- Membership in water companies should be completely voluntary – believes the Commissioner for Human Rights – Any restrictions in this respect lead to a violation of the constitutional principle of every citizen's freedom to associate.
- Another problem is the inconsistency of the statutes of these companies with applicable law, the solution of which could be to extend the supervisory powers of starostas to interfere in their content.
- These companies should also be able to benefit from free administration support, e.g. in the form of material, training or organizational support.
- The Ministry of Infrastructure replied to the Commissioner for Human Rights that it was working on identifying barriers limiting the efficient functioning of water companies, as well as the supervision and control of starostas over their activities.
On April 29, 2024, the deputy Commissioner for Human Rights, Stanisław Trociuk, wrote to the Minister of Infrastructure, Dariusz Klimczak, on this matter. The basis was citizens' applications and information from the Supreme Audit Office on the results of the inspection entitled "Implementation of tasks financed from public funds by water companies". Water companies are a specific form of cooperation between land owners and users with public authorities in the field of conducting and regulating water management.
Insufficient supervision of starostas
ZRPO pointed out that the problems in the functioning of water companies result, to a large extent, from the lack or incorrect supervision by starostas. The Supreme Audit Office's report confirmed that the ineffectiveness of starosts' supervision over water companies was the result of the lack of appropriate legal instruments to influence the supervised entities in terms of adapting the provisions of their statutes to the law.
Given the current structure of land ownership and the varying degrees of interest of their owners in maintaining water drainage, it seems beneficial for the entire community to have it managed by one specialized entity that knows the local conditions, e.g. a water company. Therefore, these companies can be considered as a kind of counterweight to the belief that there is no co-responsibility for the area outside the land, which is typical of modern times and results largely from the sense of ownership of the land.
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The mere existence of drainage devices does not guarantee proper irrigation and drainage, as it is necessary to keep them in proper condition, taking into account the need to coordinate the dates and works. Unfortunately, if they are the responsibility of individual land owners, this is a difficult task, as water companies write to the Commissioner for Human Rights. From this point of view, companies can be an effective tool for solving water management problems not only on a local or regional scale, but also on a national scale.
Supervision over the water company in terms of its creation, operation and liquidation is exercised by the starosta. It has a specific scope of competences, the purpose of which is to ensure compliance with the regulations and provisions of the statute. However, information from the Commissioner for Human Rights shows that the supervision of starostas may be insufficient.
Resignation without conditions
Citizens' requests concerned ensuring voluntary membership in the company, which is not always respected. The Ombudsman pointed to cases of preventing or hindering – through statutory provisions – a member's free withdrawal from the company (e.g. by making resignation dependent on the company's consent). This is contrary to Art. 441 section 1 of the Water Law, which provides for the principle of voluntary membership in the company.
The starosta has the ability to exert authoritative influence on the activities of water companies by: approving or refusing to approve the company's statute or amending it; declaring the resolution of the general meeting invalid; dismissal of the company's management board or even its dissolution.
However, the Supreme Audit Office's report shows that the examined company statutes, in extreme cases, had not been updated for over 50 years, contained illegal provisions, and more than half of them contained provisions that made it difficult for company members to resign from membership, which was contrary to the statutory principle of voluntariness.
Therefore, the Commissioner for Human Rights sees the need to consider appropriate legislative changes that would guarantee the possibility of resigning from membership in a water company at any time, without additional conditions.
Voluntary membership
In the light of Art. 58 of the Constitution of the Republic of Poland, the only reasonable position is to recognize the complete voluntary nature of membership in water companies and to assume that any restrictions in this respect lead to a violation of the constitutional principle of every citizen's freedom to associate. This voluntariness is emphasized by the established jurisprudence of the Supreme Court.
Meanwhile, complaints to the Commissioner for Human Rights show that this "voluntariness" is questioned by water companies. Often, after the Office of the Commissioner for Human Rights has examined a specific case of refusal to remove a member from a water company, it is noticeable that the statutes of water companies have not been adapted to the solutions adopted in the Law. It happens that a person submitting a declaration of withdrawal from the company has to wait for up to several months to do so, and until he or she is removed from the company's membership, membership fees must be paid . This leads to a violation of constitutional rights and freedoms. to enable starostas to effectively influence companies to conduct their business in accordance with the regulations.
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The buyer of the property does not know that he is a member of the water company
Another problem is that the legal successor of a company member assumes his rights and obligations. Therefore, each purchaser of real estate, the owner of which was a member of the company, or each heir, by operation of law, become entities obliged to bear the burdens of their predecessor and use the rights of a member. The lack of up-to-date information on the owners of plots of land covered by the companies' activities makes it difficult, and often even impossible, for the general meeting to adopt a resolution on, for example, amending the company's statute. This results not only in problems related to determining the required number of participants in the general meeting to maintain a quorum when adopting resolutions, but also in calculating and collecting membership fees.
Real estate buyers often do not even know that they have become legal successors of a member of a water company and are not aware of their obligations. This argues in favor of imposing an obligation on water companies to inform such persons about obtaining membership.
An obstacle to maintaining drainage facilities in proper condition is the formal functioning of water companies that do not perform their statutory tasks, sometimes even for several dozen years. This results in the impossibility of enforcing the performance of obligations in this respect from land owners. The Ombudsman shares the NIK's request to take legislative action to expand the list of reasons enabling the dissolution of a water company by the supervisory authority in the event of its permanent cessation of operations.
In the opinion of the Commissioner for Human Rights, water companies should be able to benefit from free support from the administration, at least in formal and organizational matters. They should also receive appropriate support from administrative bodies. It seems that the statutory solution that the aid is actually limited only to subsidies is not appropriate. It seems reasonable to also provide assistance in other forms, e.g. material, training or organizational.
For all these reasons, there is a need to take a legislative initiative that will provide effective solutions enabling the proper implementation of tasks by water companies. The demands include:
- guaranteeing the right to resign from membership in a water company at any time, without having to meet any additional conditions;
- extending the scope of supervisory competences of the starosta by equipping the body with the right to authoritatively interfere with the content of statutes if their content is inconsistent with applicable law;
- expanding the list of reasons for dissolving a water company by the staroste if it has permanently ceased operations, e.g. by statutory definition of the period of inactivity of the water company.
Response of the Ministry of Infrastructure
The ZRPO asked MI for an analysis of the above comments and a position. The answer was provided by Przemysław Koperski, Undersecretary of State at the Ministry of Interior.
– (…) Referring to the postulated need for legislative changes, which would guarantee the possibility of resigning from membership in a water company at any time, without the need to meet any additional conditions, I would like to inform you that until the date of receipt of the letter from the Ombudsman, the Ministry of Infrastructure had not registered comments mentioned above scope – writes Deputy Minister Koperski.
And he further notes:
– It should be noted that each member of a water company has the right to withdraw from the water company, in accordance with the provisions of its statute, which, in accordance with the Water Law, should specify the manner of leaving the water company. In such a situation, leaving the water company does not mean that there is no obligation to pay benefits to the water company. The applicable Water Law clearly indicates that the statute of a water company approved by the staroste local to the company's registered office determines the conditions for accepting new members of the water company, excluding members from the water company, terminating membership in the water company and resigning from membership in this company. Moreover, in accordance with Art. 462 section 10 anyone whose legal interest or entitlement has been infringed by a resolution of the water company's governing body adopted in the scope of the activities referred to in Art. 441 section 1 and 3, may – after unsuccessfully calling on the water company to remove the violation – appeal against the resolution to the administrative court, unless it has already ruled on the matter pursuant to section 8 the administrative court dismissed the complaint.
Taking the above into account , the Ministry of Infrastructure has not identified the need to change the applicable legal regulations regarding resignation from membership in a water company to date.
Regarding the comment regarding the starosta's supervision and control over the activities of the water company, I would like to inform you that in accordance with Art. 462 section 1 of the Water Law, it is implemented by the local starosta and is of a formal nature. It is not related to the location of the water facilities owned by the water company, but to the location of its registered office, which results expressis verbis from Art. 446 section 3 Water Law. This supervision begins when the water company commences its operations and ends when it ceases to operate as a legal entity.
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The fact that the staroste is bound by law, which is a consequence of the constitutional principle of legality and the rule of law, allows the staroste to apply only measures expressly provided for by law. The phrase "exercises supervision" does not indicate the scope of specific activities of the starosta. The basic control measure implemented as part of the supervision of a water company is the obligation to submit resolutions of the company's bodies to the starosta . When controlling them, the starost uses supervisory measures to ensure compliance with the law of the activities of the supervised entity. The scope of the obligation to submit resolutions to the supervisory authority covers all resolutions of the company's governing bodies, including resolutions of the general meeting of company members and resolutions of the audit committee.
The starost only controls resolutions regarding the company's activities, and if they are found to be inconsistent with the law or the statute, he decides on their invalidity. It should be noted that in the light of the current interpretation , resolutions that refer to internal relations between a water company and its member are not subject to the starosta's control , as they go beyond the concept of activity referred to in Art. 462 section 1 of the Water Law.
Additionally, it should be noted that in accordance with Art. 462 section 2 of the Water Law, the management board of a water company is obliged to submit the company's resolutions to the staroste within 7 days from the date of their adoption. Failure by the management board to fulfill this obligation may constitute a condition for the starosta to apply a supervisory measure in the form of dissolution of the management board, pursuant to Art. 463 section 1 of the Water Law.
When analyzing the supervisory measures at the starosta's disposal resulting from the provisions of the Water Law , it should be noted that he may interfere in the activities of water companies by declaring the resolution of the company's bodies invalid, suspending the implementation of the resolution, dismissing the company's management board and appointing a receivership. The legislator clearly indicates that one of the most important competences of the starosta is to examine the company's resolutions in terms of their compliance with the law and the company's statute, and, consequently, the legal existence of the resolutions of the company's bodies.
The above-mentioned powers of the starosta to interfere authoritatively in the sphere of activity of a water company have been expressis verbis assigned to the institution of supervision over the company's activities by regulating them in Chapter 3 of the Water Law entitled "supervision and control over the company's activities".
However, these are not all the powers that the starosta has in relation to the water company. In fact, another legal instrument is essentially a supervisory measure over the activities of a water company, i.e. dissolution of the company by way of an administrative decision.
The provisions of the Water Law provide for a specific procedure for dissolving a water company, the goals and tasks of which are specifically defined in Art. 441 section 2, in particular in section 3. Pursuant to Art. 464 above According to the Act , a water company may be dissolved by a resolution of the general meeting or a decision of an authorized body, i.e. the starosta. However, the occurrence of any of the indicated events does not automatically terminate the legal existence of the water company , but leads to the opening of liquidation proceedings.
With regard to the dissolution of a water company in accordance with Art. 464 section 1 of the Water Law, by virtue of the resolution of the general meeting, the legislator did not provide for the need for statutorily specified reasons. This means that their determination is left to the discretion of the general meeting. The competences of this body are defined in Art. 457 of the Act in question, and are implemented through the power to adopt resolutions. It is worth mentioning that the competences of the general meeting include supervision of the company in the scope of its activities. It follows that, on the basis of a resolution of the general meeting, the company's statute can specify the circumstances whose occurrence will result in its dissolution.
(…) Finally, I would like to inform you that work is currently underway at the Ministry of Infrastructure to identify barriers limiting the efficient functioning of water companies, as well as supervision and control over their activities currently exercised by starostas. Acting to ensure better adaptation of water management to climate change and the need to implement European Union regulations, as well as new challenges (e.g. effective counteracting the effects of drought, the need for protection against floods), the Ministry of Infrastructure is currently analyzing all needs and comments submitted to the Law – Law water.
Bearing in mind the intention to ensure the efficient operation of water companies and the need to constantly improve existing regulations, including in the scope of Art. 447 relating to the legal successor of a member of a water company and Art. 454, i.e. benefits to the company. The Ministry of Infrastructure plans to implement this intention in close cooperation with units subordinated to and supervised by the minister responsible for water management, but primarily with other ministries. Particular attention will be paid to developing regulations that will be the result of discussions and involvement of all stakeholders.
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