The document summarizes major changes to Polish rail transport law in 2009 that were introduced to transpose several EU directives. Key changes included establishing passenger rights for delays and defining liability of railway operators. Provisions on train driver licensing were added to transpose the EU directive on certification of train drivers. The right of access to infrastructure for EU rail carriers operating international passenger services was also implemented. Overall the changes aimed to improve passenger rights and further open rail markets in line with European legislation.
Legislative Developments in Rail Transport in 2010Michal
Polish rail transport law did not overcome such important amendments
in 2010 as in 2009. There was a lengthy amendment act transposing several
directives supposed to be enacted in 2010, which is unfortunately still
proceeded by the Polish Parliament. The act transposes Directive 2008/57/EC
of the European Parliament and of the Council of 17 June 2008 on the
interoperability of the rail system within the Community1, Commission
Directive 2009/131/EC of 16 October 2009 amending Annex VII to
Directive 2008/57/EC of the European Parliament and of the Council on
the interoperability of the rail system within the Community2 and Directive
2008/110/EC of the European Parliament and of the Council of 16 December
2008 amending Directive 2004/49/EC on safety on the Community’s railways3.
This draft mainly concerns the interoperability of the Polish trans-European
rail system with the Community trans-European rail system which has to be
ensured while constructing and operating the parts of this system. It also
particularizes the competences of the President of the Rail Transport Office
(in Polish: Urząd Transportu Kolejowego; hereafter, UTK) in this area. This
act is supposed to be enacted by September 2010 and to enter into force at
the end of the year.
Legislative developments in rail transport in 2011 in polandMichal
Most amendments of the Polish rail transport law in 2011 concerned the
organisation of rail transport including: improvements in timetable changing
procedures; mechanisms to ensure the observance and early publication of
timetables; interoperability of the rail system and; certification of train drivers.
Introduced were also some changes meant to restructure the incumbent state
rail operator (in Polish: Polskie Koleje Państwowe; hereafter PKP).
Legislative and jurisprudential developments in the telecommunications sector...Michal
The Telecommunications Law Act1 (in Polish: Prawo Telekomunikacyjne,
hereafter: PT) was subject to a number of amendments in 2011 introduced by
the Amendment Act of 14 April 2011 and the Amendment Act of 16 September
2011 as well as by the separate Act of 30 June 2011 on the implementation of
digital terrestrial television.
In response to the reservations expressed by the European Commission
regarding the compatibility of the way in which regulatory obligations
concerning the setting of wholesale prices are imposed in Poland, the
Amendment Act of 14 April 2011 changed Articles 39 and 40 PT2. The direct
reason for this amendment was set out in a reasoned opinion prepared by the
Commission in October 2010 under Article 258 TFEU3. It was stated therein
that Polish rules regarding the establishment of wholesale prices may give
rise to legal uncertainty and may be discriminatory towards certain telecoms
operators.
Legislative Developments and Decisional Practice in the Postal Sector in 2009...Michal
In Poland, the rendering of postal services is regulated by the Act of 12 June
2003 – Postal Law (in Polish: Prawo Pocztowe; hereafter the PP Act)1. The Act
determines the conditions governing postal activities and their control as well
as the rendering of postal services and the universal postal service. In 2009,
the National Regulatory Authority proposed to the Ministry of Infrastructure
a number of amendments to the PP Act2. The new provisions were to ensure in
particular fair conditions for postal operators to compete and for consumers to
obtain access to postal services of high quality and at affordable prices. In this
context, separate definitions of the different types of postal services3 were of
key importance. The absence of such definitions makes it possible for private
operators to classify postal services as carriage services to the detriment of
consumer rights. Specific amendments were also to be introduced in light of the
recommendations made in 2009 by the European Commission
Legislative Developments in Rail Transport in 2010Michal
Polish rail transport law did not overcome such important amendments
in 2010 as in 2009. There was a lengthy amendment act transposing several
directives supposed to be enacted in 2010, which is unfortunately still
proceeded by the Polish Parliament. The act transposes Directive 2008/57/EC
of the European Parliament and of the Council of 17 June 2008 on the
interoperability of the rail system within the Community1, Commission
Directive 2009/131/EC of 16 October 2009 amending Annex VII to
Directive 2008/57/EC of the European Parliament and of the Council on
the interoperability of the rail system within the Community2 and Directive
2008/110/EC of the European Parliament and of the Council of 16 December
2008 amending Directive 2004/49/EC on safety on the Community’s railways3.
This draft mainly concerns the interoperability of the Polish trans-European
rail system with the Community trans-European rail system which has to be
ensured while constructing and operating the parts of this system. It also
particularizes the competences of the President of the Rail Transport Office
(in Polish: Urząd Transportu Kolejowego; hereafter, UTK) in this area. This
act is supposed to be enacted by September 2010 and to enter into force at
the end of the year.
Legislative developments in rail transport in 2011 in polandMichal
Most amendments of the Polish rail transport law in 2011 concerned the
organisation of rail transport including: improvements in timetable changing
procedures; mechanisms to ensure the observance and early publication of
timetables; interoperability of the rail system and; certification of train drivers.
Introduced were also some changes meant to restructure the incumbent state
rail operator (in Polish: Polskie Koleje Państwowe; hereafter PKP).
Legislative and jurisprudential developments in the telecommunications sector...Michal
The Telecommunications Law Act1 (in Polish: Prawo Telekomunikacyjne,
hereafter: PT) was subject to a number of amendments in 2011 introduced by
the Amendment Act of 14 April 2011 and the Amendment Act of 16 September
2011 as well as by the separate Act of 30 June 2011 on the implementation of
digital terrestrial television.
In response to the reservations expressed by the European Commission
regarding the compatibility of the way in which regulatory obligations
concerning the setting of wholesale prices are imposed in Poland, the
Amendment Act of 14 April 2011 changed Articles 39 and 40 PT2. The direct
reason for this amendment was set out in a reasoned opinion prepared by the
Commission in October 2010 under Article 258 TFEU3. It was stated therein
that Polish rules regarding the establishment of wholesale prices may give
rise to legal uncertainty and may be discriminatory towards certain telecoms
operators.
Legislative Developments and Decisional Practice in the Postal Sector in 2009...Michal
In Poland, the rendering of postal services is regulated by the Act of 12 June
2003 – Postal Law (in Polish: Prawo Pocztowe; hereafter the PP Act)1. The Act
determines the conditions governing postal activities and their control as well
as the rendering of postal services and the universal postal service. In 2009,
the National Regulatory Authority proposed to the Ministry of Infrastructure
a number of amendments to the PP Act2. The new provisions were to ensure in
particular fair conditions for postal operators to compete and for consumers to
obtain access to postal services of high quality and at affordable prices. In this
context, separate definitions of the different types of postal services3 were of
key importance. The absence of such definitions makes it possible for private
operators to classify postal services as carriage services to the detriment of
consumer rights. Specific amendments were also to be introduced in light of the
recommendations made in 2009 by the European Commission
2010 Legislative Developments in TelecommunicationsMichal
The Act from 9 April 2010 on the amendment of the Telecommunications
Law Act1 (in Polish: Prawo Telekomunikacyjne; hereafter, PT) introduced a broad
range of changes concerning the principles in accordance to which telecoms
services are to be provided to end users in Poland. It is important to stress first
the change in the definition of a ‘subscriber’ [Article 2(1) PT]. Accordingly,
every entity that is party to an agreement for the provision of telecoms services
concluded with a provider of publicly available telecoms services, irrespective
of whether the agreement is concluded in a written or any other form, is now
considered a ‘subscriber’. This amendment results from the ECJ judgment of
22 anuary 20092. The Court declared therein that the limitation of the definition
of a ‘subscriber’ to entities that are party to written telecoms agreements only
is incompatible with Article 2(k) of the Framework Directive.
The regulation of number porting services in the EU: Are the principles set o...Michal
Number portability is the name given to the facility that allows the subscribers of
Publicly Available Telephone Services (PATS) to change their service provider while
retaining their original number. By enabling subscribers to switch between telecoms
network/service providers with little inconvenience, the number porting service
therefore constitutes a key facilitator of consumer choice and effective competition
on the electronic communications market. The importance of number portability in
this respect is easily demonstrated if it is considered that, in 2010 alone, 930,000
Polish fixed line subscribers availed of this facility, along with a further 866,000 mobile
network subscribers.
Polish Telecom Regulator’s Decisions Regarding Mobile Termination Rates and t...Michal
The article presents key issues relating to the methods of mobile termination rates
calculation by the Polish National Regulatory Agency (NRA): the UKE President. It
analyses the provisions of Polish telecommunications law of 20041 with respect to the
rights and obligations of the UKE President. It invokes specific cases showing how
problematic rates calculation is for mobile operators. The Polkomtel, PTK Centertel,
PTC sp. z o.o. cases clearly show how unclear the calculation process may be in
practice and illustrate how broad the discretionary powers of the UKE President
are in this respect on the grounds of Polish telecommunications law. Highlighted
is also the dispute between the Polish NRA and the European Commission. Even
though the UKE President acts on the grounds of Polish law, its actions have to be
compliant with the European telecoms package and take into utmost account the
recommendations and comments issued by the European Commission.
Impacts of Rail Deregulation on Rail Transport PerformanceRodrigo Dourado
Compare the impact of rail deregulation in the different EU countries and analyse railway sector performance and identify related problems. Project developed in RailNewcastle' 2012
The Duties of the President of the Polish Energy Regulatory Office in the Con...Michal
This article presents the duties and powers of the President of the Energy
Regulatory Office as the national regulatory authority of Poland within the scope
of implementing the Third Energy Package. The article closely examines the
changes and omissions connected with implementing the regulations of the Third
Liberalization Package. Such implementation has not been fully executed. The
biggest shortages are visible in two fields: the realization of the aims of Articles 35 and 37 of Directive 2009/72/EC. Concerning Article 35 of the Directive, the changes
to the legal position of the President of URE (i.e., loosening his ties with the
sphere of governmental administration, something strongly advocated by negative
developments which have taken place in the legal and constitutional status of the
authority over the last six years) have not been implemented.
Transmission corridors are the subject of the bill prepared in 2012. The bill on transmission corridors 1 determine the rules of (1) establishing a corridor for new transmission facilities, (2) granting permission for the construction of transmission facilities, (3) determining a transmission corridor for existing transmission facilities, (4) locating further transmission equipment and other transmission facilities in the corridor, (5) establishing transmission easement and land management in the area of the transmission corridor, (6) determining and awarding compensation for the transmission easement encumbrance of real estate. In 2012 the bill was one of the priorities in the energy sector – not including the amendment of the Energy Law, the work on the bill on renewable energy sources and work on the project of the gas law. The intention of the Act on transmission corridors is to organize the legal system in order to ensure effective development of transmission infrastructure in Poland. The problem with the electricity infrastructure should be considered in a broader context, which means with its poor condition, increasing demand for energy, the need to diversify the energy structure in Poland. The problem with infrastructure will continue to grow due to the need to develop renewable energy sources and the planned construction of a nuclear power plant. Current state of transmission lines threatens the development of renewable energy to the level required by the European Union. However, in the case of the plan to build a nuclear power plant, it will be necessary to condense the grid in areas of poor infrastructure and ensure proper grid balancing.
Legislative Developments in the Aviation Sector in 2010Michal
The Polish Aviation Law (in Polish: Prawo Lotnicze; hereafter, PL) of 3 July
2002 was amended only once in 2009. The amendment was introduced by the
Act on the amendment of the Act on the Provision of services on the territory of
the Republic of Poland of 4 March 20101, which entered into force on 10 April
2010. Accordingly, two new provisions were introduced into Polish aviation law:
sub-article 1a was inserted into the existing Article 160 PL and a new Article 160a
was created. Both insertions specify that the Act on the Provision of services on
the territory of the Republic of Poland does not apply to its Aviation Law.
In 2010 the Polish Parliament passed just two amendments to the Act of
April 10, 1997 – the Energy Law1 (hereafter, the Energy Law). The first of them
is the Act of January 8, 2010 on amending the Energy Law and on amending
certain other acts2. The second change to the Energy Law was enacted by
virtue of the Act of April 9, 2010 on making available economic information
and exchanging economic data3. The first of the above amendments, the work
into which had begun early in 2009, has significantly influenced the functioning
of the electricity market in Poland. This amendment has a manifold character
and in a comprehensive manner regulates a range of issues that will be
discussed in this paper. However, the change enacted by virtue of the second
of the two amendments herein referred to is minor and concerns one of the
aspects of how energy undertakings operate.
Is making the conclusion of contracts for the provision of broadband internet...Michal
In its preliminary ruling delivered on 11 March 2010, the Court of Justice had
yet another opportunity, after the VTB-VAB and Galatea cases1, to express its views
on the legality of national legislation prohibiting combined sales (that is bundling
and tying). The preliminary question arose in a dispute between Telekomunikacja
Polska SA (hereafter TP SA), the Polish incumbent telecoms operator, and the
UKE President (in Polish: Urząd Komunikacji Elektronicznej; herefater, UKE),
the Polish national regulatory authority (NRA) responsible for the telecoms field.
The original case concerned the conditions for the provision of broadband internet
access services, ‘Neostrada TP’ by TP SA. According to Article 57(1)(1) of the Polish
Telecommunications Law of 2004 (in Polish: Prawo Telekomunikacyjne; hereafter,
PT)2 ‘A service provider may not make the conclusion of a contract for the provision
of publicly available telecommunications services, including connection to a public
telecommunications network, conditional upon the conclusion by the end-user of
a contract for the provision of other services (…)’
To regulate or not to regulate – economic approachMichal
The aim of this paper is to present an Indefeasible Right of Use (IRU) as a possible
remedy for telecom infrastructure EU projects that (in Poland) have been lagged
behind the time. Thanks for IRU, Beneficiaries of these EU projects will be able
to save both: time and money and will finish projects successfully. The author
discusses two possible methods of implementing IRU: via regulatory obligation and
via incumbent’s goodwill. The author proposes a game theory model with payoffs
depending on regulator’s and incumbent’s strategies. Using a game theory tree,
the author shows that if only the incumbent is willing to offer his own network,
IRU may be signed and most delays in EU projects disappear. The success is not
so obvious while implementing IRU as an obligation – in this case EU projects
will probably fail.
The European Commission published a White Paper on 2 April 2008 on damages
actions for breach of EU antitrust rules. The content of the White Paper is since
then being prepared to be converted into EU legislation on private antitrust
enforcement. This paper presents the developments in private antitrust enforcement
in Poland after 2 April 2008. It commences with an outline of EU actions in
this field which act as an introduction to the more detailed analysis of recent
jurisprudential and legislative developments in Poland. The latter part of the paper
covers, in particular, the 2009 Act on the Pursuit of Claims in Group Proceedings
and the 2011 Act Amending the Civil Procedure Code and Some Other Acts which
abolishes all specific elements of commercial proceedings, including the statutory ‘non-admission of evidence’ principle. These two legal acts are assessed in order
to establish whether their introduction is likely to help facilitate private antitrust
enforcement in Poland and to consider to what an extent are these developments
responding to the challenges outlined by the European Commission.
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2010 Legislative Developments in TelecommunicationsMichal
The Act from 9 April 2010 on the amendment of the Telecommunications
Law Act1 (in Polish: Prawo Telekomunikacyjne; hereafter, PT) introduced a broad
range of changes concerning the principles in accordance to which telecoms
services are to be provided to end users in Poland. It is important to stress first
the change in the definition of a ‘subscriber’ [Article 2(1) PT]. Accordingly,
every entity that is party to an agreement for the provision of telecoms services
concluded with a provider of publicly available telecoms services, irrespective
of whether the agreement is concluded in a written or any other form, is now
considered a ‘subscriber’. This amendment results from the ECJ judgment of
22 anuary 20092. The Court declared therein that the limitation of the definition
of a ‘subscriber’ to entities that are party to written telecoms agreements only
is incompatible with Article 2(k) of the Framework Directive.
The regulation of number porting services in the EU: Are the principles set o...Michal
Number portability is the name given to the facility that allows the subscribers of
Publicly Available Telephone Services (PATS) to change their service provider while
retaining their original number. By enabling subscribers to switch between telecoms
network/service providers with little inconvenience, the number porting service
therefore constitutes a key facilitator of consumer choice and effective competition
on the electronic communications market. The importance of number portability in
this respect is easily demonstrated if it is considered that, in 2010 alone, 930,000
Polish fixed line subscribers availed of this facility, along with a further 866,000 mobile
network subscribers.
Polish Telecom Regulator’s Decisions Regarding Mobile Termination Rates and t...Michal
The article presents key issues relating to the methods of mobile termination rates
calculation by the Polish National Regulatory Agency (NRA): the UKE President. It
analyses the provisions of Polish telecommunications law of 20041 with respect to the
rights and obligations of the UKE President. It invokes specific cases showing how
problematic rates calculation is for mobile operators. The Polkomtel, PTK Centertel,
PTC sp. z o.o. cases clearly show how unclear the calculation process may be in
practice and illustrate how broad the discretionary powers of the UKE President
are in this respect on the grounds of Polish telecommunications law. Highlighted
is also the dispute between the Polish NRA and the European Commission. Even
though the UKE President acts on the grounds of Polish law, its actions have to be
compliant with the European telecoms package and take into utmost account the
recommendations and comments issued by the European Commission.
Impacts of Rail Deregulation on Rail Transport PerformanceRodrigo Dourado
Compare the impact of rail deregulation in the different EU countries and analyse railway sector performance and identify related problems. Project developed in RailNewcastle' 2012
The Duties of the President of the Polish Energy Regulatory Office in the Con...Michal
This article presents the duties and powers of the President of the Energy
Regulatory Office as the national regulatory authority of Poland within the scope
of implementing the Third Energy Package. The article closely examines the
changes and omissions connected with implementing the regulations of the Third
Liberalization Package. Such implementation has not been fully executed. The
biggest shortages are visible in two fields: the realization of the aims of Articles 35 and 37 of Directive 2009/72/EC. Concerning Article 35 of the Directive, the changes
to the legal position of the President of URE (i.e., loosening his ties with the
sphere of governmental administration, something strongly advocated by negative
developments which have taken place in the legal and constitutional status of the
authority over the last six years) have not been implemented.
Transmission corridors are the subject of the bill prepared in 2012. The bill on transmission corridors 1 determine the rules of (1) establishing a corridor for new transmission facilities, (2) granting permission for the construction of transmission facilities, (3) determining a transmission corridor for existing transmission facilities, (4) locating further transmission equipment and other transmission facilities in the corridor, (5) establishing transmission easement and land management in the area of the transmission corridor, (6) determining and awarding compensation for the transmission easement encumbrance of real estate. In 2012 the bill was one of the priorities in the energy sector – not including the amendment of the Energy Law, the work on the bill on renewable energy sources and work on the project of the gas law. The intention of the Act on transmission corridors is to organize the legal system in order to ensure effective development of transmission infrastructure in Poland. The problem with the electricity infrastructure should be considered in a broader context, which means with its poor condition, increasing demand for energy, the need to diversify the energy structure in Poland. The problem with infrastructure will continue to grow due to the need to develop renewable energy sources and the planned construction of a nuclear power plant. Current state of transmission lines threatens the development of renewable energy to the level required by the European Union. However, in the case of the plan to build a nuclear power plant, it will be necessary to condense the grid in areas of poor infrastructure and ensure proper grid balancing.
Legislative Developments in the Aviation Sector in 2010Michal
The Polish Aviation Law (in Polish: Prawo Lotnicze; hereafter, PL) of 3 July
2002 was amended only once in 2009. The amendment was introduced by the
Act on the amendment of the Act on the Provision of services on the territory of
the Republic of Poland of 4 March 20101, which entered into force on 10 April
2010. Accordingly, two new provisions were introduced into Polish aviation law:
sub-article 1a was inserted into the existing Article 160 PL and a new Article 160a
was created. Both insertions specify that the Act on the Provision of services on
the territory of the Republic of Poland does not apply to its Aviation Law.
In 2010 the Polish Parliament passed just two amendments to the Act of
April 10, 1997 – the Energy Law1 (hereafter, the Energy Law). The first of them
is the Act of January 8, 2010 on amending the Energy Law and on amending
certain other acts2. The second change to the Energy Law was enacted by
virtue of the Act of April 9, 2010 on making available economic information
and exchanging economic data3. The first of the above amendments, the work
into which had begun early in 2009, has significantly influenced the functioning
of the electricity market in Poland. This amendment has a manifold character
and in a comprehensive manner regulates a range of issues that will be
discussed in this paper. However, the change enacted by virtue of the second
of the two amendments herein referred to is minor and concerns one of the
aspects of how energy undertakings operate.
Is making the conclusion of contracts for the provision of broadband internet...Michal
In its preliminary ruling delivered on 11 March 2010, the Court of Justice had
yet another opportunity, after the VTB-VAB and Galatea cases1, to express its views
on the legality of national legislation prohibiting combined sales (that is bundling
and tying). The preliminary question arose in a dispute between Telekomunikacja
Polska SA (hereafter TP SA), the Polish incumbent telecoms operator, and the
UKE President (in Polish: Urząd Komunikacji Elektronicznej; herefater, UKE),
the Polish national regulatory authority (NRA) responsible for the telecoms field.
The original case concerned the conditions for the provision of broadband internet
access services, ‘Neostrada TP’ by TP SA. According to Article 57(1)(1) of the Polish
Telecommunications Law of 2004 (in Polish: Prawo Telekomunikacyjne; hereafter,
PT)2 ‘A service provider may not make the conclusion of a contract for the provision
of publicly available telecommunications services, including connection to a public
telecommunications network, conditional upon the conclusion by the end-user of
a contract for the provision of other services (…)’
To regulate or not to regulate – economic approachMichal
The aim of this paper is to present an Indefeasible Right of Use (IRU) as a possible
remedy for telecom infrastructure EU projects that (in Poland) have been lagged
behind the time. Thanks for IRU, Beneficiaries of these EU projects will be able
to save both: time and money and will finish projects successfully. The author
discusses two possible methods of implementing IRU: via regulatory obligation and
via incumbent’s goodwill. The author proposes a game theory model with payoffs
depending on regulator’s and incumbent’s strategies. Using a game theory tree,
the author shows that if only the incumbent is willing to offer his own network,
IRU may be signed and most delays in EU projects disappear. The success is not
so obvious while implementing IRU as an obligation – in this case EU projects
will probably fail.
The European Commission published a White Paper on 2 April 2008 on damages
actions for breach of EU antitrust rules. The content of the White Paper is since
then being prepared to be converted into EU legislation on private antitrust
enforcement. This paper presents the developments in private antitrust enforcement
in Poland after 2 April 2008. It commences with an outline of EU actions in
this field which act as an introduction to the more detailed analysis of recent
jurisprudential and legislative developments in Poland. The latter part of the paper
covers, in particular, the 2009 Act on the Pursuit of Claims in Group Proceedings
and the 2011 Act Amending the Civil Procedure Code and Some Other Acts which
abolishes all specific elements of commercial proceedings, including the statutory ‘non-admission of evidence’ principle. These two legal acts are assessed in order
to establish whether their introduction is likely to help facilitate private antitrust
enforcement in Poland and to consider to what an extent are these developments
responding to the challenges outlined by the European Commission.
Sieci szerokopasmowe w polityce telekomunikacyjnej a book reviewMichal
A new book from Professor Stanisław Piątek, an established authority on
telecommunications law, brings the reader closer to the inner workings of broadband
technology in its legal environment. The title reflects the focus of telecoms policy
on access whereby the only access that matters is to the broadband network in its
many variations. The subject matter itself makes the book worth reading, particularly
in the absence of other major Polish works on this topic. Even if some authors
regarded broadband technologies as obsolete years ago1, in reality it still represents
a lion’s share of the telecoms business. Professor Piątek himself is well aware of the
historical and transitory nature of the subject matter when he defines broadband not
by association with any particular technology but as the ability of whatever technology
available at any given moment to provide a certain minimum transmission speed.
Thus the central notion is open to absorb technologies nonexistent as of yet. This in
turn may pose serious regulatory issues as to what future industries will be subject to
regulation, particularly since the distinction between content and carrier regulation
is becoming increasingly blurred.
Media audiovizualne. konflikt regulacyjny w dobie cyfryzacji a book reviewMichal
The book under review here is entitled Audiovisual Media: regulatory conflict in
the digitalisation era by Katarzyna Chalubinska- Jentkiewicz. As the title suggests,
I expected it to be a monograph on new regulatory problems in the increasingly
digital audiovisual field. The sector itself is well known to cause competence conflicts
between the as many as three different regulatory bodies overseeing it in Poland: the
national telecoms regulator (the UKE President), the audiovisual media supervisory
body (the KRRiT) and the competition authority (the UOKiK President). The impact
of the European Commission can also not be overlooked. The book does indeed
deal in great detail with what is seen as the ‘regulatory conflict’ in the audiovisual
field but the approach applied therein is that of the theory of administration and
administrative/constitutional law rather than that of market regulation. As a result,
the analysis focuses primarily on the perceived ‘conflict’ between Poland’s interests
and regulatory competences and the impact exercised by the European Union as
a whole, rather than on any existing or potential internal conflicts. Key to the entire
analysis is the contraposition of the notion of ‘public interest of a nation’ (State) and
the ‘general interest of the EU’ whereby the special characteristics of ‘national’ public
interest are associated with the notion of ‘public morality’ and also, ‘public mission’.
Legislative developments in the aviation sector in 2011 in polandMichal
The Polish Aviation Law Act of 3 July 2002 was amended six times in
2011. The only major change introduced in this period resulted from the
Amendment Act to the Aviation Law Act of 30 June 2011, most of which
entered into force 30 days after its publication1. In fact, changes introduced
thereby were so widespread and crucial to the entire aviation sector that it
can easily be referred to as a completely new law. Considerable effort went
into the preparation of this Act – its first draft was presented as early as 2009
followed by long consultations and the ultimate introduction of a number of
further changes.
Legislative and jurisprudential developments in the postal sector in 2011 in ...Michal
Postal services in Poland are governed by the Postal Law Act of 2003 (in
Polish: Prawo Pocztowe)1 which maintains the monopoly of the public operator
Poczta Polska with respect of letters weighing up to 50 grams. However, Poland
will have to fully liberalize its postal services market by 31 December 2012.
For this reason, the Government adopted on 5 October 2010 Assumptions
for the Draft Postal Law Act as proposed by the Minister of Infrastructure2.
However, the Draft was not placed on the Government’s legislative agenda
for 2011. Thus, the majority of legislative work will have to be completed in
2012, a fact that jeopardizes the implementation of Directive 2008/6/EC. The
latter indicates 31 December 2012 as the deadline beyond which Member
States must not maintain a privileged position of operators providing universal
postal services
Legislative and jurisprudential developments in the energy sector in 2011 in ...Michal
The year 2011 brought about fundamental changes to the legal framework
affecting energy markets in Poland. The most important of these changes
concerned rules on obligatory public trading of electric energy (so-called,
exchange obligation) and the implementation of Nuclear Facilities Projects
and Obligatory Natural Gas Reserve System Projects.
Key legislative and jurisprudential developments of Polish Antitrust Law in 2011Michal
The article presents key developments in Polish antitrust legislation and jurisprudence
of 2011. Its legislative part focuses on the renewal of Polish Group Exemption
Regulations for vertical agreements, specialization and R&D agreements as well as
cooperation agreements in the insurance sector. Noted is also the sole amendment
of the Competition Act introduced in 2011 which concerns the financial liability of
the Polish competition authority. The article covers also the new Guidelines of the
UOKiK President on the criteria and procedures of merger notifications. Presented
in its jurisprudential part is a number of 2011 rulings, mainly those rendered by
the Supreme Court and the Court of Appeals, divided according to their subject
matter with respect to particular types of restrictive practices and other problems
related to the decision-making process of the UOKiK President.
Is the parallel competence set out in regulation 12003 totally clear. case co...Michal
With a motion dated 28th of April 2005 submitted to the President of the Office of
Competition and Consumer Protection (in Polish: Prezes Urzędu Ochrony Konkurencji
i Konsumentów; hereafter, UOKiK President), Tele2 Polska Sp. z o.o. (currently:
Netia S.A., hereafter, Applicant) requested the initiation of antitrust proceedings
against Telekomunikacja Polska S.A. (hereafter, TP). The Polish incumbent, TP, was
alleged to have engaged in practices restricting competition covered by Article 8(1)
and 8(2)(5) of the Act on Competition and Consumer Protection of 15th December
2000 (hereafter, Competition Act 2000) and in Article 82 of the Treaty establishing
European Community (hereafter, TEC), presently, Article 102 of the Treaty on the
functioning of the European Union (hereafter, TFEU).
How to facilitate damage claims private enforcement in croatiaMichal
Ever since the Croatian Competition Agency started functioning in 1997, public
enforcement of competition law has been the norm. Civil actions for breaches of
competition law have been the exception in Croatia. The existing legislation in the
area of competition law makes no effort to incentivise private enforcement. There
are no specific rules in the Competition Act 2009 dedicated to civil actions, except a
single provision that assigns jurisdiction over damages claims to commercial courts.
General tort law is applicable in order to prove damages. A number of issues arise
here mostly due to the complexity of competition cases. These issues were described
in the European Commission’s White Paper on Damages Actions for Breach of
EC Antitrust Rules (2008). The level of uncertainty as regards the outcome of the
claim is high. It seems that special rules need to be adopted in Croatia in order
to improve the position of the injured side. The paper deals with a number of
procedural and substantive law issues relevant to the facilitation of civil proceedings
for antitrust damages. A domestic law perspective is applied taking into account
recent developments in EU competition law and policy.
European audiovisual sector – where business meets society’s needs a book r...Michal
The Centre for Antitrust and Regulatory Studies (CARS), responsible for this
yearbook, also prepares the publication of textbooks and monographs. An Englishlanguage
textbook European Audiovisual Sector: Where business meets society’s needs
written by Dr. Ewelina D. Sage is one of the latest publication in this series
Differentiation between entrepreneurs and its legal consequences. case commentMichal
The discussed judgment was rendered in relation to the dispute between the
President of the Polish Competition Authority (hereafter, UOKiK President) on the
one hand and the Polish Football Association and the broadcaster Canal+ on the
other hand. These two undertakings were party to an agreement on exercising media
rights to football games of the two highest classes of the Polish league. The core of
the dispute consisted of the possibility of deeming the pre-emption right reserved
for Canal+ as a contractual provision restricting competition. The Courts involved
were also forced to answer the question whether performing tasks of a public service
character justified a decrease in the fine imposed by the competition authority
Development of the judicial review of the decisions in slovakiaMichal
The article provides an analysis of the most important judgments rendered by
Slovak courts at the end of 2010, in the course of 2011 and at the beginning of 2012.
The article focuses solely on judicial review of decisions issued by the National
Competition Authority of the Slovak Republic.
Slovak courts dealt with several key issues concerning public enforcement
of competition law such as: the application of the so-called ‘general clause’;
competences of the Slovak competition authority in regulated sectors; and the
application of the economic continuity test. Some of the conclusions resulting from
these judgments may be considered disputable. It may be argued, in particular, that
they may jeopardize the effective enforcement of competition law in the Slovak Republic. At the same time, the discussed jurisprudence has managed to clarify
a number of key issues which had been subject to debate for a number of years. The
article presents a review of these judgments, summarizes their key conclusions and
considers their possible impact on the system of public enforcement of competition
law in the Slovak Republic. The article is divided into a number of parts, each of
which covers an individual case, the titles of which refers to the main topic that was
under discussion in the presented judgment.
Commission guidelines on assessment of significant market power. case commentMichal
The ruling of the Court of Justice (hereafter, CJ) in the PTC case concerns the
interpretation of Article 58 of the Treaty of Accession1 establishing an obligation
to publish EU legal acts in the languages of Member States which accessed the EU
on 1 May 2004. A controversy emerged in this context whether the said obligation
also applied to European Commission Guidelines on relevant market analysis and
the assessment of significant market power in the field of electronic communication
(hereafter, 2002 Guidelines)2. In general, guidelines issued by the Commission are
regarded as acts of soft law, also called innominate acts or sui generis acts.
In the fifth year of its activities CARS focused on the pursuit of a number of
goals set in its founding documents. It was a particularly busy year for its Publishing
Programme which saw the issue of 6 separate titles: two monographs, an Englishlanguage
textbook, a collective works and two volumes of the ‘Yearbook of Antitrust
and Regulatory Studies’ [a special edition vol. 4(4) and the yearly vol. 4(5)]. 2011 was
also a very active period for the CARS Open PhD Seminar series with four meetings
taking place throughout the year. Several CARS members engaged also in the second
edition of a research project dedicated to regulatory and antitrust aspects of airport
activities (first phase of the project completed in 2010).
What do limitation periods for sanctions in antitrustMichal
Limitation periods represent a legal safeguard for a person who has once
broken the law in order not to be put at risk of sanctions and other legal liabilities
for an indefinite amount of time. By contrast, public interest can sometimes require
that a person who has committed a serious breach of law cannot benefit from
limitation periods and that it is necessary to declare that the law had indeed been
infringed and that legal liability shall be expected irrespective of the passage of
time.
Universal service obligation and loyalty effectsMichal
In network industries, a Universal Service Obligation (USO) is often seen as a burden
on an incumbent, which requires compensation for the net cost of such service
provision. This paper estimates the effects of consumer loyalty as an intangible
benefit of USO in the postal sector. In doing so, the agent-based modelling (ABM)
approach is applied, which makes it possible to model the behaviour of boundedly
rational consumers and is thus particularly appropriate for taking into account
intangibles considerations. The analysis shows that loyalty is crucial to whether
the USO uniform pricing constraint results in loss-making or profitability. Under
certain conditions and in the presence of a loyalty parameter, uniform pricing gives
a USO provider an advantage, when the size of the rural area is sufficiently big
and a disadvantage, if its size is too small. This finding is counterintuitive as USO
providers in countries with sparsely populated areas are typically expected to incur
a significant net cost of USO.
2010 and 2011 eu competition law and case law developments with a nexus to po...Michal
This third overview of EU competition and sector-specific regulatory jurisprudential
and case law developments with a nexus to Poland covers the years 2010 and 2011.
This period of time is worth noting for several reasons. First, EU courts delivered
a significant number of judgments in ‘Polish’ cases including an increased number of
preliminary rulings. Second, 2010-2011 developments were dominated by judgments
and decisions concerning telecoms. Finally, the Commission adopted only a handful
of Polish State aid decisions following a formal investigation procedure under
Article 108(2) TFEU.
EU Courts’ Jurisdiction over and Review of Decisions Imposing Fines in EU Com...Michal
The aim of this article is to analyse the extent of judicial review exercised by the EU
courts over the European Commission’s decision imposing fines in EU competition law. When considering appeals against fines in competition law, the position of
the EU courts are limited to a review of imposed fines in respect of the European
Commission’s Guidelines instead of an exercise of a more comprehensive appellate
review. The review should not only be a control of legality but it has to be an unlimited
merits control. An appeal control should be directed to review fully the facts and to
control proportionality of the imposed fines. The article analyses also the question
of the protection of fundamental rights in the scope of the review over decisions
imposing fines. For that purpose, the article provides also a comparative analysis of
the selected judgments of the EU courts and the European Court of Human Rights.
Procedural Autonomy of Member States and the EU Rights of Defence in Antitrus...Michal
The general rule concerning the application of EU law in the Member States is
that, unless the procedural issues are directly regulated in EU primary or secondary
law, the Member States possess a so-called ‘procedural autonomy’. This rule applies
fully to national antitrust proceedings, where the presumed infringement may
affect trade between EU Member States (decentralised EU antitrust proceedings). However, the procedural guarantees offered to undertakings in EU antitrust
proceedings before the European Commission, often referred to the undertakings’
‘rights of defence’, also form a part of the procedural acquis of EU law. This article
examines the question whether that procedural acquis, stemming mainly from EU
courts’s jurisprudence and formulated with regard to the proceedings before the
European Commission, should be applied as a standard in national (i.e. Polish)
antitrust proceedings where EU law applies.
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Zawisza legislative developments in rail transport in 2009
1. Legislative Developments in Rail Transport in 2009
by
Katarzyna Zawisza*
I. Introduction
Several major changes were introduced into Polish rail transport law in
2009. As it is often the case with legislative changes of recent years, most
of the amendments were inspired by European law. The transposition
deadlines for several major directives passed in 2009 accompanied by the
entry into force of some key EU regulations in the area of rail transport.
The long awaited amendments relating to the liability of railway undertakings
and insurance obligations relating to passengers, their luggage and train
delays1 were finally introduced in 2009. At the same time, railway undertakings
were very concerned with the implementation of Directive 2007/58/EC2
introducing infrastructure access rights for rail carriers from other Member
States in relation to international passenger services.
* Katarzyna Zawisza, Senior Legal Expert at the European Union Law Department of the
Ministry of Foreign Affairs. The views expressed are those of the author and do not represent
the views, and should not be attributed to the Ministry of Foreign Affairs.
1 These changes are the consequences of Regulation (EC) No. 1371/2007 of the European
Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations,
OJ [2007] L 315/14.
2 Directive 2007/58/EC of the European Parliament and of the Council of 23 October 2007
amending Council Directive 91/440/EEC on the development of the Community’s railways and
Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of
charges for the use of railway infrastructure, OJ [2007] L 315/44.
Vol. 2010, 3(3)
2. 256 KATARZYNA ZAWISZA
II. The Act of 25 June 2009 Amending the Act on Rail Transport
1. Rail passengers’ rights
The Act of 28 March 2003 on Rail Transport3 (in Polish: Prawo Kolejowe,
hereafter PK) was amended only once in 2009. However, the Amendment
Act of 25 June 20094 affected several crucial areas of Polish rail transport law.
The Amendment Act of 25 June 2009 included provisions eagerly awaited
by millions of passengers establishing the responsibility of railway operators
for rail schedule delays. Formally speaking, these obligations result from the
directly applicable Regulation (EC) 1371/2007 on rail passengers’ rights and
obligations. The Amendment Act ensured however that the President of the
Rail Transport Office (in Polish: Urząd Transportu Kolejowego, hereafter UTK)
would have control over their fulfillment. Such institutional oversight was both
necessary and required in order to enforce Regulation 1371/2007. The provisions
on control over the fulfilment of obligations deriving from the EU act are now
contained in Article 14a(3) PK – it is exercised by the UTK President, among
other things, by means of decisions issued according to Article 14a(4) PK. UTK
decisions concerning the behaviour of entities subjected to obligations imposed
by the Regulation may impose a duty to remove the infringement. As they are
issued in the form of administrative decisions, their addressees have the right
to file a motion for the re-consideration of the case by UTK and subsequently,
to file a complaint against a renewed decision to an administrative court.
In order to enable the regulator to ensure the enforcement of Regulation
1371/2007, the amended Article 15(1) PK entitles the UTK President, and
those he/she so authorises, to enter side-tracks, railway zones, rooms connected
with railway traffic management and railway vehicles including a right to travel
by a train or a railway vehicle. The UTK President was also made responsible
for the assessment of passenger complaints concerning infringements of the
provisions of this EU Regulation. These complaints are settled by way of an
administrative decision which may affirm an infringement (defining its scope
and the removal deadline) or state its absence (Article 14a(6)). The newly
added Article 47(8) PK requires additionally that railway undertakings take
up an insurance cover that extends also over their liability under Regulation
1371/2007 as required by its Article 12. Finally, the newly added Article 66(1)
point 4 PK allows the UTK President to impose a fine on anyone subject to
the aforementioned obligations if they were to fail to fulfil them.
3 Consolidated text: Journal of Laws 2007 No. 16, item 94, as amended.
4 Journal of Laws 2009 No. 214, item 1658.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
3. LEGISLATIVE DEVELOPMENTS IN RAIL TRANSPORT IN 2009 257
It is crucial to stress here however that Poland has used the possibility
to introduce exemption periods resulting from Article 2(4–6) of Regulation
1371/2007. The Regulation states that Article 9 (Availability of tickets,
through tickets and reservations), Article 11 (Liability for passengers and
luggage, not including Chapter II of Annex I introducing liability in cases of
failures to keep to the timetable), Article 12 (Insurance), Article 19 (Right
to transport), Article 20(1) (Information to disabled persons and those with
reduced mobility) and Article 26 (Personal security of passengers) shall
apply to all rail passenger services throughout the EU from the moment of
the entry into force of this Regulation. Article 3a PK added by the Act of
25 June 2009 introduced however into Polish law the exemption contained
in Article 2(5) of the Regulation that concerns the application of some of
its provisions to urban, suburban and regional rail passenger services. The
amending act introduced also the exemption permitted by Article 2(4 and 6)
of the Regulation whereby the application of some of its provisions is excluded
in domestic rail passenger services and in relation to rail passenger services
provided by connections including stations outside the European Union. This
latter exemption was granted for the period of around one and a half year
starting from the entrance into force of Regulation 1371/2007.
At the same time, the Amendment Act introduced a procedure for the
renewal of the two aforementioned types of exemptions (i.e. domestic rail
passenger services and connections with stations outside the European
Union). A general exemption for all such services is granted until 30 June
2011. Afterwards, it may be granted on request of an interested entity by the
Minister of Infrastructure for a maximum period of 5 years after the entry
into force of Regulation 1371/2007 – until 3 December 2014. It may then be
prolonged twice for a maximum period of five years each, as permitted by the
Regulation. Renewal applications should be submitted by 31 May 2014 and 31
May 2019 respectively. The Amendment Act equally allows those operators
that will enter the market after 31 May 2014 or 31 May 2019 to file a motion
for each of the two exemption periods. Requests submitted to the Ministry
of Transport should specify the scope of the requested exemption and the
timetable of the adjustment to the Regulation.
The above notwithstanding, Poland has decided that some of the provisions
of Regulation 1371/2007, from which the aforementioned services could be
exempt, will in fact apply to these types of rail passenger transport. These
provisions concern: Article 4 (conclusion and performance of transport
contracts, the provision of information and tickets), Article 5 (enabling
passengers to bring bicycles on to the train), Article 8(1) (travel information),
Article 16 (reimbursement and re-routing in case of expected delays longer
than 60 minutes in the arrival at the final destination), Article 21(2) and
Vol. 2010, 3(3)
4. 258 KATARZYNA ZAWISZA
Articles 22 - 24 (access to transport and assistance for disabled persons and
those with reduced mobility), Article 27 (passenger complaints), Article 29
(information to passengers about their rights), Article 28 (service quality
standards and quality management system).
It is worth noting that these exemptions had to be introduced first by way
of a Communication of the Ministry of Infrastructure issued on 25 November
2009 on the non-application of some of the provisions of EU law concerning
rail passengers’ rights and obligations5 before the Amendment Act of 25 July
actually entered into force. This solution was caused by a motion filed with
the Constitutional Tribunal by the Polish President as to the compatibility
of the Amending Act with the Polish Constitution. Questioned were, among
others, some of its provisions connected with Regulation No 1371/2007. The
President asked the Tribunal to examine whether Article 14a(2) PK, added
by the Amending Act of 25 July, did not actually infringe the principle of the
definiteness of the law. It also concerned the opening of the market for rail
passenger services, namely the compatibility of Article 29a(1) PK with the
rule of equal treatment and non-discrimination contained in Article 32 of
the Constitution. The motion was settled by the Tribunal exactly on the date
of the entry into force of Regulation 1371/2007. The Constitutional Tribunal
ruled6 that the abovementioned provisions are in compliance with the Polish
Constitutional Act.
2. Certification of train drivers operating locomotives and trains
The Amending Act of 25 June 2009 transposed also Directive 2007/59/EC
on the certification of train drivers operating locomotives and trains on the
railway system in the Community7. However, full implementation will only
be ensured after the issuance of additional acts of secondary legislation. The
Directive introduced two types of documents required for drivers operating
locomotives and trains in the EU: licences and certificates. In line with the
Directive, the Amending Act has excluded metro drivers from this licensing
and certification system. According to new wording of Article 22 PK, the
5 Komunikat Ministra Infrastruktury z dnia 25 listopada 2009 r. w sprawie niestosowania
niektórych przepisów Unii Europejskiej dotyczących praw i obowiązków pasażerów w ruchu
kolejowym [Communication of the Minister of Infrastructure of 25 November 2009 on non-
application of some EU provisions regarding rights and duties of passengers in rail transport],
Journal of Laws 2009 No. 77, item 961.
6 Judgment of the Constitutional Tribunal of 3 December 2009, KP 8/09, Journal of Laws
2009 No. 78, item 985.
7 OJ [2007] L 315/51.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
5. LEGISLATIVE DEVELOPMENTS IN RAIL TRANSPORT IN 2009 259
UTK President issues, prolongs, suspends and withdraws such licences. The
regulatory authority updates also the related data and issues duplicates. The
Directive specifies the minimum conditions to be fulfilled by a candidate as
regards medical requirements, basic education and general professional skills.
A driver who acquired a licence may apply for a certificate. Certificates are
issued by railway operators and infrastructure managers. The procedures of
issuing certificates are regulated by railway operators and railway managers
(Article 22b PK). One driver may hold one or more certificates. Each of
them shall indicate both the rolling stock which the holder is authorised to
drive and the infrastructures on which he/she is authorised to drive. The UTK
President runs a license record, a list of entities entitled to train and examine
the applicants for licenses and certificates and a list of entities authorized
to conduct medical examinations required for obtaining and ensuring the
validity of licenses or certificates. Article 22c PK includes now special rules
on training costs incurred by an operator or infrastructure manager in cases
where the employment contract, or of any other form of cooperation, is
dissolved pre-term on the account of the driver. This provision implements
Article 24 of the Directive, which obliges Member States to ‘ensure that
the necessary measures are taken in order to ensure that investments made
by a railway undertaking or an infrastructure manager for the training of
a driver do not unduly benefit another railway undertaking or infrastructure
manager in the case where that driver voluntarily leaves the former for the
latter railway undertaking or infrastructure manager’. Taking into account how
high the training costs for train and locomotive drivers are, this rule may be
of a significant importance.
The provisions concerning train drivers and the system of their licensing
and certification shall enter into force on 4 December 2010 that being the
transposition deadline for Directive 2007/59/EC. Finally, the Amendment
Act limits the validity of licensing documents issued on the basis of previous
provisions until 1 January 2017 and thus, from that moment on, drivers will
be obliged to have new licences and certificates issued in line with Directive
2007/59/EC.
3. Right of access to infrastructure for EU/EFTA railway operators providing
international passenger services
The second most awaited amendment of rail transport law in 2009 was the
further opening of railway services, this time, with respect to international
passenger travel. The amendment was forced by Directive 2007/58/EC of the
European Parliament and of the Council of 23 October 2007 amending Council
Vol. 2010, 3(3)
6. 260 KATARZYNA ZAWISZA
Directive 91/440/EEC on the development of the Community’s railways and
Directive 2001/14/EC on the allocation of railway infrastructure capacity and
the levying of charges for the use of railway infrastructure. The Directive
was enacted as a reaction to the difficulties experienced by long-distance
rail services in Europe and the competitive pressure of low-cost airlines. Its
transposition consisted of the introduction of provisions on the right of access
to infrastructure for rail carriers from other Member States operating in the
international passenger services field.
The amended Article 29a(1) PK contains now the right of access to
infrastructure in order to provide international passenger services by railway
undertakings established in other Member States of the EU and Member
States of EFTA - parties to the EEA Agreement. It concerns undertakings
authorized to provide rail transport services according to the law of the
Member State of their establishment8. The previous wording of Article 29(1)
PK acknowledged their right of access only with respect to international goods
transport. Article 29 (4-11) were added by the Amendment Act of 25 July
2009. They set out a procedure for operators established in other Member
States providing international rail passenger services to apply for the allocation
of railway lines in Poland. These applications are necessary to enable an
infrastructure manager to plan its railway timetable9. The application is to
be filed at latest six months before the day when a new timetable is to be
introduced. The Polish railway timetable is fixed once a year; it changes at
midnight on the second Saturday of December; it may also be exceptionally
changed at midnight on the second Saturday of June in particular because of
changes in regional timetables of passenger trains (Article 30 PK).
The UTK President was charged with ensuring equal infrastructure access
for those railway operators who provide international passenger services
including those established in other EU/EFTA Member States (Article
13(2)(2) PK).
The right of access to a railway line may be limited on request of an operator
or a competent authority fulfilling a public service contract. This limitation may
be based on two reasons. First, a limitation may be justified if most services
provided by the applicant are to be provided within the Polish territory.
8 This results from the fact that Council Directive of 29 July 1991 on the development of the
Community’s railways (91/440/EEC) applies to the management of railway infrastructure and to
rail transport activities of the railway undertakings established or to be established in a Member
State (Article 2(1). According to Article 4(1) of Directive 91/440/EEC, a railway undertaking
shall be entitled to apply for a licence in the Member State in which it is established.
9 Article 30 PK regulates the procedure for the composition of the rail timetable; it contains
special provisions concerning rail passenger services introduced by the Amendment Act of
6 December 2008 – adding paragraphs 2 a) – 2 c) to this Article, which aims to adjust the
timetable to better answer the needs of passengers.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
7. LEGISLATIVE DEVELOPMENTS IN RAIL TRANSPORT IN 2009 261
Second, a limitation may be justified by the fact that a planned connection
would injure the economic equilibrium of services which are provided on the
basis of public service contracts (the motion for such examination may also
be filed by an infrastructure manager). The possibilities of access limitation
result from Article 10(3a -3b) Directive 91/440/EEC (added by Directive
2007/58/EC). If it is established that a connection would threaten the economic
equilibrium of public services, the limitation may concern the stations at which
an operator plans its train stops or the frequency of services (compatible with
Article 10(3b) Directive 91/440/EWG). Its addressees may file a motion for
the reconsideration of its case and than a complaint to an administrative court
against a renewed decision.
The details of the access granting procedure to railway undertakings established
in other Member States are contained in the Regulation of the Minister of
Infrastructure of 30 December 2009 on Access to Railway Infrastructure for
Railway Operators Established in Another Member State of the EU or Member
State of EFTA – Party to the EEA Agreement10. Paragraph 2 of the Regulation
specifies what information must be provided to the UTK President and the
infrastructure manage by an external operator 90 days before filing an application
for the allocation of lines. For the timetable 2009/2010, the Amending Act of 25
July 2009 set this time limit for 2 months starting from the entry into force of
this act (it entered into force 14 days after its publication that took place on 16
December 2009). Information provided by an applicant shall include: proposed
the train route and stations on this route – both within and outside of Poland;
a draft timetable; methods of ticket distribution; a draft tariff offer; predicted
number of passengers differentiating the number of passengers transported
within the Polish territory; predicted number of passengers getting on and off at
each station in Poland; predicted income, indicating income expected from the
services provided within the Polish territory; numbers and types of seats offered
and train’s commercial speed. As annexes to the application, the Regulation
requires a declaration on the fulfilment of specified technical requirements
and attested copies of license and safety certificate issued for the operator by
competent authorities. Information contained in the application is delivered to
the authorities awarding public service contracts on this route and to railway
operators using it (as required by Article 13(4) added to Directive 2001/14/EC
by Directive 2007/58/EC).
Paragraph 3 of the Regulation lists what type of information must be provided
in a request for checking the principal purpose of a service and for examining
the economic equilibrium of a public service contract. The list is similar to that
contained in the application for rail routes. It additionally covers: the timetable
10 Journal of Laws 2010 No. 2, item 7.
Vol. 2010, 3(3)
8. 262 KATARZYNA ZAWISZA
and tariffs on the line concerned; predicted income from the public service and
its predicted decrease by the services of the applicant as well as; the number of
passengers getting on and off at stations where the applicant plans its train stops.
The UTK President should also receive an excerpt of the public service contract.
Last important issue that is regulated in paragraph 4 of the Regulation, are the
evaluation criteria to be used by the UTK President. The first group contains
criteria of assessing the international character of the service: proportion of the
train route, number of stops and income (all these elements should show the
difference between passenger transport within and outside of Poland) and the
number of trains running within a 24 hour slot. The second group lists criteria
of appraisal whether the connection would infringe the economic equilibrium of
public service contracts. The latter include not only tariffs, predicted incomes on
the route within Poland, planned number of stops within and outside of Poland,
numbers and categories of seats, train’s commercial speed, timetable including
the times of stops and trains frequency, but also profitability of the public service
concerned and the amount of compensation paid by the authority that awarded
the public service contract.
It is hard to evaluate the effects of the opening of rail passenger transport.
It is to be expected that the entrance of foreign operators will occur gradually
primarily due to high entry costs. Press releases of January 2010 stated that
no EU/EFTA railway operator was using this right at that time but that the
German operator DB Bahn has indeed filed an access request11. At the same
time, starting with the timetable for 2009/2010, passenger connections were
reorganized and many cancelled. In May 2007, the UTK President launched
clarification proceedings to check the functioning of the right of access for
railway passenger transport during the use of the 2009/2010 timetable in
order to ensure the proper functioning of the railway transport market12.
An explanatory proceeding was also launched by the President of the Polish
Office for Competition and Consumer Protection (in Polish: Urząd Ochrony
Konkurencji i Konsumentów, hereafter UOKiK) in order to check the realisation
of passenger carriages, the provision of infrastructure access by their managers
11 ‘Deutsche Bahn: jesteśmy zainteresowani przewozami pasażerskimi w Polsce’ [‘Deutsche
Bahn: We are interested in passenger rail transport in Poland’] (source PAP), 5 January
2010, available at http://logistyka.wnp.pl/deutsche-bahn-jestesmy-zainteresowani-przewozami-
pasazerskimi-w-polsce,98241_1_0_0.html.
‘W 2010 roku kolej w Polsce czeka trzęsienie ziemi – zapowiada Dziennik Gazeta Prawna’
[‘In 2010 railways in Poland will experience sort of earthquake’] (source: Dziennik Gazeta
Prawna), 5 January 2010, available at http://logistyka.wnp.pl/polscy-pasazerowie-pojada-
niemiecka-koleja,98151_1_0_0.html.
12 ‘UTK wszczął postępowanie ws. dostępu do infrastruktury’ [‘UTK initiated a proceeding
on an access to rail infrastructure’] Rynek Kolejowy. Prawo i Polityka, 7 May 2010, available at
http://www.rynek-kolejowy.pl/szukaj&kategoria=3%7Cstrona=1.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
9. LEGISLATIVE DEVELOPMENTS IN RAIL TRANSPORT IN 2009 263
and potential violations of consumer rights connected with the lack of accurate
information on cancelled and changed railway connections13.
4. Duration of framework agreements
Changes resulting from Directive 2007/58/EC (as it amended Directive
2001/14/EC) concerned also the duration of framework agreements between
railway operators and infrastructure managers on the basis of which the former
use the allocated routes. According to Article 31(2–4a) PK, these agreements
will be now concluded, on principle, for a period of maximum five years
with possible renewals. In exceptional circumstances, justified by necessary
investments, framework agreements might be concluded for a duration of
15 years or longer. These two possibilities should facilitate investments in
specialized infrastructure.
The provisions on access granted to passenger railway operators from other
Member States and on the duration of framework agreements entered into
force on 1 January 2010, as required by respective provisions of Directive
2007/58/EC.
III. Licensing of undertakings providing railway transport of
passengers or goods or in traction services
The railway market was also affected by the Regulation of the Minister
of Infrastructure issued on 5 June 2009 on the Procedure of Submission and
Appraisal of Applications for Licenses which Authorize an Undertaking to
Perform the Economic Activity that Consists of the Provision of Railway
Transport of Passengers or Goods or Providing Traction Services and on
License Patterns14. This Regulation implements the pre-accession Council
Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings15.
According to the new act, applications may be filed either by post or directly
at UTK headquarters. In cases of unfinished or incorrect documentation,
the applicant is summoned by the UTK President to complete it. After the
examination, the procedure finishes with a decision of the UTK President
13 UOKiK Press Release of 6 May 2010: http://uokik.gov.pl//aktualnosci.php?news_
id=2015&news_page=2.
14 Journal of Laws 2009 No. 94, item 775. The Act was analyzed by the author in: ‘Legislative
Developments in Rail Transport in 2008’ (2009) 2(2) YARS with respect to scarcity charges.
15 Official Journal L 143, 27.6.1995, p. 70.
Vol. 2010, 3(3)
10. 264 KATARZYNA ZAWISZA
granting or refusing to grant a license. The Regulation contains two license
patterns. The first authorizes an undertaking to perform the economic activity
of providing rail transport of passengers or goods (Annex 1) while the other
authorizes an undertaking to perform the economic activity of providing
traction services (Annex 2). Both license patterns include information on the
holder, on the type of license and its validity as well as on the conditions of
its use.
IV. Access to infrastructure and scarcity charges
The Minister of Infrastructure issued also a new Regulation on 27 February
2009 concerning the Conditions for Access to and the Use of Railway
Infrastructure16 that repealed the previous Regulation of the Minister of
Transport on the Conditions for Access to and the Use of Railway Infrastructure
of 30 May 200617. The changes introduced by the new act were a continuation
of the amendments made by the Act of 24 October 2008 Amending the Act on
the Commercialization, Restructuring and Privatization of the State Company
‘Polish State Railways’ and the Act on Rail Transport18. The new Regulation
was intended, among other things, to ensure full compliance in this respect with
Directive 2001/14/EC. It also introduced many editorial changes improving the
comprehensibility of the act.
Rules on congested infrastructure were among the key changes from
the point of view of market regulation. Previously, when the capacity of a
line or its fragment was insufficient to satisfy the requests of all operators,
the infrastructure manager negotiated the price with interested operators
until the capacity and the demand for transport in a given time period were
balanced (the manager had to consider the rules on route allocation with the
priority of passenger services and public service obligations, the allocation
of routes which were used by the same operator in the preceding timetable
and framework agreements, regulated in paragraph 3(13) of the previous
regulation). According to paragraph 3(8) of the new Regulation, unallocated
capacity will now have to be put on auction by the infrastructure manager
under the supervision of the UTK President. The auction will lead to the
establishment of the level of the basic charge increase for this infrastructure.
On the basis of paragraph 19(3) of the Regulation, the manager is obliged
to publish every year a regulation specifying the procedure to be followed in
16 Journal of Laws 2009 No. 35, item 274.
17 Journal of Laws 2006 No. 107 item 737, as amended.
18 Journal of Laws 2008 No. 206, item 1289.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
11. LEGISLATIVE DEVELOPMENTS IN RAIL TRANSPORT IN 2009 265
case of an auction concerning congested infrastructure. Unlike the earlier
solution, the new procedure should no longer raise doubts from the point
of view of Article 30(3) Directive 2001/14/EC seeing as it provides for direct
supervision of the procedure by UTK President. Indeed, Article 30(3) of
the Directive allows negotiations between applicants and an infrastructure
manager on the level of infrastructure charges only under the supervision of
an appropriate regulatory body, requiring it to intervene if negotiations are
likely to contravene the Directive.
The new Regulation shortens the time in which the manager should draw up
a draft timetable and deliver it to the operator for consultation; the operator is
now obliged to do this not later than three months after the expiration of the
deadline for the submission of applications for route allocation. An operator
is entitled to submit observations and to propose changes to the draft if it
does not satisfy its requests. After receiving such observations and proposals,
the manager should inform the operator within seven days if it is unable to
make the proposed changes. In this case, the manager shall consult with the
operator within fourteen days from receiving the proposed changes. On the
basis of such draft, the manager formulates a binding timetable and delivers
it to the operator in the form of a notification of the allocated routes. This
notification constitutes a confirmation for the reservation of access to the
infrastructure required (all this procedure is described in paragraph 4 of the
Regulation). Paragraph 5 enumerates the reasons that may justify a refusal of
route allocation by the manager.
Paragraphs 6-18 of the new Regulation concern charges. Many provisions
have undergone editorial changes; in general, the new act is clearer and more
accurate than the previous one; for instance, paragraph 6 specifies now in
more detail what elements are taken into account while establishing the rate
of the basic charge for a given category of railway lines. The new regulation
unifies the charges and makes the system simpler and more comprehensible
overall. It reduces the number of train categories which are subjected to
different rates of the basic charge – four categories (paragraph 8(1) of the
previous regulation) were reduced up to only two categories, namely passenger
and goods trains.
The Regulation eliminated separate rates for trains in intermodal transport
and for separated railway vehicles. This eliminated situations when a railway
operator, irrespective of whether it uses intermodal carriages or not, co-finances
such carriages and bears the costs generated by other market participants. This
situation was caused by the fact that the older provisions had established lower
rates for intermodal carriages, what created benefits for those operators who
provided such services (intermodal carriages). Moreover, the elimination of
a lower rate for separated railway vehicles should encourage operators to
Vol. 2010, 3(3)
12. 266 KATARZYNA ZAWISZA
eliminate unnecessary runs of such vehicles. It will also cut out the paradox
when the operators that less often used separated railway vehicles had been
financing the costs created by those operators that used such vehicles more
frequently.
The costs taken into account for the calculation of rates are also defined
in more details now. Paragraph 8(1) of the Regulation issued on 27 February
2009 states that rates are calculated for the infrastructure access to which
is been planned. Furthermore, paragraph 8 point 3 clearly stipulates that
rates for lines of the same category and the same total gross weight should
be identical. The rules on discounts have also been changed. The previous
provision (paragraph 10(2) of the old regulation) stated that the discount,
meant to increase the use of lines with a high level of untapped capacity, could
not have been higher than: the sum of variable costs, costs of credit-service
maintenance as well as maintenance and repair costs sued for the calculation
of the rate. The new paragraph 9 point 2 limits the discount to that part of
the charge which results from indirect costs only that include costs related
to contracts regulating access to infrastructure – these may be e.g. costs of
management, costs of ensuring safe and hygienic work, property insurance,
costs of the supervision of construction etc. As a result, the qualification of
costs as indirect should be made on a case by case basis. The new Regulation
no longer differentiates between constant and variable costs. Its paragraph 10
introduced a sharp limitation for the minimum rate of the basic charge - it may
not be lower than 75% of the rate for a given category of railway lines and the
total gross weight of a train. Paragraph 18 point 2 of the Regulation clearly
states that in cases where an operator resigns from the run of a train at least 30
days before its planned date, the manager will not collect reservation charges.
Moreover, point 1 of paragraph 18 specifies that the reservation charge is
calculated separately for each route that has been reserved.
The new Regulation does not allow the manager to apply indicators (defined
by the manager himself) that decrease the rates of the basic charge and
correspond to the decreased costs in some situations. Previously, it happened
e.g. when an operator applied for the allocation of a significant percentage of
the capacity or when it was the only operator providing carriages on a given
line. Even if the possibility to decrease the rates in this way was limited to
situations when the decreasing indicators concerned equally all the operators,
the change in this scope should improve the clarity and competitiveness. On
the contrary, the regulation upholds some of the situations when the manager
may apply the indicators increasing the rates.
The new act obliges also the manager to deliver to the UTK President
(nine months before the introduction of a new timetable, it used to be eleven
months) draft rates of scarcity charges (for both basic charge and charges
YEARBOOK of ANTITRUST and REGULATORY STUDIES
13. LEGISLATIVE DEVELOPMENTS IN RAIL TRANSPORT IN 2009 267
for additional services) together with the list of managed railway lines, rates
for passenger and goods trains on these lines with the indicators increasing
them and the rules on discounts. An operator is also entitled to demand the
presentation of the draft and of the aforementioned list [paragraph 16(1-3)].
This should guarantee greater procedural transparency.
The rates of the charges as well as their increases and discounts should
be calculated so as to ensure protection against unjustified increase of the
previous and the actual level of the rates [paragraph 16(4)]. Thus, the UTK
President should ensure that a manager does not make use of its monopolistic
position and does not collect excessive charges (paragraph 17 point 1 together
with paragraph 16(4) of the draft) in the course of the procedure that finishes
with the acceptance of the rates. When doubts arise as to the increase of the
rates established by an operator, the UTK President may consult with auditors
or independent experts.
Despite all these changes meant to ensure full compliance with Directive
2001/14/EC, the European Commission decided in June 2010 to refer
Poland (among thirteen other MS) to the Court of Justice for failing to
correctly implement Directives 91/440/EEC, as amended, and Directive
2001/14/EC19.
It can be concluded on the basis of the above analysis that the recent changes
in Polish rail transport law are surely going towards an increase in competition
and competitiveness. The important and strenuous goal of restructuring and
modernizing Polish railways clearly remains. The year 2010 is full of plans
to restructure the PKP holding and in particular, ensuring full legal and
functional independence of PKP PLK (the main infrastructure manager in
Poland) from railway operators. There are also drafts of laws intended to
enable railway companies to be declared insolvent. Time will show whether
EU legislation and the constant vigilance of the European Commission, will
manage to speed up this process. Important EU directive are to be transposed
into the Polish legal systems in 2010 including, for instance, Directive 2008/57/
EC of the European Parliament and of the Council of 17 June 2008 on the
interoperability of the rail system within the Community20.
19 EUROPA Press Release IP/10/807 of 24 June 2010: Rail services: ‘Commission
legal action against 13 Member States for failing to fully implement first railway package’,
available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/807&format
=HTML&aged=0&language=EN&guiLanguage=en
20 OJ [2008] L 191/1.
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