The concept of transmission easement was first introduced in Polish law in 2008. The experience of its application by the courts and in transmission easement agreements makes a strong case for changing the law that regulates this concept. This paper aims to present a number of critical weaknesses of the concept which adversely affect the social approval and economic usefulness of transmission easement and which can be considered in three ways. Firstly, a critical analysis is conducted of the non-exhaustive (generic) framework of the rights of utility network operators which lacks official guidelines and of the acceptability of differences in the terms of transmission easements in different parts of Poland. The lawmakers‘ approach raises constitutional questions regarding equality before the law, as well as business freedoms for and business restrictions affecting utility network operators. Secondly, the substance of transmission easement is compared with its administrative-law counterpart, namely a limitation on the use of land imposed by way of administrative decisions. This comparison shows systemically dysfunctional differences in the scope of the rights and obligations of the parties to transmission easement agreements, although these differences produce the same result: the creation of a right for the benefit of a utility network operator as an encumbrance over the land. Thirdly, the evolutionary nature of the approach of the courts to particular aspects of the process of developing the substance of the transmission easement concept, the fact that the parties involved in judicial proceedings that involve transmission easements become increasingly experienced and the emergence of new juridical questions all have a strong impact on the transformation of the rights of utility network operators over time. An additional factor in the courts‘ approach is transmission easement agreements, which are well drafted to reflect the freedom of contract and to implement it actively.
Full version available at: „Służebność przesyłu. Zagadnienia prywatnoprawne oraz publicznoprawne”, p. 133-148
