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7HEALTH RESORT COMMUNES - SELECTED LEGAL ASPECTS КУРОРТЫ КОММУН - ОТДЕЛЬНЫЕ ПРАВОВЫЕ АСПЕКТЫ
Okulicz-Kozaryn Walery, Doctor of Educational Sciences, МВА, professor Окулич-Казарин Валерий, доктор педагогических наук, МВА, профессор
Taganrog Institute named after A.P. Chekhov (branch) of Rostov state economic University, Russia Stych Marek, Candidate of law, director Стых Марек, кандидат юридических наук, директор
Institute of administration, Academy J. Dlugosz in Czestochowa, Poland
The article discusses issues concerning the acquisition of health resort status by communes along with their strong and weak points. The article contains an analysis of binding legal regulations and indicates the strong and weak points of health resorts. It will also be important to take a closer look at the procedure of acquiring health resort status. It is shown, the establishment of these institutions is a management tool of activity of seniors in the commune's social life.
Keywords: health resort, communes, legal status
Introduction
It is important to the communes that are already health resort communes and to the ones that are currently attempting to acquire the aforementioned status. The status enables a commune to confirm its existing medicinal properties such as natural resources and climate. The acquisition of the status entails certain restrictions on running business, which is not normally present in ordinary communes. The main benefits of the health resort status include attracting a bigger number of tourists and charging so-called resort fee. On the other hand, commune authorities have additional duties. In particular, they have to care about the communes' unique values in order not to lose them, and plan investments connected with spa infrastructure. A commune which possesses spa values obtains a certificate confirming the medicinal properties of its natural resources and climate.
Methods
While the exact methodologies used vary from field to field, the overall process of study is the same. Our key research technique was to analyze many scientific sources. We used well-documented and powerful methods of analysis. All of our methods were economically justified.
Firstly, we define of the question - what exactly we were trying to find out. We used the scientific method to search for conditions of the acquisition of health resort status by communes along with their strong and weak points.
Secondly, we studied from 80 to 90 scientific sources on that interesting topic. After that we choose the most importent ones for a detailed analysis. We welcomed alternative and non-traditional positions.
The next stage of the method is the design of an experiment. Usually a primary run of the experiment is conducted, and any changes to the
experimental conditions are made. Experiments are designed so that one or two variables are changed. Then the effects of the change are observed. In our experimental run data collection of survey takes place, followed by data analysis. Quantitative analysis was not applied within the considered period.
Finally the data is interpreted and from this, we are able to draw conclusions.
Review of sources of legal information
The starting point of the analysis should be the Act on Commune Self-government of 8 March 19901. Article 38 of that act deserves a particular attention as it allows health resort communes to be systemically distinct from ordinary ones2. The systemic distinction made by the Act led to further regulation in the Act of 28 July 2005 on spa treatment, health resorts and health resort protection areas, and health resort communes3. Pursuant to Article 2 Paragraphs 2 and 3 of the Act a health resort commune is a commune the area or a part of area of which has been given the health resort status in compliance with the procedure stipulated by the Act. It means that a health resort can be established within the borders of (Article 33 Paragraph 1 of the Act on spa treatment):
- a commune - the basic unit of the territorial division,
- a village or other unnamed auxiliary unit of the commune created on the basis of auxiliary territorial division
Regardless of where exactly a health resort is established, the Act stipulates specific requirements concerning its area:
- there have to be natural medicinal resources and special climatic values,
- the resources and the climate have to be protected,
- they both have to find application in spa treatment.
Another relevant regulation provided in Article 46 of the aforementioned Act stipulates the tasks to be performed by health resort communes. The uniqueness of those tasks stems from the special nature of health resorts. They include:
- land management focused on spa treatment needs,
- protection of natural resources of the health resort or the health resort protection area, which involves special requirements as regards air pollution standards, sound intensity level, sewage disposal to waters or ground, waste management, and electromagnetic field emissions,
- creating conditions conducive to the functioning of spa treatment units and devices, and to the development of communal infrastructure designed to satisfy the needs of health resort visitors.
As it can be seen, health resort communes are obliged to perform tasks designed to sustain their medicinal functions. Nevertheless, they still have to per-
1t.j. Dz. U. z 2013 r., poz. 594
2 J. Zurakowski, Problemy prawne funkcjonowania uzdrowisk, Panstwo i Prawo 1969 nr 6 s. 1036-1047 3t.j. Dz. U. z 2012 r., poz. 651;
A. Bierc, Projekt ustawy o uzdrowiskach, obszarach ochrony uzdrowiskowej i lecznictwie uzdrowiskowym. Opinia Rady Legislacyjnej, Przegl^d Legislacyjny 2003 nr 1 s. 169-172
form tasks imposed on them by the provisions of Article 7 of the Act on Commune Self-government.
At this point, one cannot ignore provisions of other acts which stipulate restrictions and exceptions with the aim of protecting the medicinal properties of health resort areas4. They include:
1. obligation to enclose a description of the area within range of fiftyfold height of the highest point at which gases and dust get into air if a commune applies for permission to emit gases or dust into air - Article 221 Paragraph 1 Subparagraph 3 of the Environmental Protection Act of 27 April 20015
2. exclusion of the term spa baths from the general definition of bathing area as stipulated in Article 9 Paragraph 5 a of the Water Law Act of 18 July 20016
3. obligation to respect prohibitions and restrictions imposed by the provisions of the Act on health resort communes if there is an issue of locating a mining waste neutralisation unit - Article 25 Paragraph 5 of the Act of 10 July 2008 on mining waste7
4. rendering services in compliance with the act on health resort communes instead of Article 3 Paragraph 29 of the Act of 4 March 2010 on rendering services in Poland8
5. right to charge a resort fee - Article 17 Paragraph 1a of the Act of 12 January 1991 on taxes and local charges9
6. exclusion of the application of Articles 33-39 of the food and nutrition safety Act of 25 August 200610 - as regards curative waters used by spa treatment units for medical purposes stipulated by the Act on health resort communes, and bottled water marketed in compliance with the regulations of the Pharmaceutical Law Act of 6 September 200111
7. prohibition to use crop protection chemicals which have been classified as harmful to human health - the regulation no. 1272/20'08 - near playgrounds, nurseries, kindergartens, primary schools, hospitals, protection zones "A" established in health resort areas or health resort protection areas - Article 36 Paragraph 1 of the Act of 8 March 2013 on crop protection chemicals12
8. special protection of forests in health resort protection zones and health resort protection areas - Article 15 Paragraph b) of the Forests Act of 28 September 199113
9. obligation to obtain an opinion from the Minister of Health as regards making decisions about railway investments located in health resort areas or health resort protection areas - Article 90 Paragraph 3 Subparagraph 4 Letter a)
4 P. Nastaj, Uzdrowisko jako obszar specjalny o charakterze ekologicznym, Rozprawy z Zakresu Nauk Prawnych
2012 nr 3 s. 149-160
5t.j. Dz. U. z 2013 r., poz. 1232
6t.j. Dz. U. z 2015 r. poz. 469
7t.j. Dz. U. z 2013 r., poz. 1136
8Dz. U. Nr 47, poz. 278
9t.j. Dz. U. z 2014 r., poz. 849
10t.j. Dz. U. z 2015 r., poz. 594
11t.j. Dz. U. z 2008 r., Nr 45, poz. 271
12t.j. Dz. U. z 2015 r., poz. 547
13t.j. Dz. U. z 2014 r., poz. 1153
of the Rail Transport Act of 28 March 200314
10. obligation to obtain an opinion from the Minister of Health as regards investments located in health resort areas or health resort protection areas if an application for investment implementation permit has been submitted - Article 6 Paragraph 1 Subparagraph 7 Letter a) of the Act of 8 July 2010 on specific principles of preparing anti-flood investments for implementation15
In essence, the above-mentioned regulations are to guarantee special protection of health resort values, and to ensure the safety of health resort visitors and tourists. One must bear in mind, however, that apart from the above restrictions and exceptions there is also secondary legislation (executive acts) which guarantees the quality of health resort values. That issue has been stipulated in:
- the Regulation of the Minister of Health of 10 March 2006 on detailed methods and procedures of conducting audit of spa treatment units16
- the Regulation of the Minister of Health of 13 April 2006 on the scope of examination necessary to determine curative properties of natural medicinal resources and curative properties of climate, evaluation criteria necessary for that examination, and form of the certificate confirming those properties17
- the Regulation of the Minister of Finance of 9 June 2006 on the procedure and time limits of determining and granting state subsidies to health resort
communes18
- the Regulation of the Minister of Health of 13 September 2006 on the procedure of conducting audit of the units authorised to certify curative properties of natural medicinal resources and climate19
- the Regulation of the Minister of Health of 9 June 2011 amending the Regulation on the procedure of conducting audit of the units authorised to certify curative properties of natural medicinal resources and climate20
- the Regulation of the Minister of Health of 29 July 2011 on the health resort Chief Medical Officer21
- the Regulation of the Minister of Health of 2 April 2012 on determining requirements that should be met by spa treatment units and devices*.
Results: Status of the health resort commune
A commune applying for the status should (Article 34 Paragraph 1):
- have deposits of natural curative resources with certified curative properties,
- have specific climatic conditions of curative nature certified as stipulated in the Act,
14t.j. Dz. U. z 2013 r., poz. 1594
15Dz. U. Nr 143, poz. 963
16Dz. U. z 2006 r., Nr 47, poz. 346
17Dz. U. z 2006 r., Nr 80, poz. 565
18Dz. U. z 2006 r., Nr 178, poz. 1321
19Dz. U. z 2011 r., Nr 130, poz. 761
20Dz. U. z 2011 r., Nr 161, poz. 976
21Dz. U. z 2012 r., poz. 452
- have spa treatment units and spa devices ready to treat patients,
- meet environmental quality standards stipulated by the Environmental Protection Act,
- have infrastructure necessary for water and sewage management, electrical infrastructure, public transport infrastructure, and it should operate a waste management system.
A commune applying for the health resort status is obliged to have its resources and climate's curative properties certified. The criteria have been stipulated in the regulation of the Minister of Health on the scope of examination necessary to determine curative properties of natural medicinal resources and curative properties of climate, evaluation criteria necessary for that examination, and form of the certificate confirming those properties. It can be illustrated, for example, by Annex no. 322 to the aforementioned regulation which enumerates the elements of climate:
- temperature of air,
- insolation,
- cloudiness,
- relative humidity,
- atmospheric phenomena: fogs, storms, foehn and halny winds, layer of snow, black ice.
The aforementioned certificates are issued by the units authorised by the Minister of Health.
Results: Steps in establishing a health resort
In order to establish a health resort, commune bodies have to undertake certain actions. First of all, it is essential to conducts a spa valuation survey. The survey is designed to determine the possibility of operating spa treatment on a given area. It consists of two parts, descriptive and graphic (Article 39 Paragraph 2). The survey is an act, which means it has to be signed by an executive organ: the commune head (wójt) or the mayor (burmistrz or prezydent miasta). The question that arises at this point is what exactly a spa evaluation survey is? It contains a description of an area intended for health resort or health resort protection area, with particular focus put on its natural curative resources and climate. Pursuant to Article 39 Paragraph 4 of the Act on spa treatment, the descriptive part of the survey has to contain the following important information:
- commune's name;
- demarcation of the area intended for health resort or health resort protection area;
- description of the spatial management plan including the size and the borders of health resort protection zones, location details and condition of technical and communication infrastructure, construction works concerning that infra-
22„Zakres badan niezb^dnych do ustalenia wlasciwosci leczniczych klimatu, w tym oceny stanu sanitarnego powietrza"
structure, and areas intended in the plan or in a study of land use conditions and directions for spa treatment, recreational and holiday activity, and business activity;
- description of planned health resort protection zones, including green and biologically active areas to be preserved;
- description of the curative properties of the natural resources and climate present in the area;
- certificates confirming the above;
- list of spa treatment units and devices that are planned or are already functioning;
- description of the mining areas, including their limits or planned location, and the names of the prevailing and the secondary minerals, as stipulated in geological and mining regulations;
- information about water supplies, water and sewage management, sewage treatment plants, and waste management (possible ecological hazards);
- information about cleanliness of air and sound intensity level, prepared pursuant to separate provisions;
- health resort profile determining the types of treatment planned to be operated in the health resort as well as possible contraindications to do so (Article 13 Paragraph The following types of treatment have been stipulated:
1) traumatic and orthopaedic disorders
2) nervous system diseases
3) rheumatic diseases
4) hypertension and cardiological diseases
5) peripheral artery diseases
6) upper respiratory tract diseases
7) lower respiratory tract diseases
8) digestive system diseases
9) diabetes
10) obesity
11) endocrine diseases
12) osteoporosis
13) skin diseases
14) female diseases
15) urinary tract and kidney diseases
16) hematopoietic and blood diseases
17) eye diseases).
The survey ends with the date of preparation and the signature of the commune's head (or mayor).
When it comes to the graphic part of the survey, it contains the maps of the future health resort or health resort protection area. It is also important to contain information about required and already existing protection zones, and graphic presentation of the information stipulated in Article 39 Paragraph 4 Subparagraphs 3, 4, 7, 9 i 10 (some of the descriptive elements of the survey).
In the next stage, the commune submits the survey to the Minister of Health for approval. If it meets formal conditions, the Minister issues a decision confirming that fact and authorising the commune to operate spa treatment in a given area. If there are any formal defects, the Minister requests to complete the documentation. It produces certain legal effects for if the commune fails to complete the information within 3 months of receiving the notification, the Minister can issue a negative decision.
If the Minister has confirmed the possibility of operating spa treatment on a given area, then the Council of Ministers issues a regulation on granting a given area the health resort or health resort protection area status.
At the final stage of the process, the Commune (City) Council issues an ordinance within 30 days of the effective date of the afore-mentioned regulation. By way of that ordinance and in compliance with the survey, the Council decides about the statute of the health resort or health resort protection area.
Bearing in mind the health safety of health resort visitors, the Commune (City) Council has to submit a survey to the Minister of Environment at least once every ten years in order to confirm that a given area still fulfils the statutory requirements.
Health resort communes and the communes located in health resort protection areas are entitled to use the following words as parts of their names: zdrój, cieplice, uzdrowisko termalne (thermal spa).
Discussion: Strong and weak points of health resorts
A survey conducted in the health resort communes located in Podkarpackie Voivodeship, that is Horyniec Zdrój, Iwonicz Zdrój, Polanczyk, Rymanów Zdrój (2015) revealed the strong and weak points of those health resorts. According to the data gathered in the survey, the strong points include:
- environmental and natural resources, e.g. curative waters, topography, bio-climatic conditions, landscape parks,
- unique cultural potential,
- diverse tourist resources - catering and accommodation infrastructure, tourist trails,
- developed communal infrastructure, e.g. shops, post offices, banks,
- positive attitude of the local communities towards health resort visitors and tourists,
- safety,
- high standard medical services,
- diversity of treatment profiles.
When it comes to the weak points, they include:
- unsatisfactory standard of tourist infrastructure,
- low quality of tourist services,
- low level of innovativeness or no innovativeness as regards treatment and tourism,
- poor marketing,
- limited financial possibilities,
- communication problems as regards rail and bus connections.
Closing remarks
The legal fact of obtaining the health resort status by a commune is a stimulus to undertake some marketing action. The commune's name itself conveys important information. It indicates that it is a health resort, where one can find:
- medicinal resources, for instance curative waters and minerals (peloid),
- clean air,
- spa infrastructure, e.g. parks, graduation towers, promenades,
- high standard healthcare.
However, the health resort status does not protect a given area against dangers resulting from legal and economic factors such as e.g.:
- frequent lack of clearly determined tourist policy,
- slow liquidation of environmental pollution,
- insufficient funds for effective promotional policy.
Generally speaking, the establishment of these institutions is a management tool of activity of seniors in the commune's social life.
A COMMENTARY TO THE REGULATION OF ARTICLE 5C OF THE COMMUNE SELF-GOVERNMENT ACT ON THE ESTABLISHMENT OF THE COMMUNE BOARD OF SENIORS
КОММЕНТАРИЙ К ПРАВИЛАМ СТАТЬИ 5С КОММУНЫ САМОУПРАВЛЕНИЯ АКТА ОБ УСТАНОВЛЕНИИ КОММУНЫ
СОВЕТА ПОЖИЛЫХ ЛЮДЕЙ
Stych Marek, PhD, director Стых Марек, кандидат юридических наук, директор
Institute of Administration, Jan Dlugosz University in Czestochowa, Poland
Abstract
The commentary proves that communes implement broadly defined social policy at local level. It is shown the establishment of social institutions manifests the participation of seniors in the commune's social life. Keywords: self-government, communes, board of seniors
Article 5 c has been given an analysis:
- Par. 2 "Commune Council, on its own initiative or upon the request of interested parties, may establish the commune board of seniors"
- Pr. 3 "Commune board of seniors performs a consultative, advisory, and initiative function"
The aim of the legal interpretation of the above regulations is to determine the
