Przegląd Prawa Rolnego, 2007 Nr 2

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    spis treści
    (Wydawnictwo Naukowe UAM, 2007)
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    Sprawozdania i informacje
    (Wydawnictwo Naukowe UAM, 2007)
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    Przegląd orzecznictwa
    (Wydawnictwo Naukowe UAM, 2007)
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    Z problematyki zarządzania i kontroli związanych z płatnościami jednolitymi - pierwsze doświadczenia Anglii i Niemiec
    (Wydawnictwo Naukowe UAM, 2007) Staniewska, Anna
    As 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.
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    Agroturystyka jako rodzaj działalności rolniczej w prawie włoskim
    (Wydawnictwo Naukowe UAM, 2007) Kapała, Anna
    Polish legislation lacks one broad and comprehensive definition of agricultural activity. Legal regulations concerning farm tourism in Poland are dispersed in different legislation acts. Therefore it is worthwhile taking a closer view on the notion of farm tourism as an agricultural activity, or activity related to agriculture as defined in Italian law. The main deliberations are focused on the analysis of the criteria that connect farm tourism with agricultural activity as set out in Act 96/2006 on farm tourism. Those criteria are variable, detailed and they precisely determine the boundaries within which farm tourism may be conducted. In the concluding remarks, de lege ferenda on the notion of farm tourism in Polish law have been presented. The author points to the necessity (formulated already in the literature) of inserting into Polish legislation of the notion of agricultural activity. This should be performed in a systematic and coherent way, and the notion should include non only the traditional production activities but various related activities, such as farm tourism, as well. Doing it, however, shall require determination of clear criteria what related activities are, as only their fulfillment would allow to qualify farm tourism as an agricultural activity.
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    Z problematyki uproszczenia wspólnotowego prawa rolnego
    (Wydawnictwo Naukowe UAM, 2007) Balcerak, Sebastian
    The EU agricultural law persists to be the most complex set o f legal rules within the acquis communautaire. The direct effect o f these provisions in the normative systems of the Member States depends on their transparency and the quality o f the EU legislation in a broader sense. The inclusion o f the Common Agricultural Policy into the scope o f the Community's simplification initiative shall be perceived as a proper and desirable step towards the improvement o f the quality o f agricultural acquis. The purpose o f the paper is to find out the links between the simplification process on the one hand, and the current trends in the evolution o f the CAP on the other. The main considerations have been conducted on the basis o f the analysis o f the proposal for a new Council Regulation establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (the so-called single CMO Regulation). The paper also takes a closer view on the legal aspects o f interinstitutional interactions and the mechanisms fo r the adoption o f legal acts at the level o f the Community directly attributable to the substance o f the simplification process. Despite using different terms and drawing certain distinctions between the categories o f the simplification o f the agricultural law (e.g. technical, procedural) by the Community legislator, this initiative remains to be a process o f rather political nature. This conclusion stems from the fact, that currently simplification serves as a tool o f smooth preparation of the legislative process aimed at making future changes to the CAP system.
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    Negocjacje w dziedzinie rolnictwa w ramach Światowej Organizacji Handlu a Wspólna Polityka Rolna
    (Wydawnictwo Naukowe UAM, 2007) Malinowska, Kinga
    The 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.
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    Płatności do gruntów rolnych i płatność cukrowa - wybrane zagadnienia proceduralne
    (Wydawnictwo Naukowe UAM, 2007) Łobos-Kotowska, Dorota
    The purpose o f the paper is to assess selected procedural issues incorporated in the Act on direct payments and sugar payment that came into force on 26 January 2007. Special regard is given to the specific requirements accompanying the procedure. The Community legislation offers simplified proceedings regulating allocation of those payments and subsequent supervision o f the conditions under which they were granted and used. The main focus o f the paper is on the procedural solutions provided for in the Act that have been applied to simplify and accelerate the payment procedures, reduce the costs of such procedure, and, in particular, the administrative proceedings costs in appeals against negative decisions as well as requests for amendments in the issued decisions, provided they do not limit the once acquired rights. A fuller assessment o f those procedural solutions will only be possible in the future, after the provisions o f the Act have been implemented and used in practice for some time by different organs o f state administration and administrative courts or tribunals.
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    Prawne aspekty koegzystencji upraw konwencjonalnych, ekologicznych oraz genetycznie modyfikowanych
    (Wydawnictwo Naukowe UAM, 2007) Leśkiewicz, Katarzyna
    The 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.
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    Prawna ochrona wód w procesie produkcji rolnej
    (Wydawnictwo Naukowe UAM, 2007) Rószczka, Karolina
    The purpose of the paper is an attempt to list and put in order issues related to legal protection of waters in agricultural production, and in that way to create a starting point for a subsequent analysis of that problem. Consequently, the deliberations commence with the description of the risks that arise from agricultural production and their impact on the state of waters from the economic, agricultural, or natural point of view. After that, relevant Community regulations are presented. Against that background, the Polish and Italian solutions are discussed. Polish legislation offers a number of legal instruments that serve to protect waters from the impact of agricultural production. However, those regulations are dispersed over a number of legal acts and the overall legislation in that matter, albeit extensive, is not very stable. The analysis of the situation in general has shown that from the point of view of water protection and the use of water, the key issue is compliance with the sustainable development principle. Consequently, in order to achieve a significant and durable improvement of the water environment, it is important not only to implement proper legal solutions and new production methods, but also to implement methods of agricultural production that are proper and adequate.
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    Przedsiębiorstwo rolne we włoskim systemie prawnym (I)
    (Wydawnictwo Naukowe UAM, 2007) Szymecka, Agnieszka
    The 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.
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    Podmiotowy i przedmiotowy zakres odpowiedzialności za szkodę powstałą w środowisku w wyniku prowadzenia działalności rolniczej
    (Wydawnictwo Naukowe UAM, 2007) Otawski, Piotr
    The 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.
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    Przegląd piśmiennictwa
    (Wydawnictwo Naukowe UAM, 2007)
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    Rolnictwo i środowisko w politykach Unii Europejskiej
    (Wydawnictwo Naukowe UAM, 2007) Bivona, Giuseppe
    The purpose o f the present paper is to confront the policies towards agriculture and environment in the European Union. Both are indispensable for the human life, both interact with each other and influence each other. Those relationships may, however, also trigger off a conflict o f interests. While agricultural activity violates the integrity o f the natural environment, it is the environment that provides „conditions” necessary for carrying out that activity, and those are not always favourable or desired. The development o f environmental regulations within EU agricultural law may be seen as a historical process. Initially, the few regulations that existed concerned the structural policy in agriculture. But they developed over time and became much more extensive. Today, common agricultural policy serves to maintain agricultural activity in rural areas and to protect the environment from degradation in a manner coherent with sustainable development. In the light o f the Community legislation, conflicting interests o f agriculture and environment may be reconciled where they come in contact, i.e. in rural areas. The urban development mechanisms developed under the common agricultural policy serve to achieve that goal, as, under the Community legislation, their key objective is preservation o f the natural environment. The concern for the maintenance of rural areas and improvement of the environment is not exhausted in the traditional measures o f the structural policy, but it also links with every initiative o f the common agricultural policy.
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    Transfer kwot mlecznych bez gospodarstwa w prawie polskim
    (Wydawnictwo Naukowe UAM, 2007) Bobeł, Łukasz
    The subject o f this paper is the regulation governing exclusive transfer o f milk quotas without the transfer o f the holding as provided for in Polish law. The term “transfer o f milk quota” contained in the title o f the paper is used in its broad sense. It covers both the disposal o f the quota (definitive transfer) and the granting o f the right to use the quota (temporary transfer). The system o f the milk quota transfer chosen by Poland does not rely on the strict, inseparable link between the quota and the holding. Moreover, it works in only one direction. This means that the disposal of, or the granting o f a right to use holding entails the transfer o f quota as well, while in order to transfer the quota only, it is not necessary to dispose o f the holding or grant the right to use it. Thus, it is possible to transfer the milk quota definitively or temporarily without the transfer o f or granting the right to use the holding. However, transactions involving the disposal o f a holding or granting the right to use the holding, need to comply with the requirements imposed by the legislator. The purpose o f the paper is to resolve selected issues arising from the application of the provisions on the transfer o f quotas without the transfer o f the holding in practice. There are numerous problems and they often result from the absence o f clear regulations and the necessity to apply complex methods o f interpretation. Some o f the common problems are o f special importance to farmers and have already become the subject o f various administrative courts decisions.
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    Międzynarodowy czynnik rozwoju prawa rolnego
    (Wydawnictwo Naukowe UAM, 2007) Budzinowski, Roman
    Agricultural 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.
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    Nowa rola kontraktu między licznymi modelami rolnictwa, wielością źródeł i rozwojem obszarów wiejskich
    (Wydawnictwo Naukowe UAM, 2007) Adornato, Francesco
    The purpose o f the paper is to determine the influence o f today’s economic, legal and social processes on agriculture and the way in which the latter is regulated. The author first looks at globalisation and onsiders its possible role in the crisis o f a nation state and the growing number o f decision-making centres. He then discusses the institutional effects of the 2003 CAP reform, such as another distribution o f emphasis at local, national and supranational level in agriculture management, or the solutions adopted in Regulation 1698/2005 on support o f rural development, and notices that different models of agriculture (plural agriculture) that have been emerging against that background. He argues that the increasing role o f local production systems, i.e. systems closely connected to the territory in which they operate, has consequently limited the role o f the Act in the regulation o f economic entities and increased the role o f contracts which have been gradually replacing the Act, both in the area o f civil and public law. Thus a contract has become to perform an administrative function. Finally, the Italian model o f such negotiable programming is presented. In that model legal relations in agriculture are regulated jointly by organs o f public administration and agricultural entrepreneurs on the equality principle basis. IL
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    Z problematyki podatku rolnego
    (Wydawnictwo Naukowe UAM, 2007) Suchoń, Aneta
    The Act on agricultural tax o f 5 November 1984 has been amended many times since its announcement, but its current provisions, especially in the new social and economic c ircumstances in Poland, continue to be unclear and produce inconsistent legal constructions. The purpose o f the paper is an attempt to explain and put straight some o f the doubts that the practical implementation o f that legal act entails. The following aspects are given special attention: determination o f the level o f agricultural tax due, exemption from the tax obligation when a new farm holding is being created or the existing one enlarged to an area not exceeding 100 ha, or an award o f an investment allowance. In the concluding part o f the paper, the author proposes some amendments to the existing Act on agricultural tax that are needed to ascertain that its provisions are adequate and answer the current social and economic needs. This recommendation requires, in particular, definition o f who the relevant tax payer is, who may be exempted from paying that tax, and who could be granted a tax relief. Relevant legal solutions have been offered.
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    Porozumienia branżowe w rolnictwie w prawie francuskim i włoskim (zagadnienia wybrane)
    (Wydawnictwo Naukowe UAM, 2007) Perzyna, Andrzej
    Branch 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.
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    Rażące niedbalstwo w wypadku przy pracy rolniczej
    (Wydawnictwo Naukowe UAM, 2007) Puślecki, Damian
    The 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.