Gloss to the Supreme Administrative Court of Poland judgment of April 21, 2016 – case file no. II GSK 2566/14

The gloss is an analysis and evaluation of the judgement of the Supreme Administrative Court of 21 April 2016, case file no. II GSK 2566/14. In this judgement, the Supreme Administrative Court of Poland adopted a view that distance sales of alcoholic beverages, including those made via the Internet, are illegal under the current provisions of the Act on Upbringing in Sobriety and Counteracting Alcoholism. In its interpretation of the law, the Supreme Administrative Court of Poland also referred extensively to the regulations of the Polish Civil Code on the sale agreement and the transfer of ownership of the sold item. The author critically evaluates the standpoint adopted by the Supreme Administrative Court of Poland. In author’s opinion, the interpretation of the law presented in the reasons for the judgement is law-generating in nature, leading to the creation of a legal norm which is not supported by the provisions of the Act. In author’s opinion, the Supreme Administrative Court of Poland wrongly equated the notions of a sale and the occurrence of the dispositive effect of a sale agreement, wrongly assuming that they occur at the same time and in the same place, which results in the assumption that the sale of an alcoholic beverage is effective upon the delivery of its object to the buyer at the place where the beverage is to be delivered. The position taken by the Supreme Administrative Court of Poland limits the constitutionally guaranteed freedom of business activity in a manner not supported by the Act.

The gloss is an analysis and evaluation of the judgement of the Supreme Administrative Court of 21 April 2016, case file no. II GSK 2566/14. In this judgement, the Supreme Administrative Court of Poland adopted a view that distance sales of alcoholic beverages, including those made via the Internet, are illegal under the current provisions of the Act on Upbringing in Sobriety and Counteracting Alcoholism. In its interpretation of the law, the Supreme Administrative Court of Poland also referred extensively to the regulations of the Polish Civil Code on the sale agreement and the transfer of ownership of the sold item. The author critically evaluates the standpoint adopted by the Supreme Administrative Court of Poland. In author’s opinion, the interpretation of the law presented in the reasons for the judgement is law-generating in nature, leading to the creation of a legal norm which is not supported by the provisions of the Act. In author’s opinion, the Supreme Administrative Court of Poland wrongly equated the notions of a sale and the occurrence of the dispositive effect of a sale agreement, wrongly assuming that they occur at the same time and in the same place, which results in the assumption that the sale of an alcoholic beverage is effective upon the delivery of its object to the buyer at the place where the beverage is to be delivered. The position taken by the Supreme Administrative Court of Poland limits the constitutionally guaranteed freedom of business activity in a manner not supported by the Act.