Search Results

Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

The impact of the revision of the Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 on the posting of workers in the framework of the provision of services on the applicable law to the employment relationship

Witold Kurowski

Language: PL | Published: 29-12-2020 | Abstract | pp. 283-302

The Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 introduced several changes to the Directive 96/71/EC on the posting of workers in the framework of the provision of services, affecting the posted worker’s employment relationships directly. Article 3(1) of the Directive 96/71/EC requires that an employer has to guarantee his workers posted to the Member State, the terms and conditions of employment, in matters listed in it, resulting from the law where the work is carried out, regardless of the law applicable to employment relationships. First of all, the Directive (EU) 2018/957 introduced the new concept of “remuneration” paid to the posted workers. Secondly, it extended the list of mattes in article 3(1) by adding point (h) — “the conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work” and point (i) — “allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons.” Finally, the Directive (EU) 2018/957 established the posting period, not clearly defined before, which should not last longer than 12 months (18 months when the service provider submits a motivated notification).
This paper analyses the main changes introduced by the Directive (EU) 2018/957 amending the Directive 96/71/EC in the employment relationship field.

2020-12-29



Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

A note to the judgment of the CJEU of 12 February 2015 in case Sähköalojen ammattiliitto ry v. Elektrobudowa Spółka Akcyjna (C‑396/13)

Witold Kurowski

Language: PL | Published: 30-06-2019 | Abstract | pp. 191-209

This paper aims to comment an important ruling concerning the Posted Workers Directive (Directive 96/71/EC). In the judgement C-396/13 (Sähköalojen ammattiliitto ry v. Elektrobudowa Spółka Akcyjna), the European Court of Justice provided
its pro-worker’s interpretation of Art 3 of Directive 96/71/EC concerning the scope of the "minimum pay rate". The second issue raised by the European Court of Justice was the assignability of pay claims governed by Polish law based on Art 14 (2) of Rome I Regulation and prohibited under that law. In commented judgement, the Court admitted the assignment of claims arising from employment relationships in light of article 47 of the Charter of Fundamental Rights of the European Union and accepted the trade union’s right to represent the posted workers.

2019-06-30



Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

Distinction between securities law statutes and commercial company law statutes in European regulation of public company takeover bids

Maciej Mataczyński

Language: PL | Published: 29-06-2008 | Abstract | pp. 77-89

The article analyzes the issue of distinguishing the statute of securities law from the statute of commercial company law in the context of the European regulation of takeover bids. Directive 2004/25/EC of the European Parliament and of the Council harmonizes the regulations of member states regarding the takeover of public companies. The article discusses the scope of application of the directive, the competence of the supervisory authority, and the law applicable to takeover bids. Particular attention is paid to the implementation of the directive in Polish law, analyzing the changes introduced in the Act on Public Offering.

2008-06-29



Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

Cross-border Conversion (a Change of a Legal form) of Companies in Private International Law — Selected Issues

Arkadiusz Wowerka

Language: PL | Published: 21-06-2022 | Abstract | pp. 57-78

This paper delas with the selected issues of cross-border conversions of companies in private international law. Conversion is one of the forms of transformations of companies. The basic form of cross-border transformations mostly used by companies are mergers. However, as evidenced in particular by the judgment of the Court of Justice in the case of Polbud, also the change of the legal form is an institution of interest and present in the practice of cross-border activities of companies. In the foreground are the conflict of laws issues arising under private international law, in particular the question of the law applicable to the cross-border change of the company’s legal form. In order to answer this question, a definition of a conversion under the private international law has been provided. A cross-border conversion of a company must be distinguished from a cross-border transfer of the seat of the company as a connecting factor, as they are two completely different operations governed by different conflict-of-law rules of private international law. In the case of Polbud, there are serious doubts as to whether there was a cross-border conversion or cross-border transfer of the company’s seat. The law applicable to cross-border conversions is determined on the basis of the principle of combination or unification of the personal statutes of the state of the exit form and the state of the intended form of the company. Under this principle, however, the application of both legal systems is problematic. Useful guidelines are provided by the model expressed in art. 86c in connection with art. 86q of the directive on certain aspects of company law. The scope of application of the law applicable to cross-border conversions is determined by both leges societatis in question. Cross-border conversion operations also arise qualification problems related to issues such as the protection of creditors, minority shareholders and employees. The harmonized substantive provisions of the directive on certain aspects of company law make it easier to carry out cross-border conversions in the European dimension. The existence of such harmonized norms removes the barriers resulting from the applicable substantive law based on various principles and rules and makes the conflict-of-law issues then practically of secondary importance.

2022-06-21



Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

Careful search for the entities entitled under the economic rights of copyright as a key prerequisite for determining the orphan status of a work

Karolina Rybak

Language: PL | Published: 31-12-2017 | Abstract | pp. 43-76

While heading for development of the digital libraries initiative European Union came across an issue witch preclude digitization of right smart of works located in collections of European cultural institutions. The issue of orphan works become a significant problem, which according to the intention of EU should be comprehensively and resolved in an effective way. For this purpose in the directive 2012/28/EU from 25th October 2012 on certain permitted uses of orphan works, permissible use of orphan works was regulated. The most important of prerequisites is carrying out a diligent search for the rightholders. The aim of this article is to discuss the diligent search, including phases of diligent search, the place where it shall be carried out and standards which it should characterize. The issue is important as obtaining the status of an orphan work in the territory of one of the Member States produce the same results as if the diligent search was carried out in all Member States. The article relates to EnDOW project’s results, which is dedicated to research of diligent search in twenty Member States.

2017-12-31



Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

Searching for the Applicable Law to Remote Work

Arkadiusz Gawron

Language: PL | Published: 30-06-2024 | Abstract | pp. 125-146

The increasing phenomenon of remote working raises challenges for employers, national legislators, as well as for private international law. The complete transfer of the employment relationship to the remote plane moves the centres of activity of the employer and the employee away from each other, which can be seen especially in employment relationships with a foreign element (e.g. employment of a permanent employee living in another country). The question then arises — momentous from the point of view of the conflict of laws rules — as to the law applicable to this employment relationship. The answer must be made in the light of the EU provisions on the law applicable to the individual employment contract (Article 8 of the Rome I Regulation) and the posting of workers (Directive 96/71/EC). Their juxtaposition may result in the need for the employer to take into account the competing legal regimes. Indeed, under Article 8(2) of the Rome I Regulation, the law applicable to an individual employment contract is the law of the country in which the employee habitually carries out his work in performance of the contract. Determining this state may, in an increasingly digital age, give rise to numerous difficulties, not least despite the considerable body of case law of the CJEU. Similar doubts may arise when assessing whether the conditions for posting set out in Directive 96/71/EC are fulfilled. An analysis of the statements of representatives of the doctrine, especially foreign
doctrine, and of the jurisprudence has made it possible to establish that the current conflict-of-law rules are not in line with the modern needs of circulation. There is also a discrepancy between the norms of international labour law and social security regulations. This leads to the conclusion that the intervention of the legislator is necessary in order to balance the conflicting expectations of employers and employees. In this context, the article is both cognitive (it contains an analysis of the existing regulations) and theoretical. The analyses and conclusions presented may also prove useful for the practice of law.

2024-06-30



Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

Graphic representation of a trademark in the light of the Industrial Property Law and Council Directive No. 2008/95/EC

Anna Hołda-Wydrzyńska

Language: PL | Published: 31-12-2011 | Abstract | pp. 109-127

The polish definition of the trademark is based on the fundamental function which trademarks have to fit. According to the general notion, the constitutive condition of a trademark is not an individual or imaginative feature which is important in the copyright law, but only the capability to distinguish the goods and services on account of origin. Firstly, it is important to analyse if a mark fulfills following conditions: it has to be perceivable by human sense, be uniform and self‑dependent against other goods, further it has to be capable to represent graphically. The article presents the graphical capability, which refers to presentation of the mark in the graphical way. That prerequisite was entered into Polish system pursuant to the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trademarks and Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark. That expression is not obvious, particularly because of the interpretation of registration of the marks perceiving in different way than by means of visual, auditory and tactile modality. According to that fact in this paper were presented the notions of the European Court of Justice and the Office of Harmonization for the Internal Market concerning the so called new forms of trademarks. There are shown two different points of interpretation: the traditional and liberal one.

2011-12-31



Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

Measures to counteract the abuse of the idea of ​​patent protection by so-called patent trolls in EU law

Paweł Jasiński

Language: PL | Published: 31-12-2018 | Abstract | pp. 43-62

The phenomenon of patent trolling is a distortion of the idea underlying patent protection. The effects of the so-called patent trolls are, inter alia, the inhibition of technological development, limiting innovation and technology transfer, and restricting access to these technologies for consumers on the market. Negative effects also manifest themselves in showing deficiencies in the patent protection system, lack of trust in this system and reduction of investments in the field of research & development. All these effects are the negation of what was the foundation of the introduction of patent protection. The aim of the author is to analyze the existing regulations of European Union law in terms of possible protection measures against the so-called patent trolls. In particular, the provisions of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights will be discussed. The possibilities of counteracting the phenomenon of patent trolling in court proceedings before the Unified Patent Court provided for in the Agreement on the Unified Patent Court (2013/C 175/01), being part of the so-called the system of the European Unitary Patent. In addition to the analysis of regulations, the judgments of the European courts regarding this issue will also be presented. The analysis of EU regulations and jurisprudence is supposed to be an attempt to answer the question whether current regulations are sufficient for the threat of patent trolling in Europe.

2018-12-31



Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

Jurisdiction and applicable law to non — contractual obligations arising out of restriction of competition. A case of the pharmaceutical sector

Monika Wałachowska

Language: EN | Published: 30-06-2018 | Abstract | pp. 7-27

In this Article the Author has analysed the most important issues arising from the interaction between intellectual property law, competition law and the right to redress, taking into account the cross-border character of the discussed matters. The cases of restraints of competition, having frequently a multinational character raise doubts as to both jurisdiction and applicable law. I believe that the EU’s legal act in this area are not well agreed. Perhaps after introducing the Directive no. 2014/104 the provisions of both Brussels I-bis and Rome II should be reconsidered, taking into account the specific character of delicts in the field of competition law. On one hand the wording of art. 6(3) of Rome II somewhat reconciles the interests of both EU-cases and non-EU cases, but the risk of applying the mosaic principle in the discussed cases seems inevitable. Perhaps for these matters the choice of law should be considered. For example the parties could have the possibility to choose the law of one of the affected markets (both of an EU-country or non-EU country, since art. 3 Rome II provides for an universal character of the regulation). When in comes to jurisdiction it is left to the courts to interpret the notion of both place of act and place of its consequences, which seems to be a propersolution. In this way we can apply a case-by-case method.

2018-06-30



Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

Evaluative Mediation in Business Disputes Under the Provisions of Polish Law From the Perspective of Europan Union and International Law

Katarzyna Pokryszka

Language: PL | Published: 29-12-2023 | Abstract | pp. 95-138

The 2015 amendment to the Polish Civil Procedure Code provided a legal basis for the evaluative mediation. The amendment intends to improve the effectiveness of mediation in civil and commercial cases in Poland. The aim of the article is to analyse the premises for conducting evaluative mediation under Polish law in the light of the provisions of international law and European Union law, which set forth the standards for conducting mediation in business disputes. The article discusses the concepts of facilitative and evaluative mediation and points out the controversies that may arise against the background of the application of evaluative techniques from the point of view of the basic principles of mediation as a dispute settlement method. The author focuses on the interpretation of the definitions of mediation. She presents fundamental principles of mediation as enshrined in the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (2018) and the EU Directive 2008/52 on certain aspects of mediation in civil and commercial matters, considering them as a point of reference for the analysis of the conditions enabling the mediator to propose to the parties the methods of resolving the dispute that have been adopted in Polish law.

2023-12-29



Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

New national regulation of private international law in Poland

Maksymilian Pazdan

Language: PL | Published: 30-06-2011 | Abstract | pp. 9-16

On 4th February, 2011, Polish Parliament has enacted the act on private international law, which was published in the Official Journal No 80, item 432, and came into force on 16th May, 2011. The new law has replaced the old statute from 1965. It constitutes the “national part” of the conflict of law rules, which are in force in Poland, and is coordinated with the European private international law. The act governs the matters excluded from the scope of the regulations Rome I and Rome II and supplements the Hague convention of 19th October, 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co‑operation in Respect of Parental Responsibility and Measures for the Protection of Children. The new law also implements the conflict of law rule established
in Directive 2008/122/EC of 14th January, 2009. The act of 2011 fills out many of the gaps that existed previously (e.g. it determines the law applicable for the power of attorney, the personal rights and the name) and alters certain of the solutions adopted under the law of 1965. It permits, inter alia, a choice of law for the matrimonial property regimes, the marriage contract and the succession. Moreover, the obligations arising out of the unilateral legal acts have been treated differently than in the law of 1965. As with respect to the formal validity of the legal acts
related to the dispositions of the immovable property or the corporate matters (such as the creation, transformation or liquidation of the legal entity), the new law gives up the rule according to which it was sufficient to satisfy the requirements of the form of the lex loci actus.
Finally, the act establishes a general rule, based on the concept of the closest connection, which apply in the circumstances where the act itself or other provisions of Polish law fail to indicate the governing law.

2011-06-30