EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

law. As indicated by Kiczka, the education of public law, and in particular of administrative law, was connected with a specific behavior of the legislature, as it was associated with the replacement of the consensual mechanism of shaping legal relations in society on the basis of an individual – a public authority body in favor of a one-sided model of establishing legal norms (Kiczka, 2008, p. 67). For example, changes in Polish doctrine began to be noticed at the beginning of the 1970s. As Jaworska-Dębska points out, it was then that the issues of bilateral forms of operation of the administration began to be of interest. Initially, however, the research focused on the so-called administrative agreement and its public-law nature, and rarely applied to classic civil-law contracts such as, for example, a loan, rent, or lease. Today, they have a significant share in the functioning of modern public administration (Jaworska-Dębska, 2008, p. 13). Currently, the most popular forms of action in the science of public law are the ollowingg: classic civil law contracts, administrative contracts, settlements, or public-private partnerships. It seems that the dominant view is the rising need to use contracts by public administration, especially that legislation in individual countries introduces legal solutions enabling action in this area. In particular, it is worth distinguishing contracts used in public procurement procedures or contracts used in procedures of entrusting tasks to public benefit organizations. These agreements do not constitute a homogeneous form of action by public administration – they are classified as bilateral forms of action of a heterogeneous legal nature, and at the same time defined in various ways: administrative contract (referring, though not always, to the structure of the contract used in broadly understood Western countries), civil law contract dominated by the regulation of public law or separate, normatively, types of unnamed contracts (Kokocińska, 2020, p. 184). However, it should be remembered that the reflections presented in this paper concern the concept of border law. Despite the fact that public authorities use classic civil law instruments in their activities, from the point of view of the basic values ​of the civil law relationship, it may not always be considered that these values ​are met. It is indicated in the literature that a civil law relationship can be called a relevant relationship on the basis of substantive law, between equal and autonomous entities (Partyk, 2015). A public administration body cannot fully use the freedom to shape civil law relations, because the field and scope of concluding contracts is often strictly delineated by statutes; There is also no freedom to shape the content of the contract and choosing the other party. Exceeding powers by a public administration body or failure to protect the public interest may result in certain consequences for persons acting on behalf of public administration bodies, as well as for the validity or effectiveness of the contracts themselves. As a rule, the effect of invalidity is a consequence of a lack of competence or exceeding it. As Machnikowski pointed out, however,

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