NEWSLETTER - June 2013 www.wbwlegal.pl

Dear Readers

We have the pleasure to present you the June issue of our newsletter.

First of all, we would like to recommend you the article on a precedential decision of the Supreme Court which enables publication of a verdict as a form of compensation for an act of unfair competition.

Additionally, you will find information on the stance of the Supreme Court with regard to the possibility to demand part of costs of a legal proceeding from the remaining partners of a general partnership by a partner of such a partnership against whom a legal action has been taken.

One of the articles also includes the answer to the question whether it is possible to adjust annual fee on perpetual usufruct of land with regard to only one record parcel constituting a part of a real estate property. Furthermore, we would like to present the resolution of the Supreme Court on the possibility to acquire utility easement via usucaption by a transmission company.   

We wish you a pleasant read,

WBW Team


Publishing a verdict as a form of compensation for an act of unfair competition

On 10 May 2013, the Supreme Court granted a decision under which a court may order a business entity breaching the principles of fair competition to publish an unfavourable verdict at the expense of the latter.

The proceeding in the said case was initiated by a company engaging in imports and distribution of Bulgarian wine from the Warna region. From the moment of launching its activity, the company’s sales figures had been constantly growing until the moment when its competitor started to sell wine under the same brand name, with a label and bottle imitating the original product. As a result, the aggrieved party took a legal action in which it demanded that the competitor stop selling the wine in question, withdraw it from shops as well as destroy bottles and labels. Furthermore, the company demanded a publication of the verdict in the press at the cost of the defendant.     

A court of first instance recognized the claim almost in full. It only rejected the demand to withdraw the wine from sales (the defendant practically stopped selling it) and to publish the verdict in the press.  The court justified its decision on dismissing the claim to publish the verdict by stating that this would constitute unacceptable publicity for an alcoholic beverage.  

The court of appeal decided to uphold the verdict of the court of first instance, however, it pointed out that there were two factors determining the impermissibility of the publication. In the opinion of the court of second instance, a possible solution could be a publication of an apology or other kind of statement. The court also stated that the publication of the verdict could be categorised as unjust oppression.

The Supreme Court did not share this opinion as it decided to revoke the court decision granted in the appeal proceeding and remand the case. According to the opinion of the Supreme Court included in the verdict in the case no. I CSK 499/12, the Polish law does not exclude the possibility to publish a verdict at the expense of the defeated party as a form of compensation for loss suffered by the claimant, however, the costs of such a publication should not be excessive so that they not constitute an additional repressive measure.  In its justification, the Supreme Court stated that the verdict was precedential.   

Jerzy Kozerski, lawyer


Costs of court proceedings also to be shared among the partners?

One of the characteristic features of a general partnership is that not only the company itself but also all its partners (unlimited liability) are liable for the debts of such a partnership. The liability of partners is, however, slightly more lenient due to the fact that a partnership’s debtor may conduct enforcement against partner’s assets only if enforcement against the partnership turns out to be impossible. Therefore, as long as the partnership has assets which make the enforcement possible, partners do not need to worry that an enforcement officer will collect debts directly from them. This, however, does not exclude the possibility for the creditor to take a legal action against a partner in order to claim debts of the partnership even before the enforcement against the partnership’s assets turns out to be impossible. More importantly, it is up to the creditor whether he or she claims the debt from one, several or all partners at the same time. If the creditor chooses only selected partners, the partner who pays off the debt will have the right to demand of the remaining partners that they proportionally pay him or her back the payment made to the creditor.   

The Supreme Court has recently been faced with the question whether, in the situation described above, a partner in a general partnership who has fulfilled the claim towards the partnership’s creditor can effectively demand of the remaining partners that they return him or her not only the claim fulfilled (the main claim) but also the costs of the court case filed against him or her as a partner. In other words, the Supreme Court was supposed to resolve whether in this case legal fees should be treated as a partnership’s debt or a partner’s personal debt. The Supreme Court answered this question in the resolution of 28 February 2013 (III CZP 108/12) in which it stated that a partner in a general partnership who fulfils a claim towards a creditor of this partnership may proportionally demand from the remaining partners also the costs of a court proceeding, unless a partner requested to repay the costs files an effective objection against him or her for conducting a court proceeding with the partnership’s creditor in an incorrect manner.      

Nastazja Lisek, legal advisor trainee


Annual fee adjustment on account of perpetual usufruct

The question whether the annual fee adjustment on account of perpetual usufruct may relate to one or several record parcels constituting only part of a real estate property released for perpetual usufruct had never been particularly analysed before. Nevertheless, the need for a conclusive resolution of this matter has been raised on a number of occasions.   

In its resolution of 15 May 2013, the Supreme Court in the case no. III CZP 24/13 answered the legal question posed by the Regional Court in Warsaw in the said matter.

The Supreme Court pointed out that the annual fee adjustment on account of perpetual usufruct may only include the entire land property for which a separate land and mortgage register is maintained. This results from the definition of perpetual usufruct, which is a uniform and homogenous right including the entire real estate in the legal sense and not only a record parcel.   

The court also stated that despite the fact that a plot of land may constitute a real estate separate from a land property, it is not a real estate until the moment of separating it as a real estate. In principle, the rent increase notice made by the owner should relate to the entire real estate property. Also the principle of fee uniformity calls for such an interpretation. According to this principle, a fee determined in an agreement on granting the right of perpetual usufruct is always the same for the entire property and subsequent adjustments relate to the payment defined in this way.      

Owing to the fact that fees on perpetual usufruct are connected with a particular legal notion – the relationship of perpetual usufruct – and not the real estate property as such, the addressee of the obligation is the holder of the right of perpetual usufruct and not the person who is in the possession of the real estate property and that the geodetic division does not necessarily have to correlate with property development, the stance of the court that annual fee adjustment on account of perpetual usufruct should include the entire land property seems justifiable.     

Dominika Kaszynska, lawyer


Usucaption of utility easement by a transmission company

On 22 May 2013 the Supreme Court passed a resolution on the possibility of acquiring utility easement via usucaption by a transmission company.

In 2008 the provisions governing the use of other people’s real estate properties by companies engaging in transmission of electric energy, gas etc. were introduced into the Polish civil code. According to the regulation in force, a business entity may demand that the court establish utility easement over a real estate property where its transmission devices are located. Also the owner of the real estate property for whom transmission devices restrict the free use of his or her real estate may file the same claim.

Introduction of the regulations on utility easement triggered a legal problem in a situation when transmission devices had been installed on the land several or several dozen years before the above mentioned regulations entered into force and thorough all this period of time the owner of the property did not take any actions aimed at retrieving the part of the real estate property occupied by transmission devices. The legislator did not provide for a solution to the issue whether the period over which the business entity held the real estate in the scope of utility easement during the time when this matter was not regulated by law can be calculated to the period necessary for the usucaption of this kind of easement as well as land easement.   

In its resolution, the Supreme Court gave an unequivocal answer to this question by stating that the fact that the regulations governing the utility easement came into effect only in 2008 remains insignificant to the lapse of the period necessary to pronounce usucaption of utility easement. The time during which a business entity held a given real estate property in the scope of utility easement before the regulations governing the utility easement came into effect may be calculated to the period of time necessary to achieve usucaption of utility easement.   

The resolution of the Supreme Court is a great chance for transmission companies as majority of transmission devices were erected in 1970s and therefore, in most cases, the period necessary to pronounce the usucaption of utility easement has elapsed.

Daria Pawelczak, trainee solicitor



This Newsletter is for general informational purposes only. It is not intended and shall not be treated as professional advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.

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