Spółki z udziałem jednostki samorządu terytorialnego wobec wolności działalności gospodarczej
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COMPANIES WITH A SHAREHOLDING OF TERRITORIALSELF-GOVERNMENT ENTITIES VIS-À-VIS FREEDOM OF ECONOMIC ACTIVITY
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One of the most disputed issues in considerations on economic freedom as the fundamental right in the Constitution of the Republic of Poland is the issue of inclusion of public business entities in its scope. The considerations of the article are to demonstrate that it is possible to refer to the fundamental right by companies with ashareholding of territorial self-government entities, regardless of the size of such shareholding. Indicating that self-government companies do not belong, as a rule, to the system of public authorities bound by the constitutional rule of legalism would be in favour of such position (Article 7 of the Constitution of the Republic of Poland) which must be exercised only within the limits of law but also based on the law. Therefore, they are not the emanation of the state as apublic authority. Moreover, the companies may oftentimes be in asimilar legal position towards public authorities as private entrepreneurs (e.g. as tax payers, parties in court proceedings or applying for concessions or permits). Therefore, it is possible to accept them as entities using the instrumental form of the freedom of economic activity, limited to the situation of legal analogy of the situation of the public and private entrepreneurs towards public authorities. Such freedom would not include the possibility to refer to it in the context of legal regulations which specifically and not generally refer to all entrepreneurs, specify the legal situation of apublic entrepreneur and at the same time determine the possibility to refer to agiven entrepreneur in such manner.
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