Word for the opening of the conference Cooperatives in the jurisprudence of courts and tribunals in Poland and the European Union.
The author considers the relationship between the establishment and transfer of separate ownership of premises in a housing cooperative under the Law on Ownership of Premises, two development laws and the Law on Housing Cooperatives, as well as two Supreme Court decisions. He concludes that in the case of the creation of separate ownership of premises on the basis of a contract, we are dealing with both the establishment and transfer of the right of separate ownership of premises. The situation is different when the establishment of separate ownership of premises occurs on the basis of a unilateral legal act of the cooperative. The author emphasizes that the transfer of separate ownership of premises does not mean that this right arises ex lege in the course of liquidation, bankruptcy proceedings or enforcement proceedings in a housing cooperative. He states that only the transfer of separate ownership of premises is involved when separate ownership of premises has already been previously established.
In this article the author discusses the most important judgments of the Constitutional Tribunal in cases concerning cooperatives and cooperative law, issued since the beginning of the new Constitution of the Republic of Poland of 1997. In total, the Constitutional Tribunal has examined thirty-five such cases. As the Constitution does not contain regulations relating directly to cooperatives, hence these cases concerned the assessment of individual provisions of cooperative law with the fundamental civil rights guaranteed by the Basic Law. Examples include such rights as the right to association, the right to protection of property, or standards arising from the principle of a democratic state of law.
The article presents a judicial interpretation of the regulations of the Building Law, the Act on Housing Cooperatives and the Act on Ownership of Premises, defining the legal status of a housing cooperative and its members in the construction process. The evolving
position of the Supreme Administrative Court in this respect shows that: 1) The applicable regulations limit the individual procedural rights of members of housing cooperatives that
are owners of residential premises, which are assigned to a housing cooperative representing the interests of owners in proceedings for a building permit. 2) Participation of members of a housing cooperative in the procedure for a building permit appearing as a party “next to” a housing cooperative is allowed in the event of a conflict of interest between the housing cooperative and its members. 3) Recognition of a member of a housing cooperative, who is the owner of residential premises, as a party to the building permit proceedings is not dependent on the violation of the legal interest of the member, but on demonstrating that
they have their own individual legal interest in the particular case.
This article presents the scope of cooperative law in France and the institution of the Court of Cassation with examples of its jurisprudence in France addressed to cooperative entities. The article points to the characteristics of cooperatives in France, which in itself is a very variable, differentiated, but important phenomenon, as well as a certain specificity that can be a contribution to the discussion about Polish cooperatives. In addition, the article highlights certain specificity in the regulation of cooperatives in France, shows the historical role of jurisprudence in a complicated legal and socio-economic environment. Both the legal framework and the historically developed line of jurisprudence show the specificity of reference to the concepts of law in France. The diversity of cooperative entities and their connection with commercial law and company law is strongly emphasized in theory and in jurisprudence.
The research issue in this study is the issue of declaring bankruptcy of cooperatives in the light of court decisions. A cooperative is a legal person, therefore it is a separate legal entity from its members (cooperatives). A cooperative, including has bankruptcy capacity. Members are not responsible for the obligations of a cooperative that has become insolvent, although it has a special relationship with them. De lege lata, the declaration of bankruptcy of a cooperative by the bankruptcy court does not mean that its members are obliged to make contributions to cover the deficit of the cooperative. Bankruptcy of cooperatives is not a common phenomenon in practice, and the legal regulation of this phenomenon is currently dispersed. The current legal status is so unclear that it is a breeding ground for divergent views and makes it difficult to conduct “collision-free” bankruptcy proceedings.
Article focuses on the subject of giving dischage to the board of directors in the Cooperative. This subject is really complicated and it was rarely presented in doctrine. To make it easier to understand the article contains representative judicial decisions. The issue of discharge is undoubtedly much more popular in the filed od company law than in the fild of cooperative law. However, the judicature concernig discharge under cooperative law may be a source of interesting reflections in capital companies.
This article presents the issue of adopting resolutions by the general assembly of housing cooperatives. It discusses most important issues related thereto, including the organizational model of the above-mentioned cooperatives and the way it is to be shaped, taking into account the prohibition of replacing the general assembly with a meeting of representatives. The article also present the specific legal nature of a general assembly divided into parts and specific solutions related thereto which apply in the process of adopting resolutions. In this context, the analyse includes submitting a resolution to voting of all parts of the general assembly as well as obtaining in the voting process a majority of the total number of members participating in the general assembly. Next, the exception to the prohibition of adopting resolutions on matters not included in the agenda, resulting from the general provisions of the cooperative law, is discussed and the issue of whether this exception applies also to housing cooperatives is analysed. An attempt was also made to interpret the provisions regulating technical aspects of the notice of convening the general assembly. Moving on to further aspects, the article also refers to the issue of appealing against resolutions of the general assembly of housing cooperatives and discusses the group of persons authorized to bring an action for declaring the resolution
invalid or an action for an annulment of a resolution. Finally, although this issue was not addressed by the Supreme Court yet, this article also analyses the so-called alternative methods of adopting resolutions by the general assembly in epidemic periods.
The author considers the liability of the cooperative’s founders and proxies for the legal actions undertaken in the interest of the cooperative before its entry to the court register. Since the cooperative is not established until its registration, the founders and proxies are considered as joint and several debtors against parties to the transactions concluded in the interest of the cooperative. Only after its entry to the court register, the cooperative takes over these debts but may file the recourse claim against its founders or proxies.
The aim of the article is: firstly, an attempt to indicate selected legal problems related to cooperatives operating in the area of rural areas and agriculture, which were the subject of judgments of the Supreme Court, the Supreme Administrative Court and courts of appeal; secondly, determining whether and how the theses of selected judgments affect the functioning of the cooperative or the rights and obligations of cooperative members; thirdly, taking into account the problems that are the subject of court rulings, determining whether changes to legal regulations are needed, and if so, to what extent. The considerations focused on agricultural production cooperatives, and in particular on the problem that was the subject of extensive jurisprudence. Namely, whether the work of a cooperative member in an agricultural production cooperative constitutes a cooperative employment relationship, an employment contract under the Labor Code, or whether it results only from the civil law relationship of membership in the cooperative. In the further part, court judgments concerning dairy cooperatives, cooperative groups of agricultural producers, cooperative organizations of fruit and vegetable producers were analysed. Reference was also made to the judgment of the Court of Justice of the European Union regarding taxes in agricultural cooperatives in Italy. In the summary, the author stated, inter alia, that a significant number of court decisions and varied interpretations lead to proposals for amending legal regulations. It is reasonable to grant members of agricultural production cooperatives performing work in the cooperative at least the same rights as employees with an employment contract. In this regard, it is worth introducing appropriate changes to the Cooperative Law or the Labor Code. In the author's opinion, it is also justified to consider the inclusion in the Cooperative Law of separate regulations concerning a dairy cooperative, including the definition of such an entity. Legal provisions concerning milk contracting agreements concluded by cooperatives with a dairy cooperative, as well as general rules concerning such a contract, would also be justified. Currently, cases are pending before the courts regarding such contracts, including changes to the terms and regulations of such contracts by dairy cooperatives.
The article covers the analysis of the most important problematic issues concerning the operation of the cooperative’s power of attorney within the framework of the general meeting, meetings of representatives and meetings of member groups in the cooperative from the perspective of the Supreme Court case law. Research attention was focused on the analysis of discrepancies in the jurisprudence of the Supreme Court regarding the admissibility of replacing a member of a cooperative by a proxy as part of meetings of member groups. The problem
of the legal nature of the power of attorney to replace a member of a cooperative during meetings of the general meeting of the cooperative and the admissibility of using a blank power of attorney in intra-cooperative relations was also discussed.
The article is an analysis of three judgments of the Supreme Court issued in the years 2019-2022 regarding the issue of membership in cooperative savings and credit unions. The first of these judgments concerns the liability of members for losses incurred in connection with the declared shares. The description of the current legal status is preceded by a short historical outline of the development of members additional liability. Lawsuits were initiated by the trustees of the bankruptcy estate of credit unions, who demanded additional payments from members for double liability despite the lack of a resolution of the general meeting on such a method of covering the loss. One of these proceedings ended with a request to the Supreme Court,
which was answered by the Supreme Court in its judgment of 12 December 2019. Another membership issue dealt with by the Supreme Court is the issue of the obligation to cover the declared share of a member of a credit union and the consequences of its failure. This issue was also brought to the attention of the Supreme Court as a result of the actions of trustees of credit unions who, despite the lack of a legal basis and the obvious limitation of claims, tried to claim undue benefits from members. The Supreme Court, in a way, confirmed some of the theses from the judgment of 2019, indicating that a member of a cooperative fund is primarily a consumer and as such deserves increased protection. The third discussed issue is the issue of membership of credit unions in the National Association of Cooperative Savings and Credit Unions, which associates all credit unions in Poland. The ruling issued in this case was initiated by the action of the bankruptcy trustee of credit union, who stated that the declaration of bankruptcy is tantamount to termination of membership in the National Cooperative Savings and Credit Union. However, the Supreme Court indicated that as long as the legal existence of the credit union lasts, even in the course of bankruptcy proceedings, it remains a member of the National Cooperative Savings and Credit Union.
The paper reflects on the jurisprudence of the Polish Constitutional Tribunal, regarding cooperative savings and credit unions, and its legal effects. Four such rulings have been issued until now. The first decision K 53/07 of 24th March 2009 concerned provision of Article 15 of Financial Support for the Families in Obtaining Their First Apartment, amending an Old Cooperative Savings and Credit Unions Act of 1995, the second decision Kp 10/09 of 12th January 2012 concerned Articles 17 and 91 of the New Cooperative Savings and Credit Unions Act of 2009; the third U 2/12 of 18th February 2014 concerned Regulations of the Minister of Finance, establishing specific accounting rules for cooperative savings and credit unions, and the fourth K 41/12 of 31th July 2015 concerned all of the most important provisions of the New Cooperative Savings and Credit Unions Act of 2009. The first, the third and the fourth decisions were astonishing for credit unions members and activists. In the case resulting in second aforementioned decision, initiated by President of Poland Lech Kaczynski, who claimed that the New Cooperative Savings and Credit Unions Act of 2009 should be examined by Constitutional Court before its signing, one could observe a surprising action of the next President Bronislaw Komorowski who withdrew the most important part of the claim. On 13th September 2022 Minister of Justice submitte to Constitutional Tribunal a new claim regarding the provision of Article 97 of the Banking Guarantee Fund, Deposits Guaranteeing System and Mandatory Resolution Act (authorising the Banking Guarantee Fund to establish the Minimal Level of the Requirement for Own Funds and Eligible Liabilities MREL for the institutions) in the scope that concern cooperative savings and credit unions.