be transferred. Only in exceptional circumstances does the legislator allow for the shift of a person entitled to payment. Such specific situations include (a) transfer of all land within agricultural holding and (b) death of the farmer on condition that all land subject to an aid application is transferred. The aim of the paper is to determine the legal effects (both in the sphere of public and private law) caused by the death of the testator. What is also highlighted is the different legal situation of inheritors depending on the date of death of the farmer, i.e. whether it occurred before or already after the proceedings on granting payment have been accomplished. The legislator seems to have solved the issue of procedural succession in a manner that takes into account the specific character of the procedure in question and which allows for its maximum simplification. However, a few of those solutions still raise some doubts.
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    Nowe przepisy w zakresie organizacji wspólnotowego rynku rolnego
    (Wydawnictwo Naukowe UAM, 2008) Lipińska, Izabela
    The aim of the paper is to describe the common organisation of agricultural markets and to assess the new act from the point of view of a simplification process of Community law. The paper focuses on three groups of issues: the subject matter and time scale of the regulation in question, the structure of the new legal act. and the available relevant legal instruments. The authoress ends the paper with a conclusion that the new organisation of agricultural markets is not much different from the structures that have existed to date in individual branch org an isatio n s. The new regulation provides for similar legal instruments of comprehensive impact on the common market to those already in force. Further, although it covers a broad range of topics and issues, it will always remain an “open" act due to the changing market conditions. Consequently, although the new regulation offers some improvements in the administration and monitoring of the market, its extensiveness will render its application difficult.
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    W kwestii nowego modelu dzierżawy gruntów rolnych
    (Wydawnictwo Naukowe UAM, 2008) Suchoń, Aneta
    In this paper, the focus is on necessary amendments to the existing legal regulations on agricultural land lease. The author calls on for a separate law on agricultural land lease. With regard to any issues left outside the scope of such law, the relevant provisions of the civil code should apply. In the making of a new model of agricultural land lease, the legislator should draw on the legislative doctrine elaborated in the old EU Member States and the experience of the Agricultural Property Agency in Poland. Moreover, the design of agricultural land lease should meet the current social and economic expectations as the Common Agricultural Policy applies to the Polish agriculture as well. A list of specific proposals of legal solutions that should be contained in the new agricultural land lease model is offered. It includes issues such as the term of lease and its prolongation, transfer of the lessee's rights and obligations to a third party, the effect of the lessee’s or lessor’s death on the legal relation between the lessee and the lessor, lease rentals and their revision during the term, reasons for premature termination of lease, or pre-emptive rights.
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    Kwestia zgodności z Konstytucją ustawowego prawa odkupu Agencji Nieruchomości Rolnych
    (Wydawnictwo Naukowe UAM, 2008) Lichorowicz, Aleksander
    The paper contains deliberations on the origin of the statutory right of the Agricultural Property Agency to re-purchase property arising from Art.29 para. 5 of the Act on management of agricultural property owned by the State Treasury and a conclusion that there is not much room for that right within the scope of the primary and fundamental tasks assigned to the Agency. Further on, a comparison is made between the right to re-purchase property and the concept of expropriation. The result of this exercise shows that the said right to repurchase constitutes a much more burdensome intervention and a greater limitation of the ownership, than it is in the case of expropriation. The analysis of Art. 31 para. 3, Art. 21 para. 2 and art. 64 para. 3 of P oland’s Constitution performed on the basis of case law of the Constitutional Tribunal leads to the conclusion that the said right to re-purchase land under Art. 29 para. 5 of the Act on management of agricultural property of 19 October 1991 is contrary to those provisions. The author argues that the resulting limitation of ownership is: (a) not necessary to pursue the objectives referred to in Art. 31 para. 3 of the Constitution and does not satisfy the test of proportionality formulated in the provision, (b) that the goals provided for in Art. 29 para. 5 can be hardly considered as meeting general public interests in the meaning of Art. 21 para. 2 of the Constitution, (c) that the ownership limitation interferes with the very essence of the right of property referred to in Art. 64 para. 3 of the Constitution, and last but not least (d) when the right to re-purchase property provided for in Art. 29 para. 5 is exercised, the party that transfers the property does not always receive fair compensation as provided for under Art. 21 para. 2 of the Constitution. Thus, in the author’s opinion, the provision of Art. 29 para. 5 of the Act of 19 October 1991 is contrary to the Constitution.
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    Zagadnienie kodyfikacji prawa rolnego
    (Wydawnictwo Naukowe UAM, 2008) Budzinowski, Roman
    Codification belongs to one of the most interesting issues of agricultural law. The evolution of agricultural legislation has been accompanied by the codification thought for long, and had begun before the agricultural law emerged as a separate branch of law. The paper shows examples of codification attempts as well as the results of such attempts in proposals or final acts (or codes) against the development o f agricultural legislation. Examples are taken from the experiences of France, Italy, Spain and Poland. One of the concluding statements of the paper is that, as a rule, attempts to codify agricultural law are the reflection of the state of legislation of the times in which such attempts were made. Most often, the view was to put in order the system of the existing and binding regulations rather than to create or offer new solutions. An important aspect of such attempts has always been the relation between the codification project and the provisions of the civil code being in force. On that basis the author argues that the agricultural law in Poland in its current state - is not capable of being codified. Neither would it be possible for the Polish agricultural law to undergo a "limited" codification ( such as code rural in France, or the recent proposal for codice agricolo in Italy). Any codification of agricultural law in Poland would require its prior "renewal", consolidation as well as making it fully conformed to the Community legislation and to the concepts functioning therein.
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    Reforma wspólnej organizacji rynku wina
    (Wydawnictwo Naukowe UAM, 2008) Balcerak, Sebastian
    Difficult situation in the sector of the European wine products led the Community legislator to undertake a thorough examination of the legal mechanisms recently used in the process of administering the wine market. Increasing pressure from the new world wines together with growing surpluses and falling competitiveness of the EU wine production required a rapid response from the agricultural acquis. Thus, the aim of the paper is to analyse the main concept of the proposed legal framework in the light of the ongoing discussion at the EU level on matters related to crisis and risk management tools, climate change mitigation and, above all, to the future of the entire first pillar together with its relation towards the single payment scheme. The main findings of the considerations carried out in the paper bring several answers to what the possible future of the agricultural acquis might be. One should take particular account of the expected growing use of the subsidiarity principle which allows the Member States to take over main responsibilities for managing the situation in the sector to gether with the application of sector specific instruments. In addition to this, the reform empowers the Member States to decide on such sensitive issues like the prolongation of the planting right regime or allocation of funds among the farmers by way of payment entitlements distribution. Finally, the reform opens the door for the possible development of vine plantings in certain Member States where the level of wine production remains relatively low and persists to maintain regional, or even local character.
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    Z problematyki prawnej rejestrów związanych z realizacją Wspólnej Polityki Rolnej
    (Wydawnictwo Naukowe UAM, 2008) Jeżyńska, Beata
    The main aim of the paper is to assess the effects of registers and to determine their function in the sphere of agricultural production under quotas or limitations. Production limitation requires that both public and non-public registers are kept. The main function of public registers is the creation of legal effects for producers and operators participating in a regime of common marker organisation under quotas as the entry into registers constitutes a legal prerequisite for the operators to gain access to instruments of CMO. The registers play also a selective role among economic entities by giving only to some of them a special status resulting from the fact that production quotas have been assigned to them. Non-public registers provide for an extensive set of data which allows for an assessment of the economic situation of registered producers, particularly with regard to the level of quota utilisation. Registers of agricultural producers functioning in the limited production regime are usually kept at various public administration agencies, dispersed, however, among public bodies and other market players. The variety of bodies administering particular registers confirms the conclusion that there is no tendency or even intention to combine or integrate those registers, or. at least, to subject them to one common registration procedure. And yet, the nature of production quotas is such that the registering obligations could be simplified and unified. This would limit their scope and consequently improve the smooth functioning of the market. Further, the transparency of market instruments would improve the process o f their supervision and would facilitate market assessment.
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    Zakres autonomii państw członkowskich Unii Europejskiej w dziedzinie bezpieczeństwa żywności i etykietowania
    (Wydawnictwo Naukowe UAM, 2008) Lattanzi, Pamela
    A broad margin of intervention of the Community legislator into the sphere of food safety and labelling of foodstuffs lies in its ability to impose impact upon national legislation and the autonomy of the Member States. This paper is focused on the determination of the scope of such autonomy i.e. on areas reserved for decisions taken at national level. Regarding the food safety, the paper presents the most significant elements of the impact that Regulation (EC) No 178/2002 has upon domestic legal order. This is followed by an analysis of the scope of the autonomy with reference to two different situations: (a) the ability to retain, or implement a national provision dealing with food safety, and (b) the ability to ban the marketing of foodstuffs for food safety purposes. When it comes to labelling, the important role it plays on the food market is acknowledged. Labelling is the basic instrument of communication and exchange of information between the seller and the buyer. It is also a measure that is preferred by the European Court of Justice as this measure allows for maintaining equilibrium between different interests such as free movement of goods and services and consumer protection. The legal framework regarding those areas as well as the provisions of Directive 2000/13/EC are given a detailed analysis. Directive 2000/13/EC constitutes the main legal act that provides for an exhaustive and nearly total harmonisation of the provisions on labelling of foodstuffs, and for determining the scope of legislative competence of the Member States, with particular reference to Article 18 hereof. In her concluding remarks, the authoress states that the autonomy of the Member State in the field of food safety and labelling o f foodstuffs is currently very much restricted.