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Umowne formy realizacji zadań przez samorząd terytorialny – zagadnienia teoretyczno-prawne

100%

Popowska B.

Studia Prawa Publicznego

2023

issue 3 (43)

9-33

The discussion in the article takes into account two aspects: the specific nature of contracts as legal forms of action of local government bodies, and the special rela- tionship of two branches of law, i.e. administrative law and public economic law. Both directions of this discussion entail a civil law aspect with a extended theory on contracts and the freedom of contract. The study assumes that the element linking the above threads is the principle of the social market economy as one of the foundations of the system of the Republic of Poland, which does not exclude state economic activity, subject to Article 1, Article 2 and Article 5 of the Constitution of the Republic of Poland. This field includes the regulations of the Law on Municipal Management, whose addressees are local government bodies. For the implementation of the tasks assigned to local government in the field of economy, local government bodies enter into contracts; this is one of the legal forms that allows them to take into account the complexity of administration-economy relations (relationships), and therefore third parties: entrepreneurs, contractors, competitors and consumers. An area of study related to the issues stated in the title and which is significant for both theoretical and practical reasons is the regulation of Article 3 of the Law on Municipal Management. This provision provides a specific legal basis for concluding contracts “for the purpose of entrusting the performance of tasks” in the field of municipal management. The article points to the issue of the legal determination of contractual entrustment of such tasks, taking into account the constitutional principle of binding the administration to the law (Article 7 of the Constitution of the Republic of Poland) and the civil law principle of freedom of contract (Article 353¹ of the Civil Code). The scope of freedom enjoyed by local government units in the use of the form of contract in the doctrine is also considered as an element of “organizational independence” of these units, and whose theoretical expression is the constitutional principle of subsidiarity. The article emphasizes the lack of a general and common statutory basis in the Polish legal order that would regulate the transfer of public tasks, as well as the lack of a statutory regulation providing a template(s) for the contract, which is most often referred to in the doctrine as a public-legal contract.

Obciążanie najemców lokali kosztami opłat eksploatacyjnych. Rozważania na gruncie podatku od towarów i usług

100%

Pabiańska A.

Przegląd Prawniczy Europejskiego Stowarzyszenia Studentów Prawa ELSA Poland

2013

issue 1

65-72

This article identifies key problems connected with imposing a value added tax on re-invoicing the costs of utilities relating to rental agreement. I throws doubt on whether all the supplies which the landlord makes to the tenant constitute a single supply from the point of view of VAT. Author discusses possible classification of above -mentioned transaction for VAT purposes (i.e. as an autonomous and separate from tenancy supply or as a indivisible economic supply which it would be artificial to split rental component). It also gives the readers the insight into tax consequences of designed legal and tax classifications. Moreover, the article shows differences between standpoints presented in a recent interpretation issued by tax authorities and judicial decisions. It also gives an overview of the most recent judicial practice of the Court of Justice of the EU connected with re-invoicing service charge. Author emphasizes the relevance of judgments issued by the CJEU (especially the verdict on 27 September 2012 in case C-392/11 Field Fisher Waterhouse LLP v. Commissioners for Her Majesty’s Revenue and Customs which seems to play a major part in resolving the dispute in question).

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1 Przegląd Prawniczy Europejskiego Stowarzyszenia Studentów Prawa ELSA Poland

1 Studia Prawa Publicznego

1 Pabiańska A.

1 Popowska B.

1 2023

1 2013

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Umowne formy realizacji zadań przez samorząd terytorialny – zagadnienia teoretyczno-prawne

Obciążanie najemców lokali kosztami opłat eksploatacyjnych. Rozważania na gruncie podatku od towarów i usług