Transmission easement – selected problems
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Date
2013-03
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Wyższa Szkoła Bezpieczeństwa w Poznaniu
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Abstract
This paper analyzes the transmission easement institution based both on Polish civil law and legal solutions prepared on the basis of Polish administrative law. In the first case the analyzed solutions contained in the Civil Code (together with the prepared amendments to the regulations on transmission easement). In the second case there was discussed the analysis of selected transmission easement regulations, which are contained in the bill on transmission corridors.
The paper presents an analysis of the following issues: (1) the institution of transmission easement, (2) the constraints on transmission easement, (3) the term "transmission facilities" – both on the Civil Code and the bill on transmission corridors, (5) transmission corridors and effects of setting in their area transmission easement. However, the issue of compensation related to the establishment of easements on the basis of civil law and administrative law has not been further discussed here.
Description
Transmission easement is a right to the things of others, and in that sense it is a limited right in rem. It should be noted that the transmission easement may apply to infrastructure which does not have to be related to the energy sector as stated in art. 49 of the Civil Code (as well as the expected entries in the Government's draft amendments of the Civil Code of 2011) and the proposed provisions in the bill on transmission corridors of 2012.
The existing provisions in civil law gave great opportunities to determine what can be classified as transmission facilities and what cannot. The proposed changes in the civil law do not change the wide range of interpretation of the "transmission device", they rather adopt an even wider classification formula.
The solutions in the bill on transmission corridors will be the lex specialis, which will result from the need for implementation by the state and local authorities of the function to ensure public services or services of economic interest. We should also stress the need to ensure energy security by the state, which is associated with the guarantee of supply and operation of the transmission grid. Poland awaits the need to prepare the network for increased energy demand and changes in the structure of energy (nuclear power and renewable energy sources).
The text presents some problems with the transmission easement based on civil law (including the draft of amendments to Civil Code) and administrative law (the bill on transmission corridors). The text does not discuss in details the issues of compensation, which is provided by legal solutions on the basis of administrative law and civil law. The main issues which were analyzed in this work are: (1) an overview of the institution of transmission, (2) the scope of restrictions on transmission easement, (3) the term "transmission equipment" especially on the basis of article 49 CC, (4) how to interpret the qualifications of equipment as "transmission equipment", (5) transmission corridors, (6) the effects of establishing transmission easement in transmission corridors.
Legal changes prepared at the turn of 2011/2012 on the basis of the Civil Code and administrative law are the result of low efficiency of the existing regulations. In the case of the prepared changes to the Civil Code the privileged legal position of transmission undertakings should be pointed out. However, the new regulations developed under the bill on transmission corridors stem from the need to ensure by the state and local authorities the effective implementation of the security functions of public services or services of economic interest. Additional factors which contributed to the regulation of transmission easement on the basis of administrative law are affected by the obligations of the Polish state in the diversification of the energy structure – especially the question of increase in the share of RES in the obtained electricity. Moreover, Poland is facing a growing demand for energy and the problem of not very good infrastructure.
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Keywords
służebność, easement, służebność przesyłu, transmission easement, urządzenia przesyłowe, transmission device, korytarze przesyłowe, transmission corridors, prawo energetyczne, energy law, prawo administracyjne, administrative law, prawo cywilne, civil law, polityka energetyczna, energy policy
Citation
R. Rosicki, Transmission easement – selected problems, in: P. Kwiatkiewicz (ed.), Bezpieczeństwo energetyczne - surowce kopalne vs alternatywne źródła energii, WSB, Poznań 2013, pp. 245 - 253.
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ISBN
978-83-61304-57-9