Verdict of the High Court has a great importance for turn of properties

Who is the owner of infrastructure

Devices used for supplying and piping water, vapour, current and gas away are subject to civilian turn but from the other hand as the infrastructure of company are properties.

Indicated devices and other similar to them are not components of ground or building if they are parts of company or plant –the article no 49 of the civil code constitutes. This regulation appoints the border of the components of company and properties and specifies the range of using the principle superficies solo cedit (what is on the area belongs to this area). The practise is sometimes divergent because lawful results coming from the civil code are interpreted differently what has also a result in jurisdiction.

There is no way to overestimate this interpretation

All the more is worth knowing views of the High Court (the sentence from 13 May 2004, act III SK 39/04 published in OSNAPiUS 2005, no 6, item 89) because they are importance for the market of properties turn.

Although fundamentally verdict treats property matters of service lines of the water –supply system on the basis of act, which concerns providing with water and piping sewage away (according to this act which is in force till 16 August 2005) the High Court included essential remarks concerning the civil turn of net infrastructure in its justification.

The significance of the interpretation of the article no 49 of the civil code cannot be overestimated. Taking unregulated lawful status of grounds into consideration – one of the basic investment barriers –the High Court specifies principles allowing to establishing the property status of pointed devices -cuts current litigations.

Decisive lawful event but not actual

The High Court consented to more common presenting in literature the law of view, the appliances - from article no 49 of the civil code – even in the moment of physical connection with the net – are the components of this property on which they were built but the components of company are only on the basis of lawful events which are known for the civil law.

Additionally, the conditional expression from the article no 49 of the civil code: if they are components should treat these lawful events (for example: lend contract) but not actual ones (connected with the net). Holding these rules is depended on that fact the contentious appliances are the components of the bigger, more organised whole as the company is. According to the High Court it is not dubious that after amendment of the civil code from 1990 it concerns the company defined in the article no 55 1 of the civil code. Although, the expression: “they are components of company” occurs in both regulations, is little precise and their expressions, which are also in the title III (Property) of the first book ( general part) showing that: “being components of company”, means the property law and other property laws are entitled to the company ( the article no 44 of the civil code). These laws are property laws which have matter of fact character. The components of company may not be these components the company does not have property laws. According to the High Court the most essential is that they cannot only result from facts but in accordance with general principles of the civil law the basis of gaining these laws must be given law event (for example: legal action) but only exceptionally – direct and clear will of legislator.

With reference to individual elements of the infrastructure, for example: water and sewage, it means that through their physical and functional integration with the net of the company they will not become its components. In consequence, an investor (for simplification an owner of ground and also the owner of the building which there is on it) who built, for instance: water service lines, keeps property law of these services lines also after their physical connection with the general water and sewage net. This kind of interpretation of the article no 49 is supported –the High Court continues – by presenting political conditions, mainly by constitutional principle of protection of property law (the article no 21, the act no 1).

There is not any automatism

This interpretation leaves current line of antimonopoly jurisdiction. There is no doubt these hints included in the justification of the sentence will influence the practise of turn of net infrastructure essentially.

Contrary to current views, the article no 49 of the civil code does not determine that there is any automatism in the transition of property law after connecting installation built by the investor with the power, water, thermal and gas net. For effective transition of property law very essential is proper law action, which is paid (as sale, change, fetch) or is not paid (for example: deed of gift). It means that the investor may have the property law and pass the company service lines for utilization on the basis of specific condition, for instance: lend agreement.

What are the results of it?

The High Court does not analyse further results of presenting interpretation. In spite of it we can accept the fact if the investor built net infrastructure on the property and with the relation to it he had the property law, so he would be able to sell the whole property with the infrastructure or only the infrastructure as the movable thing, but in the second case, he might only sell it to the net company. According to the present views (which concern the automatism of transition of infrastructure’s property) the first of mentioned transaction was almost impossible but the contract activity of sides may be only limited to accounting for expenditure.

In the first of analysed situation the transaction requires the notarial act (as for each sell agreement of property one) but in the second one
(selling the net company only the infrastructure) only ordinary written form is required. In this case, special qualification of buyer causes that the net infrastructure stops to function in law turn as the component of the property and becomes de facto the property.

It is important to notice possible complications resulting from the article no 47 of the civil code which regulates components. Since the article no 49 of the civil code fixes borders between components of the property and the company, the doubt appears, if the net infrastructure after actual and law included in the property of the net company would be subject to the article no 47 of the civil code as the component.

The answer seems to be negative. Companies (in accordance with the article no 55 1 of the civil code) cannot be classified as the thing but only as the group of things and laws, property complex. Speaking about the component of the company we do not speak about the component of the thing. It will be the correct conclusion that the article no 47 of the civil code does not treat the net infrastructure as the component of the company.

After changing jurisdiction line by the High Court there is no doubt these devices mentioned in the article no 49 of the civil code, which are used for supplying or piping water, vapour, gas and current away, are subject to the civil turn and as the infrastructure of the company are also properties.

Michał Głowacki

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The article appeared in Rzeczpospolita on 7 September