Glosa krytyczna do wyroku Naczelnego Sądu administracyjnego z 29 sierpnia 2019 r. (sygn. akt i osk 657/19)
Critical gloss to the judgment of the supreme administrative court of 29 August 2019 (file ref. no. i osk 657/19)

Summary/Abstract: The gloss refers to the possibility of audits of municipal commercial lawcompanies by audit committees. The commercial law companies whose sole owneris a municipality are entities of a special nature, since the primary purpose of theirestablishment (creation) is to carry out specific tasks of the municipality, as opposedto generating profit. Therefore, with respect to these companies, the provisions of theAct on municipal-level local government are not specific in relation to the provisionsof the Commercial Companies Code. This does not justify audit powers of municipalcouncils over such companies. Companies whose sole owner is a municipalityundoubtedly do not fall within the definition of “municipal organizational units,”as they have a legal personality that is separate from the municipality or commune.The court also forgot that the use of conclusions from the weaker to the strongerand of analogy is not acceptable, because Art. 18a of the Act on municipal-level selfgovernment concerns the powers of audit committees and Art. 24(2) refers to thepowers of a single councilor. At this point in time, it is not acceptable to apply theso-called a minori ad maius inference and to assume the position that if a singlecouncilor can conduct an audit, then it is all the more true that an audit can beconducted by a municipal council through an audit committee.Such actions would also be contrary to the principle of legalism expressed in Article 7 of the Polish Constitution.

• Details
• Contents