On 3 August 2008, a new regulation was introduced in the Polish Civil Code in Articles 305 (1) – 305 (4), creating a new legal institution (a new limited real right), namely the transmission servitude. A transmission servitude is established for the benefit of a business entity. It constitutes an encumbrance (in the strict sense of the word) of the servient real property, (a real property necessary for the sake of transmission, e.g. to locate transmission utilities). The legislator did not specify who the business entity may be, but the legal doctrine has developed the concept of “transmission entity”.
This refers to an entity utilising network infrastructure (there are still doubts, however, whether the concept of an entity within the understanding of the provisions on the transmission servitude refer to an entity that only constructs transmission utilities without carrying on business activity related to them).
A transmission servitude may be established by a juridical act (a statement of intent of the property owner must be executed as a notarial deed), or by a court judgment. Both the (transmission) entity and the owner of the property are entitled, having completed negotiations, to request the court to establish a transmission servitude. These cases are examined under non-litigious proceedings, in the first instance by the district courts (sąd rejonowy) with jurisdiction over the location of the servient real property. A transmission servitude could be established as a encumbrance of any real property (land, building, premises). The (transmission) entity has to be the owner of the transmission utilities in respect of which the servitude is established. In short, according to the currently dominant opinion, transmission utilities belong to the entity that bore the cost of their construction (see also Article 49 of the Civil Code, which, however, does not decide the question of ownership of such utilities).
The legislator’s decisionto introduce a new property right was preceded by discussion among civil law specialists (which lasted almost a decade) and numerous statements by Polish courts on the issue of the use of real property for the needs of transmission utilities. This discussion focused on three main areas. First, it concerned the possibility to give transmission entities a claim for the establishment and exploitation of a transmission utility servitude. In this respect, the applicability of provisions on necessary road servitude by analogy was considered. Second, the discussions covered the admissibility and conditions for the usucaption of (transmission) servitudes. And thirdly, the legitimacy and necessity to specify the dominant real property was at stake with regard to the above two situations, namely the usucaption of transmission servitudes and their establishment by agreement or in effect of pursuance (per analogiam) of a claim for the establishment of a necessary road servitude.
The new regulationdoes not solve these three major problems entirely. This results from the fact that most important conflict factor of major significance to both parties is the so-called legacy of the past. This pertains to thousands of kilometres of various transmission infrastructure erected under the “ancien régime,” i.e. before 1 February 1989.Prior to that date, the uniform character of state property was considered a binding legal principle. Investments in widely understood transmission utilities (various forms of energy, fluids, fuels, signals, etc.) were generally not preceded by the fair acquisition of adequate interest in respective properties. Even where such interest was actually acquired, it was achieved merely through lending for use or some other similar basis arising out of “permission” to the location of utilities. The State Treasury (transmission entities purchased all rights from State Treasury) also embarked on public law procedures allowing it to interfere in the right of ownership under decisions ordering so-called “minor expropriations”. It has remained unsolved whether such a decision would grant a legal interest in immovable property to the utility operator (the State Treasury), which would allow this operator to use it for transmission purposes, or whether it should be treated as mere authorisation to enter the property in order to perform certain works.
Transmission entities are not interested in clarifying the “legacy of the past” (thus acquiring legal interests in old infrastructure). Property owners have filed numerous cases hoping to win hundreds of thousands of zloty as remuneration and compensation. The new enactment does not refer to the issue of the usucaption of transmission servitudes, and does not solve various problems apparent in the perspective of intertemporal law, hence it can be concluded that it forms only a partial solution to the “utilities” problems.
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