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Case comment to the judgement of the Supreme Court of 19 August 2009 – Marquard Media Polska (Ref. No. III SK 5/09)
More...Case comment to the order of the Polish Supreme Court of 3 September 2009 (Ref. No. III SK 16/09) to refer a preliminary question to the Court of Justice of the European Union (C-410/99 Polska Telefonia Cyfrowa sp. z o.o. v President of the Electroni
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The smart grid is a concept for the development of power distribution grids that offers great promise for the realization of the ambitious objectives of European Energy Policy. In its Third Energy Liberalization Package, European energy law has introduced the concept of intelligent grids and intelligent metering systems. A new directive of EPBD (energy performance of buildings) is to press ahead with this trend. At the same time work is underway at the European Commission and with European Regulators concerning standardization and the new shape of regulatory policy in the implementation stage. The EU legislation and regulatory policy of the National Regulatory Authorities will have to take into consideration the current trends in the modernization of the networks. Among other things, this means revising the existing regulatory model, and that will have to take into account the performance and output of industry networks.
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European climate and energy policy will have a great impact on the European and Polish energy markets. Moreover, it will have an influence on broad realms of social and economic activity. This raises the necessity of taking concrete strategic measures, especially on the governmental level. EU climate and energy policy also entails sizeable investment requirements and places important demands on the modernization programme for the energy sector. This spells the need to develop broad dialogue between the government and society.The above gives the background behind the appointment of the biggest Polish think tank in 2009 – namely, the Public Board of the National Programme for the Reduction of Emissions. In the Polish context the authors herein analyze the European climate and energy package, European Union policy regarding the reduction of emissions, and the Polish efforts taken in this field. The authors also describe the role of the Public Board of the National Programme for the Reduction of Emissions and its tasks. In conclusion they present policy recommendations and results in the area of fulfilling European obligations and conducting an infrastructural modernization programme in Poland.
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The concept of energy security can be rather difficult to precisely define. In fact, the scope of energy security includes a somewhat different set of issues in the gas sector than in the electricity sector. After all, electricity can be produced in every country of the European Union, but gas extraction is possible only in some. Natural gas is a commodity which constitutes a significant component of the export policy of only a few countries. As a result, the scarcity of gas in the EU makes it a very desirable resource for many countries, some of which are taking important energy-related decisions without consulting or assessing their impact on other Member States. This hampers the coordination of energy policy and the setting of common objectives with regard to energy security for the EU as a whole. The lack of cooperation among Member States has a clearly more negative impact on Poland and the other new Member States (which depend on a single gas supplier) than on the old EU-15, whose gas supply is generally well diversified. Moreover, the lack of proper infrastructure and cross-border connections puts in question the creation of a solid energy policy at the EU level in the gas sector.
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This paper presents the system for the strategic storage of gas imposed by the Act on Fuel Reserves and evaluates its compliance with the relevant provisions of EU law, in particular the so-called 2nd and 3rd Internal Energy Market Packages. Unlike the case of legislation on strategic oil stocks, EU legislation on gas does not impose on Member States any obligation to maintain strategic reserves of gas. Furthermore, Member States are obliged to implement common rules establishing an internal market in natural gas including Third Party Access (TPA) to storage facilities. However, Member States are allowed to impose on undertakings operating in the gas sector, in the general economic interest, public service obligations which may relate to supply security, and EU law recognizes the contribution of gas storage to the security of supply. Thus, the objective of this article is to evaluate whether the Act on Fuel Reserves as well as the amendments to it proposed by the Polish Ministry of the Economy are in line with the relevant provisions of EU law. The analysis includes the position of the Court of Justice presented in several judgements as regards the concept of public service obligations.
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The generation of utilizable forms of energy, mainly electricity and heat, carries an environmental impact – as does any human industrial activity. In the case of the power industry based on fossil fuels, this impact is connected with the emission of technological by-products, not necessarily of a material character. It is obvious that the Polish point of view on this problem is connected with the unique degree of dependence of the national power industry on coal. Two aspects of the emission reduction problem are analyzed in this article: the technological, connected with the permanent development of flue-gas cleaning; and the administrative, connected with limiting the permissible polluter concentration in flue gases. It is shown that during the development of the power industry to date, those relations led to an effectiveness (efficiency) of flue-gas cleaning installations which seemed impossible at the moment of its implementation. The main goal of this work is to demonstrate that the regulations being introduced by the European Commission strongly disturb the present relations between technical capabilities and administrative requirements.
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The subject matter of this article is the implementation in Poland of Directive 2003/87/EC on the emissions trading scheme for greenhouse gases in the Community. The first part of the article focuses on the presentation of the legislation and institutional arrangements which transpose the obligations contained in Directive 2003/87/EC into Polish law. On the basis of this, the article then presents some problems regarding the implementation in Poland of important changes introduced into Directive 2003/87/EC by Directive 2009/29/EC. This part of the article contains an analysis of Article 50 of the new Act on the System of Greenhouse Emission Trading, which introduces specific rules for licensing bodies that undertake investment in terms of compliance with the provisions of Directive 2009/29/EC. Secondly, this paper also presents a preliminary assessment of the proposed free allocation of greenhouse gas emissions allowances in Poland to electricity production enterprises. This is examined from the viewpoint of the possibility of State aid in the meaning of Article 107(1) of the Treaty on the Functioning of the European Union.
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This article sets out to contribute to the on-going discussion regarding the relationship between competition law and sector-specific regulation, as well as the parallel application of competition law and regulatory instruments. Thus, this article attempts to provide a systematic outline of arguments which are conclusive for the proposition that sector-specific regulation must remain fully autonomous, while taking a critical stance with respect to the views of both the Supreme Court and academic lawyers who advocate the supremacy of competition law.
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The question about an appropriate structure for the electricity industry has been extensively discussed in scientific literature and experts studies. Since the beginning of electricity liberalization, it was apparent for its promoters that such a structure (in this paper referred to as the model structure or ideal structural model) for the electricity sector should involve a separation of its four sub-sectors, i.e., generation, transmission, distribution, and supply. With the exception of transmission, each sub-sector should consist of many stand-alone type companies. Given the high degree of vertical and horizontal integration of the electricity sectors, their pro-competitive restructuring (i.e., de-integration) became a standard component of electricity sector reform packages. This paper provides a concise review of the origins and justification of the initial model structure for electricity liberalization, as well as an overview of the restructuring developments in the early years of electricity liberalization. Some attention is also devoted to the EU’s unbundling initiatives. The core part of this paper discusses the first signs indicating the crisis of the initial structural canon. The paper concludes with some comments referring to the modified form for a model structure that is emerging. It involves vertical integration of generation and supply and allows a higher degree of horizontal concentration of the electricity competitive markets.
More...Case comment to the judgement of the Supreme Court of April 2, 2009 – ENION S.A. (Ref. No III SK 36/08).
More...Case comment to the judgement of the Supreme Court of November 20, 2008 (Ref. No. III SK 13/08).
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P. Kotler’s recommendations of modern marketing tell managers how to achieve and maintain a dominant market position. Some of the recommended activities may, however, infringe European and Polish competition law. Objections are not raised by market success achieved as a result of high product quality, good customer care, high market shares, continuous product improvements, new product release, entry onto fast growing markets, and exceeding customer expectations. Competition law problems may appear when a given company, having reached a dominant position, starts abusing it by subjugating the market and dictating business conditions to other market players (suppliers, customers, consumers). This article focuses on predatory pricing, strategic alliances, mergers and acquisitions and State aid issues that may arise from the implementation of Kotler’s recommendations. For market success not to transform into a competition law problem, it is worth remembering the limitations imposed by competition law on the actions of dominant companies. The paper outlines these limitations.
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A hub-and-spoke conspiracy involves an exchange of confidential information primarily concerning future prices. The exchange takes place generally between competing distributors via a common supplier but a reverse relationship is also possible. The essence of hub-and-spoke lies in the fact that there is no direct contact between competitors – the party guaranteeing the information flow is normally the common supplier (distributor in a reverse scenario). A hub-and-spoke conspiracy was first identified and specifically described by the British Office of Fair Trade in 2003. There are currently several pending investigations concerning hub-and-spoke practices in a number of EU Member States including Germany, France, Italy and the UK. Three cases of that type have been so far assessed in the Polish antitrust practice: Polifarb Cieszyn Wrocław (2007), Tikurilla (2010) and Akzo Nobel (2010). The main objective of this article is the reconstruction of hub-and-spoke conduct in Poland. Commented will also be issues such as: the connection between hub-and-spoke practices and ‘classic’ retail price maintenance; standard of proof, and duration of the agreements.
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