Legal Eye: Legal shortcuts
And there's nothing like a tight deadline to bring out that proverbial "can-do" spirit.
In the last few years, infrastructure projects in Poland have moved at a pace... Well, I wouldn't want to insult the snail-lovers' lobby by making the familiar comparison. The reasons are numerous, including those classic legal bugaboos of unnecessarily complicated laws, legal loopholes and onerous administrative and judicial procedures.
When it came to the challenge of organizing the 2012 European soccer championship, however, Poles found a way to legally cut through the initial red-tape. The solution is simple, but ironic - enact a new, special-purpose law. The Law on Preparation of the Final Rounds of the European Soccer Championships UEFA Euro 2012 came into effect on September 21, 2007, a mere five months after the announcement of the decision that Poland and Ukraine would organize Euro 2012.
EURO 2012 Sp. z o.o.
The law attempts to provide by-passes for some of the road blocks that slow down infrastructure projects. In addressing the question of "who's in charge," the Law placed its bets on business. Special-purpose companies will organize the various Euro 2012 projects. Two Euro 2012 companies, Warsaw and Gdańsk, already exist.
While the Euro 2012 companies will be owned by either state or municipal authorities, they are exempted from some of the statutory limitations on these companies. Most importantly, Euro 2012 companies are not hindered by salary caps which can make it difficult to hire the best managers. Likewise, packing the board with cronies is not profitable because severance pay for management and supervisory board members is limited to one-month's salary.
The government retains a strong voice in the companies. For example, the Finance Minister, Regional Development Minister and State Treasury Minister each get to appoint one member of a state-owned Euro 2012 company's supervisory board, which may not have more than five members.
Contracts
The State Treasury and each of the Euro 2012 companies will sign a contract to specify who is responsible for what. These contracts are supposed to outline a multitude of issues, including deadlines, funds available, responsibility, available assets and real estate, and audit procedures.
The Law also attempts to allow the Euro 2012 companies to make use of simplified public tender procedures. Some observers question, however, whether this privilege complies with EU law.
The Law specifically allows the Euro 2012 companies to finance Euro 2012 projects through public-private partnerships. However, given the complex economic and legal issues surrounding a project such as the National Stadium in Warsaw, the real question is whether any private companies will be interested in the investment.
Administrative matters
In making an infrastructure project happen, the slowest bottleneck is often administrative clearance. The Law attempts to hasten both the expropriation of land for Euro 2012 projects and other administrative decisions. In both cases, shortened deadlines are specified for each step in the procedure. Moreover, administrative decisions go into effect immediately. Finally, there are short deadlines for filing a complaint about a decision, and administrative courts are to act on any complaints quickly.
In preparing this article, the author would like to thank her colleague, Michał Kurzyński, for his insights as an advisor on the drafting of the Law.
Judith Gliniecki is Of Counsel to Wierzbowski Eversheds judith.gliniecki@wierzbowski.pl
