The privatization of public tasks and ownership transformation in Poland - the outline of the issue

• Author: Katarzyna Solecka
• Position: Faculty of Law, University of Bialystok, Poland
• Pages: 152-167

The privatization of public tasks and ownership transformation

in Poland – the outline of the issue

PhD Student Katarzyna SOLECKA

1

Abstract

The following paper focuses on the discussion on the two issues – the pr ivatization

as the transfer of ownership rights to the public wealth onto a private entity and the

privatization of public tasks a s the manifestation of the deviation of public la w entities to

perform tasks for the benefit of private entities. The two institutions cause a lo t of interest.

The two concepts are very often used as synonyms thus interfering with the proper

perception of the changes car ried out in the economy. The reasons for this state of a ffairs

may b e sought in at least two aspects, firstly, the a ll the action performed by the sta te

regarding the “public” property are in the area of common interest. The more the

disposition of the proper ty – the forfeiting of the ownership right for the benefit of a pr ivate

entity – tends to be “on the carpet”. Furthermore, the emotions are aroused when it comes

to the public and private collabor ation due to the fear of the a llegation of cor ruption. On

the other hand, the una waren ess and improper u nderstanding of the meaning of both

concepts leads to the erroneo us percep tion of the institutions which play a significant

however different roles of each in the sta te. It should be emphasized that between the

concepts of „privatization as the ownership transformation” and „privatization of public

tasks” may not be pu t an equals sign. The political, economic and social changes ta king

place cause adeq uate changes to the public administration. Thus the roles a nd duties a re

also changed which manifests in e.g. ena bling the enga gement of the public sector in the

coopera tion with a private partner (a s in private and public pa rtnership for exa mple). The

aim of the pa per is to indicate the elements defining the objective institutions, factors

allowing to distinguish the regula tions and pr imarily allowing to answer the question why

the two concepts may not be tr eated as iden tical. To explain the aforementioned I sha ll use

a few methods – firstly to explain the concept of “privatization”, “privatization of public

tasks” I shall use the historical method. Then to indicate the possibility of the performance

of the public tasks in the EU law I shall use the compar ative method. The following method

used to discuss the objective issue is the analytical method – the aim of the two r egulation

will be analyzed in or der to clar ify the inability to consider the privatization pr ocess as the

model for public and private colla boration.

Keywords: privatization, public ta sks, public-private pa rtnership, public

administratio n.

JEL Classification: K23

Introduction

The paper is devoted to the discussion on the two issues – the privatization

understood as the transfer of rights to the public property to a private entity and the

privatization of public tasks – understood as the manifestations of public entities

refraining from performing a task for the benefit of private entities.

1 Katarzyna Solecka - Faculty of Law, University of Bialystok, Poland, kmsolecka@gmail.com

Juridical Tribune Volume 3, Issue 2, December 2013

153

These two institutions cause a huge interest and are discussed. Over many

decades Poland existed in the economic “stagnation” caused by the state

intervention in the areas of its existence. It was the state which owned everything:

land, enterprises or hospitals. Private ownership and private business initiative

were marginalized (the worker or a farmer provenience assured a ”privileged”

position to attain education and professional promotion). The 70s of the 20th

century were full of financial crises which showed the lack of unlimited resources

of administration to realize public tasks. The following decade confirmed the trend

– troubles of the public finances and thus the inability to realize the tasks assigned

to the state which forced the change of the perception of the role of public entities

as to the realization of public tasks. It was the beginning of the process of the

cooperation between the public and private sectors as this solution was perceived

as the development of the effectiveness of the administration or the growth of the

quality the provided services. The political, economic and social changes taking

place in Poland in the late 80s and 90s of the 20th century caused respective

transformation affected also the public administration. Thus the transformation

affected its roles and duties resulting in enabling the public sector to cooperate with

the private partner (e.g. as in the public and private partnership). At the same time

it is worth mentioning that there exist certain areas of the functioning of the state

which must not or are not recommended to be transferred to the competence of a

private owner. Due to the economic or safety reasons the owner of the areas should

remain a public entity (e.g. penitentiary services, schools) however the goal of

effective performance of tasks in these areas may be realized through assigning the

“realization” by private entities.

It is a common practice that the objective concepts are used as synonyms

and thus disturb the proper perception of the economic changes under way. The

reasons for such a state of the matter may be sought in at least two factors: firstly

all the actions of the state regarding the “public” property draw common attention.

The more, the disposal of the property – the disposal of the property ownership

rights to the benefit of a private entity tends to put the issue “on the carpet”.

Furthermore, the emotions are aroused when it comes to the involvement in the

public and private collaboration due to the allegation of corruption. On the other

hand, the unawareness and wrong understanding of both concepts leads to an

erroneous perception of the institutions which have to play a significant role in the

state however different for each one.

It should be reiterated that between the concepts of privatization as the

“ownership transformation” and “privatization of public tasks” there should be no

equals sigh. The aim of the paper is to present the elements defining the subjective

institutions, the factors allowing to distinguish between the regulations and

moreover to allow to answer the question why the concept may not be identified as

the same.