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Niniejszy artykuł stanowi próbę przybliżenia statusu prawnego Funduszu Przeciwdziałania COVID-19 utworzonego dla finansowania szerokiej gamy zadań związanych przeciwdziałaniem pandemii. Analiza ma odniesienie do zasad obowiązujących w prawie finansów publicznych. Przedstawiona w artykule problematyka wskazuje na pierwotną koncepcję Funduszu jako państwowego funduszu celowego z zaznaczeniem uwarunkowań prawnych jego funkcjonowania, a także aktualną konstrukcję Funduszu jako formuły niezaliczającej się do sektora finansów publicznych. Dokonane zmiany w służące głównie uelastycznieniu wydatkowania środków na walkę z COVID-19 budzą pewne wątpliwości natury prawnofinasnowej., This article attempts to provide an overview of the legal status of the COVID-19 Counteracting Fund set up to finance a wide range of counter-pandemic tasks. The analysis shall refer to the principles of public finance law. The problems presented in the article demonstrate the original conception of the Fund as a state special-purpose fund with the emphasis on the legal conditions of its functioning, as well as the current construction of the Fund as a formula excluded from the public finance sector. The changes made, mainly to make expenditure on COVID-19 more flexible, raise some legal and financial doubts.

Praca recenzowana / peer-reviewed paper

The following paper supplements the article “The legal status of earmarked funds” published in “Ruch Prawniczy, Ekonomiczny i Socjologiczny” 2004, 4, pp. 5-25. Changes in the legal regulations governing earmarked funds, introduced in 2004-2005, influenced their legal status. Thus there is a necessity to complete the previously published study. Firstly, the notion of “earmarked fund” has been altered and opportunities to create new earmarked fund has been offered. The legal consequences of that are serious since they affect the legal character o f an earmarked fund. The next change is an effect of the previous one and it refers to the addition to the earmarked fund’s catalogue 15 new funds. The author discusses the sense of this extention in the perspective of postulates to order the public finance sphere. Under the new laws, the income and revenues of the funds are more specifically regulated. The new regulations also provide for more flexible management of funds, which may now be used for other purposes than originally intended and included in the financial plan. Those modifications, which are related to the legal status o f earmarked funds, are o f specified nature and in this context they should be recognized as positive. However, the author draws the reader’s attention to a possibility of using these financial instruments for political aims and not only for the sake of better management.

Earmarked funds are mentioned in the Polish Public Finances Act as one of the five organisational legal forms of budget management. This article deals with their legal status. Establishing the legal status of earmarked funds requires a comparative analysis based on administrative and tax law. As an introduction the author discussed the notion of a fund both in colloquial and legal language. Next she analysed the dogmatic and legal definition of this notion on the basis of regulations in force and the doctrine of financial law, pointing to inaccuracies in legal regulations. As a result there are considerable interpretative difficulties e.g. in establishing a catalogue of earmarked funds. From the financial and legal point of view it was necessary to consider the legal nature c f revenue and expenditure and the nature of financial plan of earmarked funds. The relation between plans of earmarked funds and budgetary acts and resolutions was also emphasised. The issues of the legal from of earmarked funds and the nature of property administered by the funds required a civil legal analysis. The analysis of administrative legal status of earmarked funds is based on the organisational and territorial structures of particular funds, the nature and competence of fund agencies. It seems that the essence of funds was not taken into consideration properly in the Polish tax law. Earmarked funds functioning on the basis of regulations in the Public Finances Act enjoy exemption from tax. Still, the way the issue is settled is debatable. Legal forms on which earmarked funds are based are non-uniform and casuistic. For that reason establishing a catalogue of universal legal properties of earmarked funds is problematic.