I can mention the work published in its entirety and titled „The transmission easement in Polish law,” Warszawa 2014, Wolters Kluwer, as a scientific achievement in the meaning of Article 16 par. 2 item 1) of the Act of 14/03/203 on scientific degrees and on the scientific title and on the degrees and title in arts.
This monograph has the nature of an analytical legal dogmatic study of a new legal institution, i.e. the transmission easement, introduced into the Polish civil law system by way of the Act of 30/05/2008 on the amendment to the Civil Code Act and certain other acts (Dz.U. [Journal of Laws] of 2008, No. 116, item 731). The interpretation of the provisions of law is, to a limited degree, based on the derivative concept.
The transmission easement is not covered by the laws of the European Union, the national legislator had therefore greater freedom in the creation of the wording of the provisions of domestic law. It may also be stated that the regulation of the transmission easement meets the requirements prescribed for the allowable interference of the state in the ownership right formulated by the European Court of Human Rights.
In EU legislation, the principle of non-interference regarding ownership system regulations in the provisions of the national law of the Member States has been adopted That principle was expresses in a normative way in the provision of Article 295 of the Treaty Establishing the European Community. There are, therefore, no norms in that Treaty governing the issues relating to the ownership right, and the protection of that right in the legal order of the Community is based on the European Convention on Human Rights and on the judicial decisions of the European Court of Human Rights pertaining to Article 1 of Protocol 1 of the European Convention on Human Rights. Those judicial decisions recognised that state interference is in accordance with the Convention, when such interference took place without a breach of law, to pursue a public interest and with respect of the principles of international law. It is worth noting in that context that there is no transboundary regulation formulating the same requirements for investments in infrastructure in the international dimension; in other words, the construction of national sections of transboundary mains will be governed within relevant legal orders of the various countries.
That factual situation justifies the referenced and analysed provisions of Polish substantive law directly governing the transmission easement and the provisions of law, applicable directly or as appropriate, governing other legal institutions, with disregard for the legal international aspects and of the legal order of the European Union. In addition to the civil substantive law, civil procedural law also influences the establishment and functioning of the transmission easement. Despite strong objections against the excessive role of the procedural law in general, sometimes at the cost of substantive law, the norms of procedural law cannot be omitted from the monograph devoted to the transmission easement. Those norms are applicable to transmission easement, acquisitive prescription and land and mortgage register proceedings.
The monograph is not a textbook, that notwithstanding its part has the nature of a report. That permitted the scientific analysis of the new legal institution in the context of factual needs and against the background of the previous system regulations. The analysis of judicial decisions prior to and after the amendment is specially preferred (in some cases at the cost of doctrinal comments; that is because judicial interpretation always leads to the decoding of a legal norm in contradistinction to the doctrinal interpretation, which does not have to be aimed at the final decoding of a legal norm).
On that basis, it was possible to advance a thesis that the introduction of the transmission easement in the shape bestowed by the amendment act of 30/5/2008 did not solve those factual problems faced by transmission projects, which could not be solved on the basis of the legal status before the amendment to the Civil Code was introduced. That legal status and judicial decisions based thereon enabled the creation of institutions permitting the use of somebody else’s real estate by entrepreneurs for the purposes of investment in infrastructure in both a voluntary formula by way of an agreement, and in a non-voluntary way through a court judgement or an administrative decision.
The legislator’s decision to regulate the question of use of somebody else’s real estate by infrastructure entrepreneurs by means of a new instrument relating to property law is correct. Using the obligation relationship as the basis of the right to take advantage of some else’s real estate would not ensure the stability and appropriate duration of the legal relationship between the owner or perpetual usufructuary and the infrastructure entrepreneur. Each change of the owner or perpetual usufructuary as a result of the transfer of the ownership or perpetual usufruct right would require the condition of the new agreement to be renegotiated. This would also prevent the determination of capital expenditure and the payback time of that expenditure a feasibility study.
The various details, however, in particular establishing the transmission easement by way of a court procedure, give rise to doubts. Court participation in the creation of a limited right in property was governed in the Civil Code before its amendment by the act of 30/05/2008, in the provision of Article 145 of the Civil Code with regard to the right of way and in the provision of Article 151 of the Civil Code with regard to an easement established in the case of construction works with boundary crossing.
The purpose of the monograph was to present selected issues of a particularly significant nature for the functioning of the new institution on the one hand, and a critical assessment of the details of the new legal institution adopted without an in-depth analysis of the previous regulations and with wrong ratio legis. The legislator rightly focussed on the requirements of network-related investments in infrastructure following from disputable problems at the meeting of the infrastructure entrepreneur and the owner or perpetual usufructuary of the real estate. The legislator wrongly held, however, that a reference to the real easement in a traditional shape referring to Roman law would be a solution. The specific nature of the relations between neighbours in ancient Rome caused the rise of substantively new institutions of real easements permitting the use of somebody else’s real estate to a limited degree for the needs typical of the contemporary factual relations. In our times, that construction does not reflect the needs of the trade.
The main difficulty is with fixing the remuneration in relation to the establishment of an easement. Except the provision of Article 39a par. 2 of the Forest Act, civil law does not contain any norms governing the way of fixing the remuneration on the basis of objectivised statutory conditions known in advance.
Another source of difficulties with the determination of the legal conditions of taking advantage of somebody else’s real estate is the great number of contractors of transmission entrepreneurs following from the linear nature of transmission devices. It is therefore necessary to agree the conditions with many entities, whose real estate is located at the route of a transmission device. Special problems occur in a situation when one of the owners does not give its consent to the conditions agreed with the other owners, the lack of such consent being the owner’s right.
The knowledge of the level of project costs at the stage of preparation of the feasibility study is crucial for an infrastructure entrepreneur. Neither the transmission easement de lege lata nor the proposed changes of the provisions of the Civil Code permit the realistic planning of a significant cost item i.e. logistic costs of the construction of transmission devices comprising the costs of acquisition of land across which linear transmission devices are to run.
The significant issue of ensuring the conflict-free and lawful use of somebody else’s land with special consideration for the issue of the magnitude of performances to the land owner or perpetual usufructuary remains to be resolved on legal grounds. If the capital expenditure and payback time are taken into consideration, investors in infrastructure need a durable legal relationship and independence of the changes of parties at the real estate side. Obviously, the ownership right is the most durable and independent legal relationship, but it is not suitable, also in the praxeological context, for the satisfaction of the transmission enterprises’ needs.
The regulation of real easements by law, including the transmission easement, meets some typical needs of the beneficiaries. Meeting the postulate of durability, a real easement may be unrestricted in time. That easement remains independent of the changes of parties in the case of a transfer of the encumbered real estate. As a right in property, that right is effective in relation to each and every owner, perpetual usufructuary and authorised party under the liability bond relating to the encumbered real estate. Finally, as an absolute subjective right, it is effective erga omnes, like the ownership right.
The transmission easement also creates the least burden on the real estate owner or perpetual usufructuary, which burden is in principle reduced to the pati (enduring), without any obligations to act or not to act. That is additionally enhanced by the norm under the provision of Article 288 of the Civil Code, ordering the performance of the easement in such a way that the easement makes the taking advantage of the encumbered real estate the least troublesome.
The encumbered real estate owner or perpetual usufructuary is not obliged to maintain transmission devices located at its real estate. If there are no contractual arrangements to the contrary, the obligation to maintain the devices necessary to perform the transmission easement lies ex lege on the owner of the dominant real estate, in conformity with the provision of Article 289 par. 1 of the Civil Code. By using the norm under that provision as appropriate, one should come to the conclusion that the obligation to maintain the devices lies on the transmission entrepreneur, if it is the owner of the enterprise. Safety reasons fully justify that view: it will be better for gas or crude oil transmission devices to be under the care of specialised enterprises rather than of the real estate owner or perpetual usufructuary. The transmission easement is useful for the construction of future devices, it also permits the settlement of factual states consisting only in possession without a legal title.
With regard to the specific needs of infrastructure entrepreneurs, the transmission easement falls short of expectations. The new legal institution was to improve the planning of new infrastructure projects. It was expected to enable realistic planning of the so-called logistic costs of the construction of transmission devices comprising the costs of acquisition of land across which linear transmission devices are to run. The investor will also be sure it will acquire the right to take advantage of land necessary for routing the transmission device as justified by technical reasons, without the need to hold negotiations with many entities entitled to such real estate, with the result of such negotiations being uncertain. The legislator did not take those needs into consideration when formulating the provisions governing the transmission easement.
The theses advanced by the extensive judicial decisions issued before the amendment of the Civil Code, as analysed in this work, allow the reasonable statement that the current provisions of law on real easement, first of all the right of way, could be the legal basis for taking advantage of somebody else’s real estate also for the needs other than those following from relationships between neighbours. The Supreme Court provided convincing interpretations of those provisions of law, in an extensive or systemic way, enabling the decoding of the relevant legal norms. Additionally, infrastructure entrepreneurs were able to take advantage of the so-called „statutory easement” allowed by Article 124 of the Real Estate Management Act, in the form of an administrative decision restricting the use of real estate by its owner.
The then legal state did not, however, ensure the satisfaction of the needs of investors on infrastructure. By creating a new limited right in property, at least by name, the achievements of the judicature were ossified. That is not an improper procedure, however, failure to satisfy the needs of investors with regard to public interest leads to the superfluum at best.
The circumstances cannot be omitted, either, indicating that there were mechanisms of court settlement of disputes between land owners and infrastructure entrepreneurs before the Civil Code amendment. Judicial decisions referred to in this work are a piece of convincing evidence that such conclusion is reasonable. Thus, the introduction of the transmission easement established by a court is not a novum.
Taking advantage of somebody else’s real estate or right for the purposes of investments in infrastructure is of special importance when such taking advantage is placed in the context of satisfying common needs regarding water, gas and electricity supplies and waste water discharge. From time immemorial, real estate has been a tangible substrate necessary to promote interests and satisfy human needs in both the individual and social dimension. The society cannot function without real estate, whose purpose permits the satisfaction of needs going beyond those of an individual. Such is, undoubtedly, the nature of taking advantage of someone else’s real estate to perform public functions. The construction of infrastructural systems and devices designed for the transmission of energy carriers or water, or for waste water collection, aims at the pursuance of the public interest consisting in the satisfaction of the society’s collective needs. If the transmission easement was to enable taking advantage of somebody else’s real estate for public purposes, a legal institution based on the traditional real easement with subjective modifications and a greater freedom of determining „an appropriate scope” of taking advantage of such real estate will not suffice. An institution not based on statements of will and on an agreement as the basic source for the establishment of the transmission easement, but on an act creating the easement ex lege seems more appropriate. That will lead to the restriction of the private owner’s rights, especially in the sphere of decisions on who takes advantage of his or her real estate, and on how and when that happens. That phenomenon, leading to the rise of a new type of the so-called quasi-public real estate, is already noticed in the doctrine. The ownership of quasi-public real estate has a special feature, namely that such ownership is private in the subjective sphere and public in the functional one.
In the monograph, in the comments de lege ferenda, presented was the doctrinal concept of a public interest easement, which falls into the concept of quasi-public real estate. De lege lata, the transmission easement does not make a reference to that concept, thus constituting a solution not reflecting contemporary trends.
A direct reference to concepts presented in the comments de lege ferenda, falling into the concept of quasi-public ownership, was included in the draft of the new Transmission Corridor Act of 4/05/2011 analysed in the monograph. The draft introduces the determination, in the form of a decision by a state administration body, of the route of the so-called transmission corridors defined as an area segregated from the legal point of view and necessary for positioning and correct operation of transmission devices. Determining the route of a transmission corridor for use for future investments concerns both public and private real estate, with the possibility of filing an appeal against the establishing decision.
Transmission corridors for existing transmission devices are also established in the form of an administrative decision. The addressee of an administrative decision is the infrastructure entrepreneur. The draft assumes that, on the date on which the decision on the establishment of a transmission corridor becomes valid in law, there arises ex lege, for the benefit of an infrastructure entrepreneur, a transmission easement on those items of real estate which are components of the transmission corridor.
Fixing a monetary performance in relation to taking advantage of some else’s real estate is a factual problem associated with investments in infrastructure. Quasi-public ownership contains a private element, too, which should be taken into account when a new regulation is created. In the private context, it is important to set the limits of allowable interference in private ownership for supraindividual reasons and determine an equivalent for the inconvenience associated with taking advantage of real estate in the name of public interest. Judicial decisions formulating the principles of fixing remuneration for taking advantage of somebody else’s real estate were presented in the work. Neither the judicial decisions presented, nor the legal regulation of the transmission easement, permit fixing the remuneration at the stage of the feasibility study i.e. the new project planning stage. A change of that status was also expected by the investors.
In the monograph, presented was a solution conceptually referring to the fixing of statutory interest in the form of a regulation of the Council of Ministers, on the basis of the provision of Article 359 par. 3 of the Civil Code. The Council of Ministers would specify, by way of a regulation, the rules of fixing and the amount of one-off monetary benefit for the owner of the encumbered real estate, taking into account the area and market value of that real estate at the date of disclosure of the relevant right in the land and mortgage register and the size of the transmission device, with the protection of the public interest in mind.
The concept of fixing the predefined or calculable benefit at a possibly early stage of a transmission project was expressed in the draft Transmission Corridor Act. The provision of Article 48 par. 1 contains arrangements permitting the calculations on one’s own account on the basis of the product of four objectivised values (the area of land in the transmission corridor, the average value of one square metre of class V and VI arable land as published by the President of the Main Statistical Office, the province diversification factor and the land group value factor).
The fate of the draft Transmission Corridor Act is unknown (the last published decision was the one by the Government Work Programming Team on the suspension of government work on the draft, adopted on 7/06/2011). The direction taken in that draft should, however, be deemed correct. The conclusion de lege ferenda is reduced to the demand for the return to the draft Transmission Corridor Act and to the discussion on a formula facilitating investments in infrastructure.