Black Paper. Implementation of EU Climate and in . ClientEarth Poland is part of the international legal organization with headquarters in London and offices in and Brussels. We engaged with both at the stage of its formation and execution. We are interested in analytical work and action in areas where people and nature need it.

Publisher: ClientEarth Poland Al. Ujazdowskie 39/4, 00-540 Warszawa

The law is stated as 14th September 2013 Edited by: Marcin Stoczkiewicz Printing and binding: Grafix Bis Zakład Poligraficzny Szymański S. © Copyright by ClientEarth Poland, Warsaw 2013 ISBN 978-83-938296-0-6 2 Black Paper. Implementation of EU Climate and Energy Law in Poland

3 Table of Contents

6 Introduction

7 Member States’ Duties to Comply with the Rule of EU Law

12 Directive on the greenhouse gas emissions allowance trading scheme Directive 2009/29/EC

20 Directive on the promotion of the use of energy from renewable sources Directive 2009/28/EC (Power)

32 Directive on the promotion of the use of energy from renewable sources (Transport) Directive 2009/28/EC

38 The CCS Directive Directive 2009/31/EC

44 Directive on Energy End-use Efficiency and Energy Services Directive 2006/32/EC

58 The Directive on the Ecodesign of Energy-Related Products Directive 2009/125/EC

64 Directive on Product Information about the of Energy Directive 2010/30/EC

72 Directive on the Energy Performance of Buildings Directive 2010/31/EU

78 The Fuel Quality Directive Directive 2009/30/EC

82 Directive on ambient air quality and cleaner air for Europe (CAFE) Directive 2008/50/EC

88 Directive on industrial emissions Directive 2010/75/EU

92 Directive on environmental impact assessment Directive 2011/92/EU

100 Note About the Autors

101 Summary

5 Introduction Maria Magdalena Kenig-Witkowska Marcin Stoczkiewicz

The Warsaw Conference of the Parties to the Framework The results presented in the report are even more alarm- Convention of the United Nations (UN) on ing in light of the statistics issued by the of Justice of (UNFCCC COP19) is the inspiration for the NGO Cli- the and the European Commission. These entEarth to review and assess the state of climate protec- statistics show that, in 2012, Poland had the highest number tion law in Poland. of complaints to the European Court of Justice filed by the The current Polish that makes up climate Commission against a Member State in connection with protection law is the result of the implementation into na- violation of European law (12 cases). These were mainly tional law of the European Union legislation on the subject. cases in the field of energy law and environmental law.1 Ac- Addressed to the Member States, directives of the Euro- cording to the Commission’s statistics, in 2011, Poland was pean Parliament and of the Council, in order to achieve ranked first among the EU Member States in the category of their effectiveness, require, above all, their transposition proceedings initiated by the Commission in the absence of into national law and the establishment of a national timely transposition of directives (46 cases).2 institutional framework for their implementation and en- of the implementation of EU climate law forcement. From this perspective, the 19th Conference of in Poland requires national authorities to react quickly to the Parties to the UN Framework Convention on Climate repair this state of affairs. This negligence leads to nega- Change is the right opportunity to raise the question of the tive consequences for Poland and its citizens, including a of the implementation of European climate protec- violation of the image of the Polish state as a Rule-of-law tion law in Poland, especially that of for the reduction state, and the lack of a rapid improvement in the imple- of so-called greenhouse gases. mentation of climate law in Poland could result in a lost Poland has made significant achievements in the reduc- process, financial sanctions imposed on the Polish state tion of greenhouse gas emissions. It needs to be noted, and the blocking by the European Commission of Euro- however, that the significant reduction in greenhouse gas pean Union structural funds. emissions in Poland is primarily due to the adjustment of the While advocating the actions mentioned above, it technical parameters of Polish industry to meet European should be stressed that the EU directives on climate environmental standards in relation to the Polish accession protection combine environmental and climate protection to the European Union in 2004, preceded by the process with the stimulation of economic development. Negligence of economic transformation that took place in Poland in in the implementation of these provisions into national the 1990s, as a result of which, many of the most obsolete law results in lost opportunities for the Polish economy industrial were closed for economic reasons. and tangible possibilities for Polish citizens. This proves The standards implemented into EU law in the field of the fact that efforts to reduce greenhouse gas emissions, climate protection define boundary levels for the reduc- when entered into a broader to reduce emissions, tion of greenhouse gas emissions in the coming years. could lead to the improvement of those parts of the envi- Whether that reduction trend will continue and whether the ronment which are the most relevant from the perspective Polish economy will move towards a low carbon economy of improving the quality of in Poland. In addition, a in line with EU policy in this area depends on the timeli- proper implementation of EU climate law combined with ness and quality of the implementation of this law. the development of local jobs in small and medium-sized This publication is a kind of a report, a review and an enterprises (particularly in the areas of energy efficiency analysis of the implementation in Poland of the most im- and ) and an increase in savings and portant directives which constitute climate protection law in efficiency in the public and private spheres, would in turn the European Union. It mainly covers the directives of the lead to the modernization of the economy. so-called climate and energy package and the associated From this perspective, it seems to be a purely rhe- functional directives on energy efficiency, industrial emis- torical question whether or not Poland will be able take sions and air quality. Their complete implementation could advantage of these opportunities. We hope that this report have a positive effect on the reduction trends of green- may at least partly contribute to the expected response. house gas emissions. The conclusions of the report are unfortunately not Professor Maria Magdalena Kenig-Witkowska optimistic. As it turns out, most of the directives have Program Board of ClientEarth Poland not been transposed into Polish law in a timely man- ner, which would be essential for their implementation, and this means that the objectives of the directives are significantly compromised. Particularly noteworthy is the lack of transposition of the so-called Second Directive Marcin Stoczkiewicz, Ph.D. on (2009/28/EC) and The Direc- Board Member of ClientEarth Poland tive on Industrial Emissions (2010/75/EU). Due to this negligence, the European Commission has launched proceedings under Article 258 and Article 260 of the on the Functioning of the European Union.

1. http://www.polskieradio.pl/5/3/Artykul/926348,Polska-najczesciej-lamie-unijne-prawo-KE-pozwala-nas-12-razy 2. http://ec.europa.eu/eu_law/docs/docs_infringements/annual_report_29/sg_annual_report_monitoring_eu_law_121130.pdf 6 Member States’ Duties to Comply with the Rule of EU Law

Sharon Turner

Introduction Section 1 There are few EU law obligations that are as well defined Member States’ obligations to comply as the obligation imposed on Member States to comply with the rule of EU law. This duty is clearly established as with the rule of EU law a fundamental constitutional duty of EU membership. The nature and scope of the obligation has been ad- In seeking to understand the nature and scope of the ob- dressed by the European Court of Justice on numerous ligation to comply with the rule of EU law, it is first neces- occasions and is consequently the subject of extensive sary to begin by clarifying the various sources of EU law. and unequivocal judicial interpretation. It encompasses There are six major sources of EU law; namely: not only the duty to comply with the terms of the European 1. Primary Law – comprising the Treaties (the ‘primary’ source of EU law) and general and the of Rights principles of EU law, but also a duty to comply with the EU 2. General Principles of EU Law ‘secondary’ legislation (, Decisions and Direc- 3. Secondary legislation – comprising Regulations, tives adopted by the EU institutions) and rulings of the Directives and Decisions European . 4. Judgments of the European Court of Justice The foundation stone for this obligation arises from the general duty of ‘sincere co-operation’ enshrined in the Although it can be said that there is a hierarchy between European Treaties from the outset. Today it is contained in the sources of EU laws, the differences between these Article 4(3) of the Treaty on European Union (TEU). categories are more formal than real in that all are equally First and foremost, it provides that Member States legally binding. and the EU institutions must, ‘in full mutual respect, assist each other in carrying out the tasks which flow from the Primary Sources of EU law Treaties.’ Secondly, it requires Member States ‘take any appro- The European Treaties are regarded as the ‘primary’ priate measure, general or particular, to ensure fulfilment source of EU law. They are described as such because of the obligations arising from the Treaties or resulting they cannot be amended by the EU institutions. Within from the acts of the institutions of the EU’. this category the European Union (TEU) and the Treaty Third, Member States must furthermore ‘facilitate the on the Functioning of the EU (TFEU) are regarded as the achievement of the Union’s tasks and refrain from any ‘constitutional’ Treaties of the Union because they are the measure which could jeopardise the attainment of the legal basis on which the Union is founded.1 Both have Union’s objectives’. been concluded for an unlimited period of time and both Compliance with the rule of EU law is undoubtedly one are of equal legal standing (that is, one is not subordinate of the most fundamental consequences of the general to the other). duty of sincere co-operation. Where a Member State fails The TEU sets out the principles, mission, values, to comply with the terms of the European Treaties or fails fundamental rights, objectives and institutional structure to comply with the obligations to comply with and trans- of the EU, while the TFEU sets out the more detailed pose EU secondary legislation, the European Commission rules concerning the functioning of the Union. It should is empowered under Articles 258 and 260 of the Treaty on also be noted that while both Treaties were the subject of the Functioning of the EU (TFEU) to commence enforce- extensive recent amendment by the Treaty of Lisbon in ment proceedings against it. Enforcement action may 2009, the latter Treaty did not itself have an independent lead not only to a binding European Court ruling requiring existence, thus the Lisbon Treaty is not considered as one compliance but potentially to the additional imposition of of the ‘constitutional’ Treaties of the EU. substantial financial sanctions. The EURATOM Treaty continues to exist alongside the foundational or core ‘constitutional’ Treaties and thus The purpose of this chapter is twofold; namely to provide remains a binding source of primary EU law. It should an overview of the: also be noted that the Charter of Fundamental Rights of the EU, in light of which all provisions of the foundational (a) Nature and scope of Member States’ obligation to com- Treaties must be interpreted (Protocol 30), is of equal legal ply with the rule of EU law, focusing in particular on the standing to the Treaties. duty to comply with EU secondary legislation and One of the most important concepts to emphasise con- cerning the binding effect of the EU Treaties is that they (b) European Commission’s powers to commence en- cannot be compared to classical international Treaties. In forcement proceedings and seek financial sanctions Case 26/62 Van Gend en Loos2 the European Court ruled that the where non-compliance has been identified. founding Treaty (now enshrined in the TEU and TFEU) “is more than an agreement which merely creates mutual obligations between the Contracting States” and that the “Community [now the ‘Union’] constitutes a new legal order of ”, which creates rights and obliga- 1. Article 1 TFEU tions not only for Member States but more importantly for 2. [1963] ECR 3 their nationals, “which become part of their legal heritage”. 7 General Principles of Law 1. There is no hierarchy between these types of measures. All carry equal legal weight. The general principles of EU law represent a category of 2. The EU institutions have the power to decide whether judge made law in that they have been adopted and devel- to use Regulations, Decisions or Directives to introduce oped over decades through rulings of the courts of the EU EU measures in a specific context. As will be seen – principally the European Court of Justice. For present below, these measures differ in how they function and purposes EU law includes adherence with the following thus their adoption will depend on the substantive con- general principles: text. That said, there are many individual areas of EU governed by combinations of Regulations, 1. Proportionality Decisions and Directives. There may, for example, 2. Fundamental Rights be a ‘foundational’ Regulation followed by a series of 3. Legal Certainty Directives and Decisions. However, there may equally 4. Legitimate Expectations be a foundational Directive (often termed a ‘framework’ 5. Equality Directive) followed by more specific Directives. 6. Precautionary Principle 3. Following amendments introduced by the Lisbon Treaty, 7. Procedural Justice Regulations, Directives and Decisions may take the form of ‘legislative’, ‘delegated’ or ‘implementing’ acts. These principles have been developed by the Court when The specific form they take will not affect their nature as interpreting the Treaties and also for interpreting the defined below and all forms of each measure are legally meaning and validity of EU legislation. Thus whereas all binding. The differences between them can be summa- sources of EU law will be interpreted in light of the general rised as follows: principles, they can only be used as a basis for invalidat- (a) Regulations, Directives or Decisions adopted by the ing sources of EU secondary legislation. ordinary legislative procedure (previously termed ‘co- decision’), or the special legislative procedures (used in Secondary Sources of EU Law specific contexts) set down in the Treaties are deemed to be ‘legislative acts’. Under Article 228 TFEU, the institutions of the Union are (b) Regulations, Directives or Decisions adopted without conferred with extensive powers to adopt ‘legal acts’ for use of a legislative procedure will be deemed either the purposes of implementing the objectives laid down in ‘delegated’ or ‘implementing’ Regulations, Directives or the Treaties and giving full effect to EU law and . Decisions. However, even though such measures are In effect, the EU institutions have law-making powers. Ar- formally deemed ‘non-legislative’, they are legally bind- ticle 228 gives the institutions the powers to adopt 3 types ing. The term ‘delegating’ or ‘implementing’ will be used of legal acts: in the title of the measure to clarify its nature.4 1. Regulations 2. Directives Re Delegated Acts: Under Article 290 TFEU, the Commis- 3. Decisions sion can only adopt Regulations, Directives or Decisions adopted as ‘delegated’ acts where power to do so has Although the nature of these legal acts varies, they are been explicitly conferred by measures adopted as ‘legisla- all legally binding. In essence, the Treaty created three tive acts’. Delegated acts are not adopted by the Commis- different categories of EU measures because different leg- sion with the advice of committees comprised of national islative measures will needed in different circumstances. technical experts (not the old ‘Comitology’ procedure) un- This reality is reflected in the definition of these measures der rules set down in Article 290 TFEU but subject to over- discussed below. sight by the European Parliament and Council. Delegated Before addressing the nature of these forms of EU acts are effectively what in many domestic legal systems legislation it is important to note that Article 288 TFEU also would be regarded as ‘secondary’ or delegated legislation. empowers the EU institutions to adopt ‘Recommendations’ Although they are defined as ‘non-legislative acts of gen- and ‘Opinions’. However, Article 288 also provides that eral application’, they are legally binding and apply to the these measures have ‘no legal force’. While Recommen- EU as a whole. Delegated acts can supplement or amend dations and Opinions are not legally binding, they are not certain non-essential elements of Regulations, Directives devoid of all legal effect. In essence, they are considered or Decisions adopted by means of legislative procedures. to form part of the ‘soft law’ of the EU, which includes The Commission has adopted a Communication giving guidelines, action plans, strategies and communications further clarification as to the nature of the delegated acts adopted by the EU institutions – most commonly the Com- process.5 mission. While soft law measures are not legally binding they have a legal weight in the interpretation of EU law. Re Implementing Acts: The adoption of measures adopted This fact was confirmed by the European Court in Case as ‘implementing acts’ are governed by Article 291 TFEU. 322/88 Grimaldi3 in which it ruled that national courts and Like delegating acts, implementing acts can have a gen- Member States are required to take Recommendations eral application to the EU as a whole. The major difference and Opinions into account when interpreting EU law. between these acts is that implementing acts are designed In terms of understanding the legal effect of Regula- to execute a legislative act without amendment or supple- tions, Decisions and Directives a number of general points mentation. Implementing acts are adopted where there is must first be emphasised; namely: a need to ensure uniform conditions for implementation.

3. [1989] ECR 4407. 4. These new categories of EU legislation are a development of the process previously used by the EU Commission to adopt the more detailed technical (but binding) rules needed to ensure the objectives of EU legislation. Prior to the Lisbon Treaty these measures were adopted by means of the ‘Comitology’ pro- cedure, and though a wide range of measures from rule making to more implementing guidelines were adopted under this process, no distinction was made between the types of measures that could be adopted. 5. ‘Implementation of Article 290 TFEU’ COM(2009) 673 final. 8 4. In terms of understanding the core nature of Regula- Belgium7 the European Court ruled that Member States tions, Directives and Decisions, the following important cannot achieve compliance by means of informal or points should be emphasised. However, it is worth non-legislative measures adopted at national level reiterating, that all three categories of EU legislation are (such as administrative measures). The requirement to equally legal binding whether they are adopted in their transpose Directives into national legislation is based legislative, delegated or implementing forms: on the Court’s concern that Member States must ensure (a) are defined as being of general application (i.e., to the legal certainty at national level concerning the require- Union as a whole) and shall be binding in their entirety and ments of EU Directives.8 directly applicable to Member States. In effect, Regula- 2. Member States must ensure that the terms of a Direc- tions are used to introduce legal obligations applying to tive are fully and accurately transposed into national the EU as a whole and come into legal effect from the date law. Legal transposition must be completed by the they are adopted by the EU. deadline set down in the Directive for transposition. (b) Decisions are identical to Regulations in that they Thus, late, partial or selective legal transposition of a are legally binding and come into effect upon being Directive is a breach of Article 288 TFEU. adopted by the EU; however they differ in that they 3. Member States must ensure timely legal transposition are used to introduce legal obligations for individual or for their entire territory. Thus introducing full legal trans- groups of Member States and thus are not addressed position that applies only to certain regions of a Member to the EU as a whole. Decisions are thus binding only State constitutes a breach of the compliance duty. In on the Member States to whom they are addressed. Case C-157/89 Commission v Italy9 the European Court (c) are identical to the other forms of legal acts in that they ruled that a Member State cannot rely on internal con- are legally binding, but differ in two respects; namely they: stitutional arrangements devolving legislative powers to I. May be used to address either the EU as a whole or regional administrations as a defence to late or incom- individual/groups of Member States. plete transposition. II. Require a process of legislative transposition and 4. Member States must also ensure compliance in prac- practical implementation by Member States. tice. In effect, the duty to achieve the results required by a Directive includes a duty to make whatever infrastruc- Understanding more about tural, regulatory, institutional, social, economic, environ- the legal effect of Directives mental or other practical changes necessary to ensure that the results required by the Directive are achieved in Directives are by far the most commonly used of the three reality. Thus, even where a Member State ensures full EU acts because they are specifically designed to facilitate legislative transposition, a failure to achieve the practical the process of harmonising legal standards across the outcomes required by a Directive will represent a breach EU. Although Member States are required to comply with of the duty of compliance. For example, where a Mem- the terms of Directives, most Directives give Member ber States ensures full legislative transposition of the States a specific period of time within which to make the Renewables Directive 2009/28/EC but fails in practical necessary arrangements to ensure conformity with the terms to meet the target increase the national consump- common EU standard. This period is referred to as the tion of renewable energy set by the Directive for that ‘transposition period’. The specific transposition period for State will constitute a breach of the compliance duty. each Directive varies depending on the complexity of the legal changes required at national level and/or the scale Before the transposition period has expired, a Direc- of economic, social, infrastructural or institutional change tive cannot be enforced against a Member State by required at national level to ensure compliance. It should an individual at national level.10 However, once the be noted that while the transposition period normally transposition period expires, the legal position changes involves an extended period (normally approximately two dramatically. Even where the State has failed to years), in some instances Directives do not prescribe a transpose a Directive correctly or fully into national law specific implementation deadline and thus full compliance by the prescribed deadline, the Directive nevertheless is required at national level 20 days after publication in the becomes ‘directly applicable’11 and is thus acquires full EU’s Official Journal. legal effect once this period expires. The implications of However, it is essential to emphasise, that while Article this can be summarised as follows: 288 TFEU affords Member States a degree of discretion concerning ‘the form and method’ of achieving compli- 1. The European Commission is empowered to exercise ance, this discretion is subject to strict legally enforceable its enforcement powers (discussed in Section 2) to chal- limits, the nature of which have been clearly laid down lenge non-compliance in law. These proceedings may by the European Court. The Court’s in this lead not only to a European Court ruling against the regard is extensive and well established.6 State but potentially the imposition of substantial lump The limits of Member State discretion can be summa- sum and/or daily financial sanctions. If the Directive rised as follows: also contains additional deadlines for achieving specific 1. Lawful transposition can only be achieved by means practical changes (i.e., new , or changes to of national legislation. In Case 102/79 Commission v the sources of energy consumed with a country) failure

6. This is also the subject of extensive academic analysis; leading examples include: S. Prechal, Directives in EC Law (Oxford University Press, 2005) and R. Schütze, European (Cambridge University Press, 2012).. 7. [1980] ECR 1473. 8.  Case C-58/89 Commission v [1991] ECR I-4983 9. [1991] ECR I-57 10. Case 80/86 Criminal Proceedings against Kolpinghuis Nijmegen BV [1987] ECR 3969. 11. It should be noted that the EU law concept of ‘direct applicability’ is distinct from the concept of ‘direct effect’, which refers to the potential for direct enfor- cement of an EU law measure before national courts by private parties. An EU law measure is only directly effective if specific criteria are satisfied and the- se are discussed infra. 9 to achieve those outcomes can only be challenged tion of its enforcement powers, taken together with powers when those time limits have expired. conferred on the European Court of Justice and the Mem- ber States’ duty to work in sincere cooperation with the EU 2. Individuals (and companies) may seek to directly institutions, create a powerful lever to drive compliance enforce the rights and duties contained in the Directive even in the face of entrenched resistance. in national courts against the State. National judges will also be under a duty to interpret national law, in so far For present purposes, the Commission’s powers as as is possible, to give effect to the terms of the Direc- the ‘guardian’ of EU law can be summarised as follows: tive. 1. First and foremost, the Commission has extensive 3. An individual or company may sue a Member State in powers to gather information concerning the nature and damages for any loss caused as a result of the State’s quality of Member State compliance. The duty to act failure to comply with the Directive (provided specific in sincere cooperation means that all organs of State circumstances are satisfied). In this context the concept at national level and all public bodies are placed under of the ‘State’ includes breaches attributable to the legis- a general duty to disclose any information thought lative, and judicial branches.12 necessary by the Commission to determine the qual- ity of national compliance. Almost all Directives now Section 2 include specific obligations requiring Member States to notify the Commission of the measures taken to achieve transposition when the deadline for achieving legal com- The European Commission’s pliance has expired. Failure to notify is a breach of EU Enforcement Powers law separate to any potential failure to ensure accurate, timely and full transposition. In addition, EU Competi- As was stated at the outset, Article 4(3) of the TEU places tion law confers the Commission with extensive powers Member States a general duty of sincere cooperation, of information gathering and investigation of individuals which obliges them to work with one another and the EU and undertakings. institutions to assist in carrying out the tasks which flow from the Treaties, and more specifically to take any ap- 2. As already noted, it is Commission policy to work in propriate measures to ensure fulfilment of the obligations close cooperation with Member States to support them arising from the Treaty or other sources of EU law and to in achieving compliance. Commission policies in this desist from any action that would jeopardise the Union’s regard are set out in two Communications (COM(2007) objectives. 502 final and COM(2008) 773).13 In addition to working Although it is clear from Section 1 above that the duty with national officials and supporting the EU IMPEL Net- of sincere cooperation requires Member States to ensure work,14 the Commission routinely publishes Communi- compliance with a substantial range of EU law sources, cations, Guidelines and Staff Working Papers designed there is little doubt that the achievement of the EU’s objec- to provide guidance to Member States on the correct tives depends fundamentally on full, timely and uniform interpretation of EU law and policy. Although these Member State compliance with the corpus of EU law - col- measures are not legally binding in the formal sense, lectively known as the European ‘acquis’. failure to comply with the advice provided in these docu- Without it, the process of EU harmonisation is ren- ments will be viewed by the Commission as a failure to dered impossible, and the political solidarity upon which act in good faith by a Member State and will be cited in the EU project depends, is fundamentally damaged. during any later enforcement proceedings. Perhaps not surprising, given the central importance of Member State compliance, EU law creates a sub- 3. Article 258 TFEU (ex Article 226 EC) sets out the Com- stantial legal and institutional framework designed to mission’s powers to bring a Member State before the deliver this outcome. Although actors at national level are European Court of Justice where it considers the State empowered and required to participate in the process to be in breach of EU law. It is important to emphasise of enforcing EU law (e.g., individuals, companies, civil that the European Court has interpreted the Commis- society, regulatory agencies and national courts), the sion’s powers in this context broadly.15 The Commis- European Treaties confer the European Commission with sion effectively has an unfettered discretion to decide the constitutionally assigned role of ‘guardian of the Trea- whether to open enforcement proceedings, whether to ties’. Article 17 TFEU explicitly requires the Commission bring it to the Reasoned Opinion stage and whether and to promote the ‘general interests’ of the Union and take how quickly to refer case to the European Court. Where appropriate measures to that end. proceedings are launched, the Commission will issue a More specifically, under Articles 258-260 TFEU the Letter of Formal Notice to the national authorities setting Commission is conferred with extensive powers to take out its views concerning the nature of the breach and enforcement action against Member States it deems to be inviting the Member State to submit its views concerning in breach of EU law, including powers to seek the impo- the accuracy of the Commission’s allegation and if so, sition of financial penalties. Although it is Commission the State’s proposals to ensure compliance. The Com- policy to work in close collaboration with Member States to mission will sometimes but not always engage in a proc- support compliance, there is little doubt that the combina- ess of correspondence with the Member State at the

12.  Joined Cases C-6/90 and C-9/90 Francovich and Others v Italy ECR I-5357.. 13. See also http://ec.europa.eu/environment/legal/law/compliance.htm. 14. Further information concerning the work of the European Union Network for the Implementation and Enforcement of EU Law (IMPEL) can be found at http://impel.eu/. 15.  The scope of the Commission’s enforcement powers and the European Court’s interpretation of those powers are discussed in P. Craig and G. deBurca, EU Law: Text, Cases and Materials (Oxford University Press, 2011) 5th Edition at Chapter 12. 10 pre-litigation phase. The Commission’s objective is to a breach of EU law. This means that the Commission ensure compliance without the need for a Court ruling; is now able to move quickly to penalise late or partial however, the Treaty also creates levers for the Commis- legislative transposition and effectively prevents Mem- sion which strongly discourage Member States abus- ber States from protracting non-transposition through ing this process and protracting non-compliance. If the exploiting the pre-Lisbon two-stage penalty procedure. Commission continues to be dissatisfied with the state of legal or practical compliance, it is empowered under 6. More generally it should be noted that the Commission Article 258 (ex Article 226 EC) to issue a ‘Reasoned has published a number of Communications setting out Opinion’. This document sets out the case against the its approach to the use of these powers and to the as- Member State and indicates the Commission’s intention sessment of the level of appropriate penalty.16 to refer the case to Court. The Reasoned Opinion also gives the Member State a deadline for ensuring compli- Three key factors are considered; namely: ance. If the Member State fails to ensure compliance with all elements of the Opinion within the timescale (a) The importance of the EU rule breached required, the Commission may then refer the case for (b) The Member State’s voting weight in the Council judgment before the European Court. Although there (and thus its influence over the law-making process) may be a delay of up to 2 years before the case is (c) The Member States’s GDP (and thus its ability to pay). finally heard by the Court, the Court is only permitted to consider the state of Member State compliance at the Conclusion time when the Reasoned Opinion expired. Thus, even if compliance is delivered just before hearing, the Court In conclusion therefore there is little doubt that the will not take this into account in its ruling. obligation imposed on Member States to act in ‘sincere co-operation’ has a very specific legal meaning and 4. Article 260 TFEU (ex Article 228 EC) sets out the consequence within EU law. The European Court has Commission’s powers to apply to the European Court consistently emphasised the fundamental importance of to have financial sanctions (in the form of daily and/or timely and full implementation of Directives as core duty lump sum penalties) imposed on a Member States in of EU membership. breach of EU law. In general the Commission may only Where this duty is breached, the Commission is apply to the Court for the imposition of penalties once it empowered to take potentially swift action to enforce and has already obtained a ruling against a Member State penalise non-implementation of EU Directives. under Article 258 TFEU. In such cases the penalty is being imposed because the State has failed to comply with the terms of the Court’s earlier ruling in the Article 258 proceedings within a reasonable period of time. However, it is important to note that unlike Article 258, following the Lisbon amendments the Commission is not required to issue a Reasoned Opinion in Article 260 proceedings and thus is free to expedite a case for hearing before the Court. Although few financial penal- ties have been imposed on Member States since these powers were introduced in the mid-1990s, this should not be mistaken for Commission reluctance to launch Article 260 proceedings. The Commission makes fre- quent use of these powers; however, the small number of instances where fines have been imposed reflects the significant deterrent posed by the Court’s willingness to impose very substantial fines where Article 260 cases are ultimately referred for judicial hearing. In other words, the vast majority of Member States remedy the breach before the case is referred to the judicial stage.

5. However, it is also important to emphasise one further dimension to the Article 260 procedure with particular importance in the context of Directive implementation. The particular seriousness of the risk to EU harmo- nisation posed by late or incomplete transposition of Directives was reflected in a second amendment to the penalty procedure by the Lisbon Treaty. In essence, where a Member State fails to communicate (‘notify’) to the Commission full legislative transposition of a Directive by the required deadline, the Commission is now empowered to apply directly under Article 260 for the imposition of penalties. In other words, the Com- mission is not required to first seek a Court ruling under Article 258 (formerly Article 228EC) – the reason being that late or partial transposition is well established as

16. These are available at: http://ec.europa.eu/eu_law/infringements/infringements_260_en.htm. 11 Directive on the greenhouse gas emissions allowance trading scheme1 Marcin Stoczkiewicz

12 1. The purpose of the Directive starting in 2013 will decrease in a linear manner beginning from the mid-point of the period from 2008 to 2012. The The Directive constitutes the main measure that fosters quantity will decrease by a linear factor of 1.74 % com- the implementation of climate and on CO2 pared to the average annual total quantity of allowances emission reduction. The General Court, in its judgement issued by Member States in accordance with the Com- in case No T-370/11, Poland v the Commission, stated mission Decisions on their national allocation plans for the that: “In accordance with the re- period from 2008 to 2012. Moreover, in respect of installa- ferred to in Article 174(2) EC2, the purpose of the trading tions carrying out activities listed in Annex I, which are only scheme was to fix a price for greenhouse gas emissions included in the Community scheme from 2013 onwards, and leave the operators to choose between paying the Member States have to ensure that the operators of such price or reducing their emissions.”3 The Directive amends installations submit to the relevant competent authority Directive 2003/87/EC of the European Parliament and of duly substantiated and independently verified emissions the Council of 13 October 2003 establishing a scheme data in order for them to be taken into account for the for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/ EC (OJ L 275/32, 25.10.2003, p. 631). As the name of the Directive suggests the purpose of this legal act is to improve and extend the greenhouse gas (GHG) emission allowance trading scheme. The Directive also introduces Deadline for the transposition changes to the purpose of Directive 2003/87/EC. After the amendments provided for in Directive 2009/29/EC, Article of the Directive 2009/29/EC 1 of Directive 2003/87/EC4 specifies the following objec- tives: 1) the establishment of a scheme for greenhouse passed on 31.XII.2012. Directive gas emission allowance trading within the Community in order to promote reductions of greenhouse gas emissions has not been fully transposed. in a cost-effective and economically efficient manner; 2) the further reduction of greenhouse gas emissions so as to contribute to levels of reductions that are consid- ered scientifically necessary to avoid dangerous climate change; 3) the adoption of provisions for assessing and adjustment of the Community-wide quantity of allowances implementing a stricter Community reduction commit- to be issued. ment exceeding 20%, to be applied upon the approval by The Directive also introduces a new principle on the auc- the Community of an international agreement on climate tioning of emission allowances. Prior to this amendment, change. “It is clear from the second paragraph of Article the Directive 2003/87/EC provided for the principle of free 1 of and recital 3 in the preamble to Directive 2003/87 allocation of emission allowances by Member States. Pur- that, after its amendment by Directive 2009/29, Directive suant to Article 10 (1) of the amended Directive 2003/87/ 2003/87 provides for the reductions of greenhouse gas EC, from 2013 onwards, Member States will auction all emissions to be increased so as to contribute to the levels allowances which are not allocated free of charge in ac- of reductions that are considered scientifically necessary cordance with Article 10a and 10c. to avoid dangerous climate change. As is apparent from Following the principle of the auctioning of allowances, those provisions and recitals 3, 5, 6 and 13 in the pream- the Directive specifies the obligations of Member States ble to Directive 2009/29, the principal objective of Direc- regarding the allocation of revenues from the auctions. tive 2003/87, after its amendment by Directive 2009/29, Article 10 (3) of the amended Directive 2003/87/EC states is to reduce by 2020 global greenhouse gas emissions in that Member States determine the use of revenues gener- the European Union by at least 20% compared to 1990 ated from the auctioning of allowances. At least 50% of levels.”5 these revenues, or their equivalent in financial value, should be used for one or more of the following: a) to 2. Main provisions of the Directive reduce GHG emissions; b) to develop renewable as well as other technologies contributing to the transi- Due to the limited scope of this study, this section dis- tion to a safe and sustainable low-carbon economy and to cusses only the most significant changes in the Com- help meet the commitment of the Community to increase munity GHG emission allowance trading scheme that are energy efficiency by 20 % by 2020; c) measures to avoid introduced in the Directive. and increase afforestation; d) forestry se- The Directive changes the principles pertaining to questration in the Community; e) the environmentally safe 6 the number of allowances in the Community . Pursuant capture and geological storage of CO2; f) to encourage a to Article 9 of the amended Directive 2003/87/EC, the shift to low-emission and public forms of transport; g) to fi- Community-wide quantity of allowances issued each year nance research and development in energy efficiency and

1. Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the green- house gas emission allowance trading scheme of the Community (OJ L 140, 5.06.2009, p. 63) (hereinafter referred to as The Directive). 2. After the entry into force of the Treaty of Lisbon – Article 191 (2) of the Treaty on the Functioning of the European Union. 3. The judgement of 7 March 2013 in the case T-370/11, Republic of Poland v European Commission, point 90. In this case Poland appealed against the Com- mission Decision 2011/278/EU determining transitional Union-wide rules for the harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC. The Court dismissed the complaint and Poland did not appeal. See also judgements on the National allocation plan for emission allow- ances that was adopted in order to implement Directive 2003/87/EC: the judgement in the case T-183/07 Republic of Poland v Commission of the European Communities and the judgement in the case C-504/09, won by Poland. 4. Consolidated text: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2003L0087:20090625:PL:HTML 5. The judgement of 7 March 2013 in case T-370/11, The Republic of Poland v Commission, point 68. 6. After the entry into force of the Treaty of Lisbon – “in the European Union”. 13 clean technologies in the sectors covered by the Directive; initiated by the same date. This exception refers to new h) measures intended to increase energy efficiency and Member States, including Poland. This results from the insulation of buildings; i) to cover administrative expenses conditions specified in Article 10 c (a-c) of the amended of the management of the Community scheme. Directive 2003/87/EC. The Member State concerned has The Directive also introduces exceptions to the princi- to submit to the Commission a national plan that provides ple of the auctioning of emission allowances. Article 10a of for investments in retrofitting and upgrading of the infra- the amended Directive 2003/87/EC specifies transitional structure and clean technologies. Community-wide rules for harmonised free allocation. The The national plan also has to provide for the diversi- great majority of the provisions contained in this article fication of the and sources of supply for an define the competences of the European Commission with amount equivalent, to the extent possible, to the market regard to the adoption of implementing measures. value of the free allocation with respect to the intended These provisions do not have to be transposed into the investments. Pursuant to Article 10c (5) of the amended national legal systems of the respective Member States. Directive 2003/87/EC, a Member State that intends to Some of them, however, have to be implemented by allocate free allowances has to, by 30 September 2011, Member States. This in particular refers to the significant submit to the Commission a relevant application. The restriction that no free allowances are granted to Commission assesses the application and may reject it,

generators, installations for the capture of CO2, pipe- or any aspect thereof, within six months of receiving the

lines for transport of CO2 or to CO2 storage sites (Article relevant information. 10a (3)) as well as for any electricity production by new Pursuant to Article 11 of the amended Directive entrants (Article 10a (7) (3)) and for installations that have 2003/87/EC, each Member State has to publish and ceased their operations (Article 10a (19)). Free allowances submit to the Commission, by 30 September 2011, the can be granted for district heating networks and high- list of installations covered by this Directive in its territory efficiency co-generation (Article 10a (4)). and any free allocation to each installation in its territory. If a Member State intends to adopt financial measures By 28 February each year, competent authorities specify in favour of sectors or subsectors determined to be ex- the quantity of allowances that are to be allocated for that posed to a significant risk of carbon leakage due to costs year, calculated in accordance with Articles 10, 10a and relating to greenhouse gas emissions passed on in elec- 10c of the amended Directive 2003/87/EC. tricity prices, they have to fulfil the requirements defined in Other important amendments introduced by the Direc- Article 10a (6). This requirement of the amended Directive tive to Directive 2003/87/EC refer to: use of CERs and 2003/87/EC has to be transposed to national legislation. ERUs from project activities in the Community scheme Pursuant to Article 10a (11) of this Directive, the amount before the entry into force of an international agreement of allowances allocated free of charge on the basis of this on climate change (Article 11a), the validity of allowances provision should reach 80% of the quantity determined (Article 13), the monitoring and reporting of emissions (Ar- in accordance with the implementing measures adopted ticle 14), procedures for the unilateral inclusion of addition- by the Commission. Thereafter the free allocation has to al activities and gases (Article 24), the exclusion of small decrease each year by equal amounts, resulting in 30 % installations subject to equivalent measures (Article 27), free allocation in 2020, with a view to reaching no free al- adjustments applicable upon the approval by the Com- location in 2027. munity of an international agreement on climate change Article 10 c of the amended Directive 2003/87/EC (Article 28), a report to ensure the better functioning of the specifies another significant exception to the principle of carbon market (Article 29). primary auctioning of GHG emission allowances. Pursuant Apart from this, the Directive introduces to Directive to this article, by derogation from the auctioning principle, 2003/87/EC provisions on: the disclosure of informa- some Member States may give a transitional free alloca- tion and professional secrecy (Article 15a), harmonised tion to installations for electricity production in operation rules for projects that reduce emissions (Article 24a) and by 31 December 2008 or to installations for electricity pro- measures in the event of excessive price fluctuations duction for which the investment process was physically (Article 29a).

14 3. When the Directive came into force Pursuant to its Article 4, the Directive came into force on 25 June 2009. 4. Deadline for transposing the Direc- tive in the Polish legal system According to Article 2 of the Directive, Member States have to bring into force the laws, regulations and admin- istrative provisions necessary to comply with the Direc- tive by 31 December 2012. Certain regulations should have been transposed even earlier. This refers to Article 9a (2) (the provision to the relevant authority of data on emissions from installations included in the Community scheme from 2013 so as to take them into consideration for the adjustment of the Community-wide quantity of allowances to be issued) and Article 11 (publishing and submitting to the Commission a list of installations and any free allocations to them) of the amended Directive 2003/87/EC, as for which laws, regulations and adminis- trative provisions should have been brought into force by 31 December 2009. 5. Transposition

The Act of 28 April 2011 on the greenhouse gas emis- sion allowance trading scheme came into force on 21 June 2011 (Dz.U. of 2011, No 122, item 695, hereinafter referred to as: The Act of 28 April 2011).7 Footnote 1 of the Act of 28 April 2011 states that the provisions of the Act implement the following Directives: “(...) 4) Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (OJ L 140, 5.06.2009, p. 63).” This suggests that the Act of 28 April 2011 provides a full transposition into Polish legislation of the Directive 2009/29/EC. In reality this is not the case. In fact, the Act of 28 April 2011 does not transpose to Polish legislation the most significant provisions of Direc- tive 2009/29/EC. It does not transpose Article 3 (h) of the amended Directive 2003/87/EC, which defines the term “new entrant”. Pursuant to the amended Directive 2003/87/ EC, this terms means: “any installation carrying out one or more of the activi- ties indicated in Annex I, which has obtained a green- house gas emissions permit for the first time after 30 June 2011; any installation carrying out an activity which is in- cluded in the Community scheme pursuant to Article 24(1) or (2) for the first time, or any installation carrying out one or more of the activi- ties indicated in Annex I or an activity which is included in the Community scheme pursuant to Article 24(1) or (2), which has had a significant extension after 30 June 2011, only in so far as this extension is concerned.” Pursuant to Article 3 (4) of the Act of 28 April 2011, a “new entrant” means “an operating installation that emits greenhouse gases included in the scheme, that fulfils the conditions for being included in the scheme and that has not been covered in the national allocation plan for the in- stallations included in the scheme or in the register referred to in Article 21 (2 or 3).” It is enough to compare the scope

7. See: L. Karski, System handlu uprawnieniami do emisji gazów cie- plarnianych. Komentarz do ustawy. Wolters Kluwer, Warsaw 2012. 15 could constitute a basis for applying the derogation from the auctioning scheme that is provided for in Article 10c. However, even the transposition of this particular provision is faulty, as Article 10c of the amended Directive 2003/87/ EC was not fully transposed into national legislation. The Act of 28 April 2011 does not transpose into Polish legisla- tion the following key elements that establish the deroga- tion which is provided for in Article 10c of the amended Directive 2003/87/EC: (1) Article 10c (1) – to the extent of the reference to the principle: “by derogation from Article 10a (1) to (5)”; (2) Article 10a (7) (3) – to the extent of the specification that: “No free allocation shall be made in respect of any electricity production by new entrants”; (3) Article 3 (h) – to the extent of the definition of a “new entrant”. The Act of 28 April 2011 transposes into Polish legislation only the term “installations for electricity production for which the investment process was physically initiated by 31 December 2008”, which is used in Article 10c (1) of the amended Directive 2003/87/EC. Of particular importance, the Act does not transpose this phrase from Article 10c (1): “by derogation from Article 10a (1) to (5)”. As a conse- quence, Article 10a (7) has not been transposed either. It clearly excludes the possibility of free allowances for new entrants that generate electricity. Moreover, the Act of 28 April 2011 lacks a definition of a new entrant, specified in Article 3 (h) of the amended Di- rective 2003/87/EC as an installation “which has obtained a greenhouse gas emissions permit for the first time after 30 June 2011.” Due to these deficiencies in transposition, of these two definitions to conclude that the Act of 28 April Polish legislation does not exclude the possibility of free 2011 does not transpose the definition of new entrants, as allowances for new entrants, i.e. installations that have specified in the amended Directive 2003/87/EC. obtained their first greenhouse gas emissions permit after The Act of 28 April 2011 does not transpose to Polish 30 June 2011. This partial and faulty transposition has a legislation Article 10 of the amended Directive 2003/87/ significant impact on the implementation of the amended EC, which introduces the principle of the auctioning of Directive 2003/87/EC and jeopardizes the achievement of emission allowances and defines how revenues from the the Directive’s objectives. auctioning should be allocated. It should be noted that Before finalisation of this study (14 September 2013), Articles 29-39 of the Act of 28 April 2011 refer only to the Poland did not adopt any legal act that would transpose auctioning of allowances from the national reserve and the the Directive 2003/87/EC as amended by the Direc- reserve for joint implementation projects if not utilised by tive 2009/29/EC. The assumptions to the draft act that 31 December 2012. It is, therefore, rather clear that these transposes Directive 2009/29/EC (of 7 March 2012) is provisions do not introduce obligatory auctioning of emis- the only publicly available document in this respect.8 On sion allowances and that they do not refer to allowances 14 August 2012, the Government Information Centre from after 31 December 2012. announced that the Council of Ministers had adopted The Act of 28 April 2011 transposes, however, cer- the assumptions to the draft act on the greenhouse gas tain elements of the amended Article 10c of the Direc- emission allowance trading scheme, submitted by the tive 2003/97/EC. Pursuant to Article 50 (1) of this act, a Minister of the Environment.9 permit is issued at an application filed by a subject that is According to the portal WNP, the act is being pre- responsible for the implementation of a fuel combustion pared by the Government Legislation Centre and in installation with a rated heating capacity of over 20 MW. the opinion of the Ministry of the Environment the new Article 50 (2) of this act states that “The implementation of provisions should come into force in the fourth quarter an installation is initiated on the day that marks the start of 201310. This date is unrealistic, as the whole legisla- of an investment process for this installation. A day prior tive process has to be conducted in Parliament. The to 31 December 2008 on which preparatory work on the aforementioned portal claims that the draft act contains construction site of the installation was initiated shall be a provision which states that revenues from allowance treated as the day that marks the start of an investment auctioning should be counted as state budget revenues.11 process for the installation.” Therefore, the Act of 28 April The author of this section is convinced that such a solu- 2011 transposes certain elements of Article 10c of the tion does not comply with Article 10 (3) of the amended amended Directive 2003/87/EC, namely, the elements that Directive 2003/87/EC.12

8. http://www.mos.gov.pl/g2/big/2012_03/c9d2fa1aaf6b2b45d11e6cd0a8975fa8.pdf 9. http://www.ekonomia.rp.pl/artykul/924817.html 10. http://www.wnp.pl/wiadomosci/energetyka-czeka-na-ust-o-handlu-uprawnieniami-do-emisji,206322_1_0_0_0_0.html 11. http://www.wnp.pl/wiadomosci/energetyka-czeka-na-ust-o-handlu-uprawnieniami-do-emisji,206322_1_0_0_0_0.html 12. See: M. Toporek, Argumenty wskazujące na konieczność przeznaczenia przez Polskę środków finansowych ze sprzedaży uprawnień do emisji CO2 w ramach Europejskiego Systemu Handlu Emisjami (EU ETS) na efektywność energetyczną, ClientEarth, January 2013: http://www.clientearth.org/reports/opinia- przeznaczeniesrodkow-z-ets-final.pdf 16 It should be noted that the act that is currently bind- the Polish legal system but only to the extent that allowed ing in Poland in this area is the Act of 17 July 2009 on the the Polish government to submit to the European Com- management system for emissions of greenhouse gases mission the application that is referred to in Article 10c (5) and other substances (Dz.U. of 2009, No 130, item 1070, of the amended Directive 2003/87/EC, i.e. to the extent as amended, hereinafter referred to as The Act of 17 July of the exception to the principle of emission allowance 2009). This Act does not transpose Directive 2009/29/EC, auctioning. while its scope covers the management of Kyoto units. It establishes the National Centre for Emission Balancing 6. Implementation and Management. Pursuant to Article 3 (2) (10) (j) of the Act of 17 July 2009, one of the tasks of the Centre is to As the amended Directive 2003/87/EC has not been conduct auctions of emission allowances. The aforemen- transposed into Polish legislation, in particular the principle tioned act, however, does not introduce an obligation to of emission allowance auctioning, the rule for the alloca- sell emission allowances at auctions in the trading period tion of revenues from allowance auctioning and conditions of 2013-2020. Neither does it provide for legislative rules for the application of the derogation that is provided for in governing the trade of emission allowances in this period. Articles 10a and 10c, this legal act has not been properly Therefore, the Act of 17 July 2009 does not provide a legal implemented either. basis to introduce the auctioning of GHG emission allow- As far as emission allowance auctioning is concerned, ances, as referred to in the amended Directive 2003/87/ it should be noted that Poland has made an attempt at EC. It also does not introduce any legislative basis that implementing the amended Directive 2003/87/EC without would define how revenues from such auctions should be transposing it. This attempt was made very late – in Sep- allocated. Therefore, it does not transpose Article 10 of the tember 2013. On 2 September 2013, the Ministry of the amended Directive 2003/87/EC. Environment announced on its website that the Minister of To sum up, it can be concluded that by the day on Environment had signed an agreement with the European which this report was finalised (14.09.2013), Directive Energy Exchange (EEX) by virtue of which Poland will 2003/87/EC had not been transposed into Polish leg- temporarily sell its emission allowances through the Com- islation to the extent of the amendments introduced by munity Auction Platform, which is operated by the EEX. Directive 2009/29/EC. This refers to the basic principles The National Centre for Emission Balancing and Manage- of the latter, in particular, the principle of emission allow- ment will represent Poland in this process. Auctions are ance auctioning. Selected elements of Article 10c of the to be held on a weekly basis, starting on 15 September amended Directive 2003/87/EC have been transposed into 2013. According to information presented on the website

8. http://www.ekonomia.rp.pl/artykul/924817.html 9. http://www.wnp.pl/wiadomosci/energetyka-czeka-na-ust-o-handlu-uprawnieniami-do-emisji,206322_1_0_0_0_0.html 10. http://www.wnp.pl/wiadomosci/energetyka-czeka-na-ust-o-handlu-uprawnieniami-do-emisji,206322_1_0_0_0_0.html 11. See. M. Toporek, Argumenty wskazujące na konieczność przeznaczenia przez Polskę środków finansowych ze sprzedaży uprawnień do emisji CO2 w ra- mach Europejskiego Systemu Handlu Emisjami (EU ETS) na efektywność energetyczną, ClientEarth, styczeń 2013: http://www.clientearth.org/reports/opi- nia-przeznaczeniesrodkow-z-ets-final.pdf

17 of the Ministry of the Environment, this solution will be “a Member State which has not adopted the implement- maintained until Poland establishes its own, national auc- ing measures required by the directive in the prescribed tion platform. This will be possible only when the new pro- periods may not rely, as against individuals, on its own visions on the emission allowance trading scheme come failure to perform the obligations which the directive into force.13 As the aforementioned mechanism was not in entails.” The Commission Regulation (EU) No 1031/2010 operation when the report was finalised, it is impossible to of 12 November 2010 on the timing, administration and assess its functioning. Due to the missing transposition of other aspects of the auctioning of greenhouse gas emis- the amended Directive 2003/87/EC, the solution that has sion allowances pursuant to Directive 2003/87/EC of the been applied in Poland is temporary and not transparent. European Parliament and of the Council establishing a Currently (September 2013) there are no binding scheme for greenhouse gas emission allowances trading provisions in Poland that would clearly state which instal- within the Community also does not provide for an obliga- lations that fall within the scope of the amended Directive tion to purchase emission allowances on auctions that 2003/87/EC have to purchase allowances at auctions would be imposed directly on operators.16 and which are exempted from this obligation. Polish Due to the lack of transposition of the Directive’s main legislation does not include a clear, statutory obligation to principles, in particular the principle of emission allow- purchase allowances on auctions. Moreover, there is no ance auctioning, the Directive has not been properly legal basis to enforce this obligation. Therefore, admin- implemented. On the other hand, Poland has transposed istrative bodies cannot require operators of installations the provisions on the derogations from the auctioning that fall within the scope of the Directive to purchase their scheme. As a result, exceptions from the auctioning allowances at auctions. principle have been implemented into national legisla- This lack of transposition is particularly noticeable in tion. Following the adoption in the Act of 28 April 2011 Article 21 of the Act of 28 April 2011, which defines the of the provisions on the derogation that is specified in obligations of public administration bodies with respect to Article 10c of the amended Directive 2003/87/EC, the the free allocation of allowances. Therefore, it contains Polish government initiated measures aimed at obtaining implementing measures for Article 10c of the amended consent from the EC for the derogation. On 30 September Directive 2003/87/EC (defining one of the derogations 2011, it sent to the EC an application for a transitional from the auctioning principle). Other provisions of the free allocation for the retrofitting of electricity generation Act of 28 April 2011 also do not introduce a clear obliga- units, pursuant to Article 10c (5) of the amended Directive tion to purchase at auctions all allowances that were not 2003/87/EC.17 In its decision of 13 July 2012 the EC did allocated for free pursuant to Article 10a and 10c of the not voice any objections to the application, provided that: amended Directive 2003/87/EC, starting from 1 January 1) six installations that are specified in Annex I and II are 2013. Therefore, when operators of installations that fall excluded from the free allocation; 2) 30 installations that within the scope of the obligations that are specified in are specified in Annex III are excluded from the national the amended Directive 2003/87/EC purchase emission investment plan.18 According to the justification of the de- allowances at the auctions that are conducted by the Eu- cision, in its national plan, Poland proposed investments ropean Energy Exchange, they do it on a voluntary basis. in the retrofitting and upgrading of infrastructure, clean It should be, however, noted that, pursuant to Article 87 technologies and the diversification of the energy mix and (1 and 2) of the of the Republic of Poland, energy supplies. However, the Commission believes that the sources of universally binding law of the Republic of the investments from Annex III do not comply with the Poland include: the Constitution, acts, ratified interna- tional agreements and regulations as well as enactments of local law, in the territory of the body issuing such an en- actment.14 It is worth stressing that Article 10 (1) (1) of the amended Directive 2003/87/EC cannot be applied directly to operators of installations that fall within the scope of the Directive. In particular, this provision cannot directly oblige operators to purchase allowances at auctions. The judge- ment of the Court of Justice of the European Union in the case Pubblico Ministero v. Tulio Ratti15 bears significance for the aforementioned obligation. The Court stated that

13. http://www.mos.gov.pl/artykul/7_aktualnosci/21238_aukcje_polskich_ uprawnien_do_emisji_na_wspolnotowej_platformie_aukcyjnej_prowad- zonej_przez_gielde_eex.html 14. The Constitution of the Republic of Poland of 2 April 1997 (Dz.U. of 1997, No 78, item 482, as amended) 15. Judgement in the case Pubblico Ministero v.Tulio Ratti, 148/78, point 22. 16. OJ L 302/1, 18.11.2010. 17. Foundation ClientEarth Poland appealed against the CO2 emission per- mits issued for some of the installations that are included in the afore- mentioned derogation application. These cases have not yet been deter- mined, as the appeals are to be analysed by the Supreme Administrative Court in Warsaw. 18. http://ec.europa.eu/clima/policies/ets/cap/auctioning/ docs/c_2012_4609_pl.pdf 19. On problems with applying in Poland the derogation that is specified in Article 10c see: M.Stoczkiewicz, The Emission Trading Scheme in Polish Law. Selected Problems Related to the Scope of Derogation from the General Rule for Auctioning in Poland, Yearbook of Antitrust and Regulatory Studies, Vol. 2011, 4(4), see: http://www.yars.wz.uw.edu.pl/ yars2011_4_4/Stoczkiewicz_The_Emission_Trading_Scheme.pdf 18 requirements of Article 10c (1) of the Directive. Therefore, measures have not been initiated to achieve the Direc- they are ineligible for being financed by the value of the tive’s purpose, broad administrative steps have been allowances allocated pursuant to Article 10c.19 taken to ensure that Poland will be able to apply for the In its Guidance document on the optional applica- derogation for the electricity sector and grant State aid to tion of Article 10c of Directive 2003/87/EC (OJ C 99/9, operators of electricity generation installations in the form 20 31.03.2011) the European Commission stresses that: of free CO2 emission allocations. “the free allocation of emission allowances to electricity generators and the financing of corresponding invest- 7. The fulfilment of the Directive’s ments required by Article 10c of Directive 2003/87/EC objective would in principle involve State aid within the meaning of Article 107(1) TFEU. As the amended Directive 2003/87/EC has not been trans- Pursuant to Article 108(3) TFEU, Member States posed and implemented into Polish legislation, in particu- must notify measures involving State aid to the Commis- lar with respect to the imposition on installation operators sion. Following notification, Member States may not put of the obligation to purchase emission allowances at proposed measures into effect until this procedure has auctions and the principles for the allocation of revenues resulted in a final decision by the Commission. The Com- from the auctioning of emission allowances, the objective mission intends to adopt compatibility criteria for assess- of this Directive, as specified in Article 1 (1), has not been ment of this type of aid in the near future. An application achieved so far (September 2013). pursuant to Article 10c(5) of Directive 2003/87/EC, and The emission allowance trading scheme that functions any consequent decision by the Commission, is entirely in Poland does not comply with the provisions of the Direc- without prejudice to Member States’ State aid notification tive. On the other hand, the transposition and advanced obligations pursuant to Article 108 TFEU, and Member implementation of Article 10c of the amended Directive States should plan for any required State aid notifications 2003/87/EC, with respect to opportunities for granting free accordingly.”21 emission allowances for operators of electricity generation This type of aid is assessed pursuant to the Guide- installations, significantly threatens the fulfilment of the ob- lines on certain State aid measures in the context of the jectives specified in Article 1 (2) (a reduction of total GHG greenhouse gas emission allowance trading scheme post- emissions in the EU of at least 20% by 2020, compared 2012 (OJ C 158/4, 5.6.2012).22 These guidelines actually with the level of 1990) and Article 1 (3) (the introduction lower the level of competition and environmental protec- of a stricter Community reduction commitment exceeding tion, compared with the general principles for State aid in 20%, to be applied upon the approval by the Community environmental protection.23 On 18 April 2014, the Polish of an international agreement on climate change).25 It is government pre-notified the European Commission about worth referring here to the well-grounded case law of the its aid programme of free CO2 emission allowances for the Court of Justice of the European Union. implementation of the tasks included in the national invest- The Court states that “during the period prescribed for ment plan. transposition of a directive, the Member States to which According to the data available in the Office of Compe- it is addressed must refrain from taking any measures tition and on 12 June 2013, notifica- liable seriously to compromise the attainment of the result tion of the programme has not been given.24 To sum up, it prescribed by that directive”.26 should be concluded that although sufficient implementing 8. Infringement procedures initiated by the European Commission As Poland did not transpose Directive 2009/29/EC on time, on 31 January 2013 the European Commission sent to the Polish authorities a formal notice, based on Article 258 of the Treaty on the Functioning of the European Un- ion. This constitutes the first step in the procedure of filing a complaint by the Commission to the Court of Justice of the European Union.

20. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:099: 0009:0028:PL:PDF, point 27. 21. See: M.Stoczkiewicz, Pomoc państwa dla przedsiębiorstw energetyczn- cyh w prawie Unii Europejskiej, Wolters Kluwer, Warsaw 2011, p. 117- 131. 22. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:158: 0004:0022:PL:PDF 23. See: M.Stoczkiewicz, Free allocation of EU ETS emission allowances to installations for electricity production from a State aid law perspective, Environmental Economics, Vol. 2012, 3(3). 24. http://www.uokik.gov.pl/informacje_o_decyzjach_komisji_europejskiej2. php 25. A detailed analysis of the possibility of fulfilling reduction targets goes beyond the scope of this study. 26. Judgement in the combined cases: from C-165/09 to C-167/09 Stichting Natuur en Milieu, point 78; judgement in the case C-129/96 Inter-Envi- ronment Wallonie, point 45; judgement in the case C-14/02 ATRAL, point 58; judgement in the combined cases C-261/07 and C-299/07 VTB-VAB and Gallatea, point 38. 19 Directive on the promotion of the use of energy from renewable sources1 (Power)

Robert Rybski

20 1. The objectives of the RES directive as electricity prices in the internal market do not reflect the full environmental and social costs and benefits of In accordance with recitals 1-5 of the RES Directive pre- energy sources used2. amble, the real effect of using renewable energy sources k. The use of agricultural material such as manure, will be as follows: slurry and other animal and organic waste for a. a substantial improvement in due to production has, in view of the high greenhouse gas decreased dependence of EU Member States on en- emission saving potential, significant environmental ergy imports and the dominance of small and medium- advantages in terms of heat and power production and sized energy producers, stabilising the functioning of its use as . the grid system; b. decentralised energy production which has many Another objective of the Directive is to continue the benefits, including the utilisation of local energy sources, implementation of national development measures and increased local security of , shorter transport activities introduced on the basis of Directive 2001/77/ distances and reduced energy transmission losses; EC (hereinafter – “I RES Directive”3) – and it is from this c. opportunities for employment and regional develop- particular viewpoint that the provisions of the RES Direc- ment, especially in rural and isolated areas. Decentrali- tive should be interpreted. The objective is to be achieved sation of energy production also fosters community de- by means of an adequate transposition of the measures velopment and cohesion by providing income sources set out in the Directive. Regulation stability is to provide and creating jobs locally; an incentive for the business community to make rational, d. promotion of technological development and sustainable investment in the renewable energy sector innovation; which are capable of reducing its dependence on imported e. reduction of greenhouse gas emissions, which will fossil fuels and boost the use of new energy technologies. ensure EU compliance with the ; However, even if the solutions provided for in both f. development of small and medium-sized enterprises directives in question are similar, under no circumstances (SMEs) – local and regional SMEs do not only deal with should national solutions adopted on the basis of Directive renewable energy production, they are usually involved 2001/77/EC continue being applied without prior confir- in the investment process and maintenance of the grid, mation that a significantly higher standard has not been which will contribute to sustainable economic growth. established by the RES Directive – this kind of mistake g. meeting of national targets for energy from renew- was made by Polish legislators in the case of Article 16 of able sources in gross final energy consumption; the RES Directive4. h. emphasis of the importance of renewable energy potential that lies in increased energy efficiency and 2. Main provisions of the RES Directive energy savings. Energy efficiency and energy savings are the most effective way to meet the national target The aim of the RES Directive is to establish a framework as they enable a very fast increase of RES share in for the promotion of energy from renewable sources. The the national energy mix. Decreased energy demand, harmonisation comprises an appropriate legal framework RES capacity maintained at a constant level, low RES operating costs and the obligation to provide for priority access to the grid-system of electricity produced from renewable energy sources mean a higher share of RES in national gross final energy consumption – priority ac- cess to the grid-system and the merit order result in dis- placing electricity produced from fossil fuels from power exchanges. Energy efficiency and energy savings only speed up the process. i. Moreover, according to recital 26 of the RES direc- tive, it is desirable that energy prices in the Eu- ropean Union reflect the external costs of energy production and consumption, including, as appropri- ate, environmental, social and healthcare costs. The achievement of this EU objective is possible to the fullest extent with renewable energy sources which generate virtually no external costs. j. Pursuant to the directive, the EU is to promote the use of energy from renewable sources for as long

1.  Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable so- urces and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ L 140/16. 5.6.2009. Hereinafter: “RES Directive”. 2. See point 27 of the preamble. 3.  Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity from renewable energy sources in the internal electricity market (OJ L 283/33). 4. See: Correspondence table between the act on renewable energy sour- ces and the RES Directive, page 43 and subsequent pages; at: http://legi- slacja.rcl.gov.pl/docs//2/19349/69284/69285/dokument51406.pdf?lastU- pdateDay=09.08.13&lastUpdateHour=15%3A45&userLogged=false&dat e=sobota%2C+10+sierpie%C5%84+2013 21 mandatory targets in 2020. Pursuant to Article 3(2) of the RES Directive, in the two-year periods preceding the year Deadline for the transposition 2020, the share of energy from renewable sources must equal or exceed that shown in the indicative trajectory of the RES Directive passed set out in part B of Annex I5. Consequently, the targets for Poland look as follows: 8,76% (2011-2012); 10,14% on 5.XI.2010. Untill 14.IX.2013 (2013-2014); 11,31% (2015-2016); 12,87% (2017-2018). Directive has not been fully 2.1.3. Introduction of measures effectively designed to ensure the appropriate transposed. share of RES energy

The two requirements above should be viewed through the prism of Article 3(2) of the RES directive, pursuant to as well as adequately conducted national energy and which Member States must introduce measures effec- climate policy. On that account, the main provisions of the tively designed to ensure that the share of energy from directive shall be divided into three groups according to renewable sources equals that set out for the 2020 target the implementation requirements they entail. and shown in the indicative trajectory. It means that each The first group (I.) includes provisions which establish Member State is required to establish an appropriate legal binding targets for the share of RES in the energy mix. framework and to take appropriate steps to achieve the The second group (II.) includes provisions which are above mentioned targets. subject to strict transposition as part of the process of establishing a uniform legal framework in the European 2.2. Provisions subject to strict transposition Union. The third group (III.) comprises those provisions with regard to which Member States are granted greater 2.2.1. Access to the grid-system of electricity freedom as to how they implement them in the national produced from renewable legal system – achieving the result is crucial and much energy sources more important than the uniformity of legal frameworks within the EU. ] As far as priority access to the grid system is concerned, the RES Directive provides for a set of specific measures 2.I. Provisions establishing binding targets and actions to be taken by Member States: for the share of RES in gross final energy a. Guaranteed transmission and distribution of elec- consumption tricity produced from renewable sources Pursuant to Article 16 (2)(a) of the RES Directive, Mem- 2.1.1. Mandatory national overall target ber States are obliged to ensure that transmission sys- tem operators and distribution system operators in their National targets for the share of energy from renewable territory guarantee the transmission and distribution of sources in gross final consumption of energy in 2020 are electricity produced from renewable energy sources. set out in Article 3 (1) of the RES Directive and in part This provision is subject to requirements relating to the A of Annex I thereof. As far as Poland is concerned, the maintenance of the reliability and safety of the grid, which share must reach at least 15%, which does not refer to definitely constitute a positive obligation of the state. This installed or available capacity, but to capacity which is means that national regulatory authorities are obliged to actually used. verify that the systems used by economic operators are accurate, reliable and protected against . 2.1.2. Indicative trajectory b. Priority or guaranteed access of electricity produced from renewable sources to the grid-system Another binding element of the directive is the indicative Pursuant to Article 16(2)(b) of the RES directive, trajectory tracing a path towards the achievement of final Member States are obliged to provide for either priority

5.. Pursuant to part B of Annex I to the RES Directive: “The indicative trajectory referred to in Article 3(2) shall consist of the following shares of energy from re- newable sources: S2005+ 0,20 (S2020— S2005), as an average for the two-year period 2011 to 2012, S2005 + 0,30 (S2020— S2005), as an average for the two-year period 2013 to 2014, S2005+ 0,45 (S2020— S2005), as an average for the two-year period 2015 to 2016; and S2005+0,65 (S2020— S2005), as an average for the two-year period 2017 to 2018, where: S2005= the share for that Member State in 2005 as indicated in the table in part A, and S2020= the share for that Member State in 2020 as indicated in the table in part A.”.

22 access or guaranteed access to the grid-system of electricity produced from renewable energy sources. This means the establishment of a system guaranteeing permanent access of RES electricity to the grid-system. This provision is also subject to the requirements speci- fied in Article 16(2) of the RES Directive. c. Priority given to generating installations using renewable energy sources Pursuant to Article 16(2)(c) of the RES Directive, Mem- ber States are obliged to ensure that when dispatching electricity generating installations, transmission system operators shall give priority to generating installations using renewable energy sources in so far as the secure operation of the national electricity system permits and based on transparent and non-discriminatory criteria. Member States are further obliged to ensure that ap- propriate grid and market-related operational measures are taken in order to minimise the curtailment of elec- tricity produced from renewable energy sources. This provision is also subject to the requirements specified in Article 16(2) of the RES Directive. d. Preventing inappropriate curtailments Pursuant to Article 16(2)(c) in fine of the RES Direc- tive, any curtailments to the connection of new renew- able energy installations to national grid-systems are considered inappropriate. Member States are obliged to ensure that the responsible system operators indicate which corrective measures they intend to take in case such inappropriate curtailments occur. This means that Member States must require system operators to prevent any curtailments to the connection of new re- newable energy installations to transmission grids. This provision is also subject to the requirements specified in Article 16(2) of the RES Directive. The obligation to indicate corrective measures clearly suggests that operators are responsible for maintaining the safety and reliability of the grid and this cannot be the basis for rejecting the request for a grid connection. e. Making public the standard rules relating to the bearing and sharing of grid connection costs In order to ensure the transparency of the connection the frameworks and rules for the bearing and sharing of process, pursuant to Article 16 (3) sentence 1, Member these costs – the first review was to be conducted by 30 States are obliged to require transmission system op- June 2011, further reviews are to be conducted every erators and distribution system operators to set up and two years thereafter. make public their standard rules relating to the bearing The solution referred to herein is specified more pre- and sharing of the costs of technical adaptations. Exam- cisely in Article 16(6) of the RES directive: “The sharing ples of such technical adaptations include grid connec- of costs referred to in paragraph 3 shall be enforced by a tions and grid reinforcements, improved operation of the mechanism based on objective, transparent and non-dis- grid and rules on the non-discriminatory implementation criminatory criteria taking into account the benefits which of the grid codes. initially and subsequently connected producers as well Sentence 2 of Article 16(3) further specifies that the as transmission system operators and distribution system rules must be based on objective, transparent and non- operators derive from the connections.” discriminatory criteria taking particular account of all g. Obligations of TSOs and DSOs to provide informa- the costs and benefits associated with the connection tion to new producers of RES energy of those producers to the grid and of the particular cir- Moreover, the directive requires transmission system cumstances of producers located in peripheral regions operators and distribution system operators to provide and in regions of low population density. Such benefits any new producer of energy from renewable sources include lower transmission costs due to reduced energy wishing to be connected to the system with the compre- transmission losses, lower investment in infrastructure hensive and necessary information required. Pursuant due to frequent connections to low- and medium-volt- to Article 16(5) par. 1 letters (a) to (c), the information to age grids. be provided includes: f. The bearing and sharing of grid connection costs by - a comprehensive and detailed estimate of the costs system operators associated with the connection; Pursuant to Article 16(4) of the RES directive, transmis- - a reasonable and precise timetable for receiving and sion system operators and distribution system operators processing the request for grid connection; may be required to bear, in full or in part, the costs of - a reasonable indicative timetable for any proposed RES grid connections. Member States are obliged to grid connection. review and take the necessary measures to improve Article 16(5) sentence 2 further stipulates that producers 23 of electricity from renewable energy sources wishing to be connected to the grid may be allowed by Member States to issue a call for tender for the connection work. h. Calculation of transmission and distribution tariffs In accordance with Article 16(7) of the RES Directive, Member States are obliged to ensure that the charging of transmission and distribution tariffs does not discrimi- nate against electricity from renewable energy sources. Tariffs charged by system operators for the transmission and distribution of electricity from plants using renew- able energy sources should reflect the realisable cost benefits resulting from the ’s connection to the net- work. Such cost benefits could arise from the direct use of the low-voltage grid. As is pointed out in sentence 1 of Article 16(7) in fine of the RES Directive, the charg- ing of transmission and distribution tariffs should not discriminate against electricity from renewable sources, including in particular electricity from renewable energy sources produced in peripheral regions, such as island regions, and in regions of low population density. The standard set out by the RES Directive is very clear: being an EU Member State, Poland is obliged to provide priority access to the grid-system for electricity produced from renewable energy sources. This access may be curtailed, however, in order to guarantee the security of the national electricity system and security of energy supply, in which case Member States must ensure that the system operators responsible for taking such curtailment measures initiate appropriate correc- tive action to adapt the grid to new energy sources. This standard also stipulates that while calculating the costs to be borne by new producers of energy from renewable sources wishing to be connected to the system, due account should be taken of the benefits brought by the decentralised production of electricity. 2.2.2. Statistical transfers

The directive also provides for a mechanism of statistical transfers. Pursuant to Article 6(1), Member States may agree on and may make arrangements for virtual transfers of a specified amount of energy. The “transferred” amount of energy is deducted from the amount of energy from renewable sources that is taken into account in measuring the compliance of the Member State making the trans- fer and added to the amount of energy from renewable sources that is taken into account in measuring compli- ance by another Member State accepting the transfer. This regulation requires the establishment of appropriate provisions in national law. 2.2.3. Guarantees of origin

Another instrument is introduced for the purpose of prov- ing to the final customer that a given share or quantity of energy was produced from renewable sources. Pursuant to Article 15 of the directive, Member States are obliged to ensure that a guarantee of origin (GO) is issued for each 1 MWh unit of energy. Guarantees of origin have no function in terms of target compliance, they should also be distin- guished from statistical transfers. While issuing GOs for electricity from renewable sources is obligatory, Member States may also arrange for guarantees of origin to be issued in response to a request from producers of heating and cooling from renewable energy sources. Guarantees of origin have no function in terms of target compliance or the calculation of gross final consumption of energy from renewable sources. 24 -

2.2.4. National action plan adequately simplified and less burdensome, i.e. that they are proportionate and necessary. Pursuant to Article 4 of the RES Directive, each Member It is particularly important in the case of non-commer- State is obliged to adopt a renewable energy action plan. cial projects meant, in full or in part, for private production The plans should set out adequate measures to be taken or constituting an element of passive house design6. As to achieve national targets by 2020. When evaluating its for micro- and small RES installations, which are usually expected gross final consumption of energy in its national constructed by natural persons, homeowner associations renewable energy action plan, each Member State should or housing cooperatives, less burdensome administrative assess the contribution which energy efficiency and en- barriers may be a decisive factor in encouraging these ergy saving measures can make to achieving its national entities to make such investment. targets. The effects of planned statistical transfers or joint projects should also be taken into account. 3. Entry into force

2.2.5. Definitions used in the RES Directive Pursuant to Article 28, the directive entered into force on 25 June 2009. The national law of all EU Member States must also es- tablish a uniform terminology framework. The following key 4. National implementation terms have been defined in the RES Directive: a. ‘energy from renewable sources’ means ‘energy from Pursuant to Article 27, Member States were obliged to renewable non-fossil sources, namely wind, solar, aero- bring into force the laws, regulations and administrative thermal, geothermal, hydrothermal and ocean energy, provisions necessary to comply with the directive by 5 , , landfill gas, treatment December 2010. plant gas and ’; b. ‘biomass’ means ‘the biodegradable fraction of prod- 5. Transposition. ucts, waste and residues from biological origin from agriculture (including vegetal and animal substances), On the day of the completion of this publication, appropri- forestry and related industries including and ate measures giving force to the energy-related provisions aquaculture, as well as the biodegradable fraction of of the RES Directive had not been fully and adequately industrial and municipal waste’; implemented into the Polish legal system. Some of the c. ‘gross final consumption of energy’ means ‘the energy-related provisions had already been transposed energy commodities delivered for energy purposes to with an almost three-year delay by the so-called “Small industry, transport, households, services including pub- Tri-Pack”, i.e. an act of 26 July 2013 amending the Energy lic services, agriculture, forestry and fisheries, including Law Act and certain other acts (Journal of Laws of the the consumption of electricity and heat by the energy Republic of Poland, No 0, item 984), which entered into branch for electricity and heat production and including force on 11 September 2013. Missing statutory solutions losses of electricity and heat in distribution and trans- include: mission’; ● Priority access to energy from renewable sources, espe- d. ‘’ means ‘liquid fuel for energy purposes cially as regards all RES connections, not only micro- other than for transport, including electricity and heating installations; and cooling, produced from biomass’. ● The removal of administrative barriers for all RES con- nections, not only micro-installations. 2.3. Provisions that enable effective implementation 5.1. Provisions establishing binding targets for the share of RES in gross final energy 2.3.1. Simplification of administrative consumption procedures, regulations and codes 5.1.1. Mandatory national overall 2020 target Pursuant to Article 13 of the RES Directive, Member and indicative 2020 trajectory States are obliged to ensure that any national rules concerning the administrative procedures, regulations Transposition of provisions laid out in Article 3(1) and (2) and codes applied to energy from renewable sources are of the RES Directive was delayed by almost three years and it took place when the “Small Tri-Pack” entered into force. Articles 20b, 20c, 20d, 20e and 20f were added to the Energy Law Act of 10 April 19977 (Journal of Laws of the Republic of Poland, No 0, item 1059, as amended). The Member State is to A legal framework was thus created for determining the degree of implementation and the planned national ensure priority or guaranteed measures necessary to achieve the mandatory national overall target for the year 2020. Authorities deemed access to the electricity competent in this respect include the minister in charge

network produced from 6. See the “SAMOspłacający się dom” (self-repaying house) project by a coalition of Polish firms under the auspices of BOŚ Bank S.A. Press in- renewable energy sources. formation from Dziennik Gazeta Prawna daily is available at: http://ser- wisy.gazetaprawna.pl/nieruchomosci/artykuly/709676,samosplacaja- cy_sie_dom_slonce_sfinansuje_100_tys_nowych_budynkow.html and: http://www.cire.pl/item,77115,1,0,0,0,0,0,koalicji-eko-polska-proponuje- samosplacajacy-sie-dom.html. 7. Hereinafter: “Energy Law Act”. 25 In this case, the deadline for transposing the optional provisions of the RES Directive into the Polish legal sys- tem was met. 5.2. Provisions subject to strict transposition 5.2.1. Access to the grid-system of electricity produced from renewable energy sources The provisions of the RES Directive referring to priority access to the grid-system are definitely subject to strict transposition. While, under Article 9a(6) of the Energy Law Act, an official supplier is obliged to purchase electricity produced from renewable energy sources, the way in which other provisions are formulated precludes full transposition of the RES directive provisions referring to priority access due to the highly limited nature of the possibility of con- necting new renewable energy sources to the grid-system. First of all, not only does the current legal status guaran- tee no priority access to new renewable energy sources, but it also limits standard (not priority) access to the grid- system by introducing certain requirements, i.e. “technical and economic conditions for connection to the grid-system and energy supply”, which are not provided for by the RES Directive9. When the “Small Tri-Pack” came into force, which hap- pened almost three years after the transposition deadline, the first priority access solution was added to the Energy Law Act, but only with reference to micro-installations10. This is a positive proposal, as it exempts the smallest renewable sources of energy from an assessment of tech- nical and economic possibilities as a prerequisite for their connection. Moreover, the costs of installing the safety system and the tariff metering system are to be borne by the distribution system operator. Only this kind of solution may be referred to as a of economic affairs, the minister in charge of the envi- model that is compliant with the RES Directive since it ronment (related to bioliquids) and the Chairman of the provides proper incentives for investors and takes account Energy Regulatory Office. of the high degree of adaptability of micro-installations to grid operation. It must be pointed out, however, that the RES Directive 5.1.2. Introduction of measures effectively does not classify energy sources depending on their size, designed to ensure the appropriate capacity or type, but obliges all Member States to ensure share of RES energy priority or guaranted access to the grid-system for all types and all sizes of RES installations. The same regulations as Support schemes in Poland rely on Articles 9a, 9e, 91, those applying to micro-installations, or very similar ones, 32(1)(1) and Articles 33-35 of the Energy Law Act, Regula- should be extended to all types of RES installations to tion of the Minister of the Economy of 14 August 2008 for ensure full transposition of Article 16 of the RES Directive. the detailed scope of obligations in respect to obtaining certificates of origin and submitting them for cancella- 5.2.2. Statistical transfers tion, payment of a substitution fee, purchase of electricity and heat from renewable energy sources, as well as the The RES Directive allows Member States to agree on and obligation to confirm data on the amount of electricity may make arrangements for virtual transfers of a speci- produced from a renewable energy source8, as well as fied amount of energy, in the form of so-called statistical Regulation of the Minister of the Economy of 4 May 2007 transfers. The relevant national regulations only came on detailed conditions for the operation of the power into force on 11 September 2013 with the passing of the system (Journal of Laws of the Republic of Poland, No 93, “Small Tri-Pack”. By adding Articles 55a, 55b and 55c to item 623, as amended). the Energy Law Act, a legal framework was created which

8. Journal of Laws of the Republic of Poland, No 156, item 969, as amended. 9. See points 28-70 of the legal analysis “The Small Tri-Pack” and Directive 2009/28/EC of 23 April 2009 on the promotion of the use of energy from renewable sources”, at: http://www.clientearth.org/reports/robert-rybski-trojpak-analiza-ozefinal25062013.pdf 10. It refers to the following provision of Article 7(8d)4: “If an applicant for the connection of a micro installation to the distribution grid is connected to the grid as a final customer, and the installed capacity of the micro installation which the applicant is seeking to connect is not higher than the capacity specified in the conditions for connection which were issued, connection to the grid is provided on the basis of a notice of a micro installation connection, such notice to be submitted to the electricity undertaking to whose network the installation is to be connected, after appropriate safety systems and the tariff metering system have been installed. Otherwise a micro installation shall be connected to the distribution network on the basis of a connection . The costs of instal- ling the safety system and the tariff metering system shall be borne by the distribution system operator.” 26 enables Poland to “buy” or “sell” electricity by means of economic affairs is to draw up a “draft plan” that will be a statistical transfer with another EU Member State, the adopted by the resolution of the Council of Ministers and Swiss Confederation or a European Free Trade Associa- submitted to the European Commission. It is inappropri- tion (EFTA) Member State. ate, however, to adapt the “national action plan”12 by pass- Thus, it should be concluded that the relevant provisions ing an internally binding law, i.e. a resolution of the Council have been correctly transposed. of Ministers, instead of opting for a universally binding law, i.e. a regulation of the Council of Ministers. 5.2.3. Guarantees of origin Although the “national action plan” produces no direct legal effects for entities, such legal effects will be indirect. For the purpose of indicating to the final customer what The “national action plan” sets out adequate measures to share or quantity of energy in a given supplier’s energy be taken to achieve national RES targets, so it defines the mix was generated from renewable sources, the Direc- national policy in this area. tive introduces a mechanism of guarantees of origin. The The “national action plan” does not forecast the mechanism was only transposed into the Polish legal development of renewable energy sources in Poland as system in 2013 when Articles 11g, 11h, 11i, 11j, 11k and much as the effects of the actions that Poland will take. 11l were added to the Energy Law Act. Thus, the “national action plan” constitutes a legal act Under this regulation, guarantees of origin must be on the basis of which entities (prosumers, professional issued only for electricity from renewable sources – which investors, local authorities, farmers, homeowner associa- means that the obligation to transpose the Directive was tions or housing cooperatives) may plan their actions. The carried out. It would also be advisable, however, to issue “national action plan” should therefore be adapted as a guarantees of origin for heating and cooling – as these universally binding law in accordance with Article 87(1) of sources of energy are very important in Poland. A large the Constitution of the Republic of Poland. portion of heat in Poland comes from the heating grid so Pursuant to Articles 20b and 20c, also added to this the final customer should be able to find out what share or chapter of the Energy Law Act, Poland is obliged to submit quantity of heating or cooling was generated from renew- a report to the Commission on progress in the promotion able sources. and use of energy from renewable sources, which is in line with the requirement laid down in Article 22(1)(1) of the 5.2.4. National action plan RES Directive. The key elements of an appropriate report are speci- Pursuant to the RES Directive, each Member State is fied in Article 22(1) (2a) letters b, c, i, j, k of the Energy obliged to adopt a renewable energy action plan which Law Act. They have not been fully provided for by Article should set out adequate measures to be taken to achieve 20b and 20c of the Energy Law Act, however, so the trans- the national targets. position is not complete in this respect either. The reports Not until 2013 was chapter 3a added to the Energy are to be drawn up every two years by the minister in Law Act11, according to which the minister in charge of charge of economic affairs who submits them to the Coun-

11. “National renewable energy action plan and the monitoring of the market for electricity, heat supplied or obtained from renewable energy sources, agricul- tural biogas, as well as the market for biocomponents, liquid fuels and liquid used in transport” 12. It is also pointed out in the opinion issued by The Bureau of Research on 19 December 2012, No BAS-WAPEiM-3365/12, on the compliance of renewable energy sources draft act with the EU law, pp. 17-18.

27 cil of Ministers. Once adopted by the Council of Ministers, renewable sources in gross final energy consumption. the report is then submitted to the minister in charge of Thus, the transposition only seems adequate while in fact, economic affairs of the European Commission. due to the statutory to regulations that are not in force, the provisions of the RES Directive have not been 5.2.5. Definitions used in the RES Directive transposed adequately. Meanwhile Poland, with its great potential for biofuel and bioliquid production, could actively As regards the definition of “bioliquids”, the following defi- promote regional development by counting biofuels and nition was added to the Energy Law Act with the entry into bioliquids towards the national renewable energy target force of the “Small Tri-Pack”: and by reducing the amount of imported fossil fuels. a. “bioliquids” - liquid biofuel or other renewable fuels as Under the RES Directive, a definition of “energy from re- defined by the Act of 25 August 2006 on Biocomponents newable sources” must be established in such a way that and Liquid Biofuels (Journal of Laws of the Republic the source of energy is emphasised. The following defini- of Poland, No 169, item 1199, as amended), produced tion is applied, however, in the Energy Law Act: from biomass only, used for energy purposes other than b. “renewable energy source” – a source which uses for transport, including electricity and heating in installa- , , , sea wave, tions that are compliant with the requirements concern- sea current and tidal energy, or energy obtained from ing gas emissions as set out in the Act of 17 July 2009 the fall of rivers and biomass energy, energy from - on the System to Manage the Emissions of Greenhouse fill biogas as well as biogas produced in the process Gases and Other Substances (Journal of Laws of the of sewage disposal and treatment or decomposition of Republic of Poland, No 130, item 1070, as amended).” plant and animal remains”15 (Article 3(20) of the Energy Law Act). The transposition is thus incomplete as the part of the The correct definition was introduced with a three-year RES Directive referring to transport was to be imple- delay, upon the entry into force of the “Small Tri-Pack”, by mented by an amendment to the Act on Biocomponents adding Article 20g to the Energy Law Act: and Liquid Biofuels, which has not taken place so far13. “Energy from renewable sources, referred to in this Since no criteria have been established in chapter, means wind power, solar power, aerothermal, ge- national legislation (Article 17), pursuant to Article 5(1) othermal and hydrothermal energy, sea wave, sea current subparagraph 3 of the RES14 Directive, bioliquids cannot and tidal energy, or energy obtained from the fall of rivers count towards the overall national target for energy from and biomass energy, energy from landfill biogas as well as

13. See: Chapter ”Renewable energy sources (Transport)”. 14. Pursuant to the third subparagraph of Article 5(1): “Subject to the second subparagraph of Article 17(1), biofuels and bioliquids that do not fulfil the susta- inability criteria set out in Article 17(2) to (6) shall not be taken into account.” 15. The definition was modified upon entry into force of the ”Small Tri-Pack” and as of 11 September 2013 it reads as follows: ”renewable energy source - a source which uses wind power, solar power, aerothermal, geothermal and hydrothermal energy, sea wave, sea current and tidal energy, or energy obta- ined from the fall of rivers and biomass energy, energy from landfill biogas as well as biogas produced in the process of sewage disposal and treatment or decomposition of plant and animal remains”. 28 biogas produced in the process of sewage disposal and treatment or decomposition of plant and animal remains.” Whereas this provision is in line with the requirements No justification for the of the Directive in terms of its content, restricting its appli- cability to just Chapter 3a of the Energy Law Act consti- sulution whereby end users tutes an inappropriate legislative measure, which trans- lates into inadequate transposition. The term “energy from who generate energy renewable sources” is frequently used in the Directive, e.g. in Article 15 or 16, and not only in Article 3 – pursuant to in microinstallations, Article 20g of the Energy Law Act, however, this definition applies only to the extent to which Article 3 of the Directive will be able to sell it at has been transposed. It gives rise to an inappropriate legal loophole resulting from an unnecessarily narrow, inad- a price 20% lower than equate transposition. Thus, the definition of energy from renewable sources any other manufacturer. has not been adequately transposed as its applicability has been restricted only to this chapter of the Energy Law Act whereas it should apply to the whole act. 5.3. Provisions that enable effective implementation

5.3.1. Simplification of administrative As regards the desired level of administrative - procedures, regulations and codes riers, the ultimate goal is the possibility to complete all the formalities connected with new installations at “one One of the incentives which encourages investment window/counter”. The introduced facilitations for prosum- in new RES installations is a lack or limited number of ers are aimed at transposing the provisions of Article 13 administrative barriers. It is particularly important in the of the RES Directive; however, the transposition is neither case of non-commercial projects meant, in full or in part, adequate nor complete. for personal production or which constitute an element of passive house design. As for micro and small RES instal- 6. Implementation lations, which are usually constructed by natural persons, homeowner associations or housing cooperatives, less 6.1 National action plan burdensome administrative barriers may be a decisive fac- tor in encouraging these entities to make such investment. It is doubtful whether Article 4 of the RES Directive, oblig- Administrative barriers to the development of new RES ing Member States to adopt renewable energy action installations in Poland result, however, from a number of plans, has been implemented. On 7 December 2010 the legally binding acts, especially those relating to land de- velopment plans, environmental impact assessments, and the obligation (as a rule) to obtain a for businesses dealing with electricity generation. Not until the “Small Tri-Pack” came into force with the so-called “prosumer amendment”, was Article 13 of the RES Directive adequately transposed, but only with refer- ence to micro-installations. The solutions implemented constitute a return to the ideas of the Climate Coalition which, six months earlier, had presented a package of suggested amendments to the “Small Tri-Pack” abolish- ing administrative barriers to the development of micro- installations in Poland: no requirement to obtain a license, no requirement to run a business and a requirement to buy back any electricity generated in micro-installations. However, the proposed amendments were not adopted then. The final version of the “prosumer amendment” is a ministerial project which first of all aimed at encouraging citizens to produce energy for their own use. The price restriction, allowing the sale of excess elec- tricity at a price equal to 80% of the average competitive market price in the previous calendar year, is supposed to be an adequate regulatory stimulus. Nevertheless, the solution is highly controversial as it does not explain why those final customers who generate excess electricity and wish to sell it back to the grid must sell it at a 20% lower price than the one other producers were able to charge in the previous year on the spot market. Apart from the sug- gestions made by the Climate Coalition the amendment also takes into account electricity produced in micro-instal- lations from agricultural biogas, which is a very positive proposal. 29 Council of Ministers adopted a document called: “The Na- tional Renewable Energy Action Plan”16, which was then sent to the European Commission on 9 December 2010 – however, pursuant to Article 4(2) of the RES Directive, this should have taken place by 30 June 2010. As regards the above mentioned resolution of the Council of Ministers, first of all it lacked an adequate legal basis, which calls into question the binding force of this resolution due to the violation of the principle of , inadequate legal form and passing procedure. The formal irregularities in question are most conspicu- ous in the “Supplement to the The National Renewable Energy Action Plan” 17 published on 2 December 2011. Although the issue is only indirectly regulated by the Direc- tive18, it is advisable to update the National Action Plan instead of drawing up a “Supplement”, which confirms the absence of adequate national procedural rules. 6.2. Introduction of measures effectively designed to ensure an appropriate share of RES energy

Taking into account the fact that a significant part of the support is directed at depreciated and biomass co- combustion boilers and hydropower plants, it is compro- mised that the total installed capacity of renewable energy sources will enable Poland to meet the obligatory target for its share of energy produced from renewable sources in gross final energy consumption by 2020, as the support scheme grants benefits to depreciated installations only. Moreover, the support scheme does not take into ac- count the type of technology used for generating electricity from renewable sources and it grants benefits solely to in- stallations generating a certain amount of electricity. Con- sidering the fact that the support scheme depends, among other things, on the number of green certificates issued and since a significant part of the support is directed at depreciated co-combustion boilers and hydropower plants, these instruments are oversupplied, hence their low price, which is hardly an incentive to invest in new capacity. It means that the support system does not fulfil its primary function of increasing the capacity of RES installations. Moreover, as of 6 January 2011, when Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control)19 came into force, the refurbishment obligation refers to the majority of co-combustion installations as it is mainly carried out in the oldest coal boilers. Since no refurbishment plans have been drawn up, the only possibility which is taken into account is to cover these installations under the Transitional National Plan which allows a transitional period for some installations as set out by the directive on industrial emissions. It should be borne in mind, however, that the Transitional Action Plan will remain in force only until 2020 when biomass co- combustion capacities covered by the plan will be discon- nected from the National Energy System. Thus, from 2020 at the latest, significant co-combus- tion sources will no longer be included in the national energy mix. Even if it were possible to cover a significant

16. See: press release of the Ministry of Economy at:http://www.mg.gov.pl/ Bezpieczenstwo+gospodarcze/Energetyka/Odnawialne+zrodla+energii/ Krajowy+plan+dzialan 17. The document is available at: http://www.mg.gov.pl/files/upload/12326/ uzupe%C5%82nienie%20KPD_www.pdf 18. Article 4(4) subparagraph 2 a contrario. 19. OJ L 334, item 17. 30 -

part of those installations under the Transitional National A reasoned opinion was sent to Poland in March 2012, Plan, which could contribute to reaching the 15% target and on 21 March 2013 the European Commission referred level of energy produced from renewable energy sources Poland to the Court of Justice of the European Union for by 2020, these capacities will no longer be available after “failing to transpose the RES Directive”20. 2020 – which also proves that the support scheme is not a The Commission has requested the Court’s declaration long-lasting one. that “by failing to adopt the laws, regulations and admin- This example does not mean that we opt for providing istrative provisions necessary to ensure compliance with support to co-combustion technologies for as long as pos- Directive [...] on the promotion of the use of energy from sible, it is used only to emphasise the loss of biomass ca- renewable sources [...], and in any event by not notify- pacities that results in limiting the possibility of increasing ing the Commission of such provisions, the Republic of the share of energy from renewable sources after 2020. Poland has failed to fulfil its obligations under Article 27(1) It points to an urgent need to promote the installation of of that directive”21. new RES capacities. Continued financial support provided The Commission proposes a daily penalty of to co-combustion installations, which will be shut down € 133,228.80 which is to be paid from the date of the in 2020 at the latest, only increases the loss of capacity judgment until the transposition is completed. It means installed in RES. that about PLN 205 million could have to be paid for Thus, as for the support scheme and measures neces- each year until the transposition is completed. sary to achieve the national target for the share of energy produced from renewable sources in gross final energy consumption, the RES Directive has been implemented inadequately as the measures taken are ineffective and fail to fulfil their function. 7. Achievement of the Directive’s objectives As far as the RES Directive is concerned, the achievement of its energy-related objectives refers to three areas:

a. reaching the 15% national target for energy produced from renewable energy sources by 2020, and b. following the established indicative trajectory towards the 2020 target for the 15% share of energy produced from renewable sources in gross final energy consump- tion; c. introducing effectively designed legal and political measures to ensure the achievement of objectives set out in the preamble to the Directive – it refers not only to the 20 % target for the share of energy from renewable sources in overall Community energy consumption to be achieved by 2020, but also to a transformation of the whole energy sector and hence shifting the whole EU economy towards low emissions.

As regards a. and b., there is a high risk that Poland will neither have reached the national target nor followed the indicative trajectory due to the fact that sustainable renewable energy sources are not the only ones to be promoted. As regards c., the objective is only partly achievable because, as has been pointed out herein, the most im- portant provisions of the RES Directive have neither been adequately transposed nor implemented. 8. Procedures initiated by the European Commission In January 2011, the European Commission brought an action against Poland for failing to transpose the RES Directive and summoned Poland to take corrective measures.

20. See: the European Commission press release of 21 March 2012 at: http://europa.eu/rapid/press-release_IP-13-259_pl.htm 21. See OJ C 226, p. 8 of 3 August 2013: http://new.eur-lex.europa.eu/ legal-content/EN/TXT/;jsessionid=pnyvSTtQTVPrmpJLsDRD4ZJ KzLyHLD2JvKyPQvN0D6snL1d2L7dV!-80792881?uri=uriserv:OJ .C_.2013.226.01.0008.01.ENG 31 Directive on the promotion of the use of energy from renewable sources1 (Transport2)

Robert Rybski

32 1. The objectives of the RES directive

While the use of renewable energy sources in transport Deadline for the transposition is one of the basic objectives of the RES Directive3, of the RES Directive passed great emphasis is placed on the sustainable production of biofuels and bioliquids, too. In order to be covered by on 5.XI.2010. Untill 14.IX.2013 the national support scheme and counted towards the mandatory national target of 10 % for energy from renew- Directive has not been fully able sources in transport, biofuels and bioliquids must fulfil the sustainability criteria laid down by the Directive. The transposed. increasing worldwide demand for biofuels and bioliquids should not have the effect of encouraging the destruc- tion of biodiverse . Moreover, the mandatory 10% minimum target for the share of biofules in transport petrol house gas emission savings from the use of biofuels and and diesel consumption by 2020 is to be introduced in a bioliquids (Article 17, paragraph 2). The second one refers cost-effective and, above all, long-term way. to the prohibition of using raw materials obtained from land with high value as defined in Article 17(3). 2. Main provisions of the RES Directive Biofuels and bioliquids may not be made from made from relating to transport raw materials obtained from land with high carbon stock (wetlands, peatlands and other lands specified in para- 2.1. National target for the share of RES graphs (4) and (5) of Article 17. Agricultural raw materials in transport used for the production of biofuels and bioliquids must be obtained and cultivated in accordance with the minimum Pursuant to Article 3(4) of the RES Directive, each Mem- ber State is obliged to ensure that the share of energy from renewable sources in all forms of transport in 2020 is at least 10 % of the final consumption of energy in trans- port. The total amount of energy consumed in transport will be calculated on the basis of electricity, petrol, diesel and biofuels consumed in road and rail transport. It is worth pointing out the very positive approach to electric vehicles. Under subparagraph 2c of Article 3(4), for the calculation of the electricity from renewable energy sourc- es consumed by electric road vehicles, that consumption shall be considered to be 2.5 times the energy content of the input of electricity from renewable energy sources. 2.2. Calculating the final gross energy consumption

The distinction made between biofuels and bioliquids which may or may not be counted towards the national tar- get is of key importance. According to Article 5(1) subpara- graph 3 of the RES Directive, biofuels and bioliquids that do not fulfil the sustainability criteria set out in Article 17(2) to (6) shall not be taken into account for the calculation of the gross final consumption of energy from renewable sources in transport. Thus, without introducing a mecha- nism for verification, it is impossible to measure compli- ance with the requirements of the Directive concerning national targets. 2.3. Sustainability criteria (SC)

Pursuant to Article 17(1), all raw materials, irrespective of whether they were cultivated inside or outside the terri- tory of the Community, must fulfil the sustainability criteria set out in Article 17(2) to (6) of the RES Directive. The first criteria to be met is to progressively increase green-

1. Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ L 140/16. 5.6.2009. Hereinafter: “RES Directive”. 2. Due to the specific character of provisions concerning the use of energy from renewable sources in transport, for clarity purposes those provisions of the Di- rective relating to renewable energy sources in the energy sector have been discussed separately, also due to their regulatory autonomy in the national le- gal system. 3. The main objectives include: increased security of the energy supply due to reduced dependence on imported fossil fuels; decentralised energy production; local production of biofuels will contribute to increased security of the energy supply, shorter transport distances and reduced costs of maintaining a military presence to ensure the security of sea and land supply routes for and gas; reduced emissions of greenhouse gases. 33 requirements for good agricultural and environmental conditions (Article 17, paragraph 6). Under Article 18(1) points a-c, in order to show that the sustainability criteria for raw materials have been fulfilled economic operators must use a mass balance system and arrange for an ad- equate standard of independent auditing of the information submitted, and provide evidence that this has been done. The Directive provides for a single EU regulatory standard relating to SC - pursuant to Article 17(8), Member States may not refuse to take into account, on other sustainability grounds, biofuels and bioliquids obtained in compliance with this Article. 3. Entry into force

Pursuant to Article 28, the Directive entered into force on 25 June 2009. 4. National implementation

Pursuant to Article 27, Member States were obliged to bring into force the laws, regulations and administrative provisions necessary to comply with the directive by 5 December 2010. 5. Transposition

As at the day of completing this publication (14 Septem- ber 2013), the provisions of the RES Directive relating to transport have not been transposed into the Polish legal system4. The following solutions are missing at the statu- tory level: ● a mandatory national target for transport and a regula- tion ensuring the 10% share of RES in transport (Articles 3 and 4); ● the introduction of sustainability criteria for biofuels and bioliquids (Article 16); ● a method for verifying biofuel and bioliquid compliance with SC (Article 17); ● a method for calculating the greenhouse impact of biofu- els and bioliquids (Article 19); ● ensuring that information is given to the public on the availability and environmental benefits of all different renewable sources of energy for transport; ● definitions of: “biomass” [used for the production of bio- fuels] (as defined in Article 2, point (e) of the RES Direc- tive), “actual value” (Article 2, point (m)), “typical value” (Article 2, point (n)), “default value” (Article 2, point (o)).

It must be pointed out as well that Directive 2003/30/EC of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport, transposed into the Polish legal system by the act of 25 August 2006 on biocomponents and liquid biofuels (Journal of Laws of the Republic of Poland, No 169, item 1199, as amended), was repealed by Article 26(3) of the RES Directive with effect from 1 January 2012. Transport-related solutions provided for by the RES Directive only seem to be in line with Direc- tive 2003/30/EC. This results from the fact that, accord- ing to Article 5(1) subparagraph 3 of the RES Directive,

4. The implementation is yet to come with the draft amendment of the act on biocomponents and liquid biofuels prepared by the Ministry of Econo- my (version 0.5, draft amendment of 18 June 2013), available at: http://le- gislacja.rcl.gov.pl/docs//2/73350/73375/73376/dokument77103.pdf?lastU- pdateDay=14.08.13&lastUpdateHour=16%3A56&userLogged=false&date =czwartek%2C+15+sierpie%C5%84+2013). However, the draft had been an agenda item of the Standing Committee of the Council of Ministers until 15 September. 34 biofuels and bioliquids that do not fulfil the sustainability laid down in the first subparagraph of Article 22(1) of the criteria are not taken into account when calculating the RES Directive. The key elements of an appropriate report share of energy from renewable sources. The criteria were are specified in the second subparagraph of Article 22(1) established by the RES Directive so they have only been points (a), (b), (c), (i), (j), (k) of the Energy Law Act. They in force since 2009. have not been fully provided for by Article 20b and 20c of Some provisions of the RES Directive had already the Energy Law Act, however, so the transposition is not been transposed with an almost three-year delay by the complete in this respect either. so-called “Small Tri-Pack”, i.e. an act of 26 July 2013 amending the Energy Law Act and certain other acts 6. Implementation (Journal of Laws of the Republic of Poland, No 0, item 984), which entered into force on 11 September 2013. The lack of transposition of the RES Directive provi- Nevertheless, as far as renewable energy sources used sions relating to transport has resulted in a lack of their in transport are concerned the transposition remains implementation into the Polish legal system. It is doubt- incomplete. Pursuant to chapter 3a added to the Energy ful whether, despite the lack of transposition, Article 4 Law Act of 10 April 19975 (Journal of Laws of the Republic of the RES Directive, obliging Member States to adopt of Poland, No 0, item 1059, as amended), the minister in renewable energy action plans, has been implemented. charge of economic affairs is to draw up a “draft plan” that On 7 December 2010 the Council of Ministers adopted a will be adopted by a resolution of the Council of Ministers document called: “The National Renewable Energy Action and submitted to the European Commission. It is dubi- Plan”7, which was then sent to the European Commission ous, however, from the legislative point of view, to adapt on 9 December 2010 – however, pursuant to Article 4(2) the “national action plan”6 by passing an internally binding of the RES Directive, this should have taken place by 30 law, i.e. a resolution of the Council of Ministers, instead June 2010. of opting for a universally binding law, i.e. a regulation When assessing the content of the National Action of the Council of Ministers. Pursuant to Articles 20b and Plan relating to transport, what must be pointed out above 20c, also added to this chapter of the Energy Law Act, all is the incorrect approach to calculating the expected Poland is obliged to submit a report to the Commission consumption of electricity from renewable sources in on progress in the promotion and use of energy from transport pursuant to the second subparagraph of Article renewable sources, which is in line with the requirement 3(4), points (a) to (c).

5.  “National renewable energy action plan and the monitoring of the market for electricity, heat supplied or obtained from renewable energy sources, agricultural biogas, as well as the market for biocomponents, liquid fuels and liquid biofuels used in transport” 6. It is also pointed out in the opinion issued by The Bureau of Research on 19 December 2012, No BAS-WAPEiM-3365/12, on the compliance of re- newable energy sources draft act with the EU law, pp. 17-18. 7. See: press release of the Ministry of Economy at:http://www.mg.gov.pl/ Bezpieczenstwo+gospodarcze/Energetyka/Odnawialne+zrodla+energii/ Krajowy+plan+dzialan

35 For the calculation of the total amount of energy from Poland, it would not be inappropriate to establish a much renewable sources consumed in transport, electricity pro- more ambitious 2020 target than the 10% required by the duced from renewable sources and consumed in all forms Directive (pursuant to Article 3(4), the share of energy of transport should be taken into account8. It refers to both from renewable sources in all forms of transport in 2020 road and rail transport. One of the actions to be taken by must be “at least 10% of the final consumption of energy Member States to improve the share of RES in transport in transport”, which allows Member States to establish is the promotion of electric mobility. This could involve, higher national targets). among other things, increasing the availability of electrici- Providing for an increased use of electricity would ty-based public transport (trains, trams, trolleybuses). stimulate additional demand for a significant amount of Considering the fact that railways and municipal trans- electricity produced from renewable sources and thus, it port companies are among the largest electricity consum- would encourage the development of RES and, through ers in Poland then, if they started using vehicles powered economies of scale, facilitate the achievement of the na- by electricity produced only from renewable sources, it tional target for the share of RES in the . would significantly increase the share of RES in transport. It is also doubtful whether Article 22(1) –(4) of the The other aspect of electric mobility involves promoting RES Directive, obliging Member States to submit a report the use of road vehicles partly or fully powered by electric- on progress in the promotion and use of energy from ity in local public transport and by individuals. renewable sources, has been implemented. Pursuant to The National Action Plan does not, however, pro- the first sentence of Article 22(1), the report was to be vide for an increased use of electricity from renewable submitted by 31 December 2011, and every two years sources in transport, it is expected that in 2020 99.8% of thereafter. A document prepared by the Ministry of the energy from renewable sources will be covered by biofu- Economy called “A report on progress in the promotion els. While focusing on biofuels may encourage regional and use of energy from renewable sources in Poland in development and boost agricultural production in this 2009-2010” was passed on 28 February 20129, over two area, considering the significant agricultural potential of months after the deadline.

8. Another example, apart from electric vehicles, can be the project undertaken by Lublin University of Technology and Municipal Transport Company in Lublin involving the installation of photovoltaic panels on the buses, which contributes to reduced fuel consumption. See: http://gramwzielone.pl/energia-slonecz- na/7509/panele-fotowoltaiczne-na-dachach-autobusow-miejskich-w-Lublinie 9. See: press release of the Ministry of Economy at: http://www.mg.gov.pl/node/15688. 36 It must be pointed out as well that the “Report…” Due to the lack of transposition of the relevant provi- contains a fundamental irregularity. According to the sions of the RES Directive, Poland fails to ensure that the information presented in the report, the overall share of biomass used in transport fulfils the sustainability criteria energy from renewable sources in transport for the year as no legal framework has been established to ensure the 2010 amounted to 5.9%, which was calculated on the achievement of this objective. basis of Article 5 of the RES Directive10. However, since As part of the implementation of Directive 2003/30/EC the provisions of the RES Directive referring to SC have a national mechanism was established thanks to which not been transposed, it means that energy produced from the share of energy from renewable sources in transport raw materials whose cultivation fails to fulfil sustainability amounted to 5.5% in 2010. However, the third subpara- criteria cannot be accounted for. graph of Article 5(1) of the RES Directive clearly states Consequently, the 2010 figures presented in the report that biofuels and bioliquids that do not fulfil the sustainabil- are incorrect because no national mechanisms have been ity criteria are not taken into account in the calculation of established for the verification of compliance with the sus- the share of energy from renewable sources in transport. tainability criteria for the raw materials from which biofuels Thus, until the provisions of the RES Directive relating to and bioliquids are made. Thus, from a formal point of view, transport are adequately transposed and implemented into as far as biofuels are concerned, the share of energy from the Polish legal system, it will not be possible to determine renewable sources in transport amounted to 0%. the extent to which currently biofuels used fulfil the SC, and consequently, to calculate the share of energy from 7. Achievement of the Directive’s renewable sources in transport. Thus, given the current objectives legal status, formally speaking, due to the lack of a trans- position of the RES Directive, the share of energy from As for the use of renewable energy sources in transport, renewable sources in transport is close to zero. the achievement of the Directive’s objectives basically refers to two elements: a. ensuring that the biomass used fulfils sustainability criteria; b. achieving the mandatory national target of 10 % for energy from renewable sources in transport.

10. See: Table 1: “The sectoral (electricity, heating and cooling, and transport) and overall shares of energy from renewable sources” and footnote 4 in “Report on progress…”, p. 4

37 The CCS Directive Bolesław Matuszewski

38 1. Full name of the Directive Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/ EEC, European Parliament and Council Directives 2000/60/EC, Polish regulations on CCS 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006 (OJ L 140, 5.06.2009, p. limit the possibility of under- 114) (hereinafter referred to as The CCS Directive or The Directive). ground storage CO2 only 2. The purpose of the Directive to demonstration projects.

This Directive establishes a legal framework for the environmentally safe geological storage of carbon dioxide

(CO2) to contribute to the fight against climate change. The purpose of environmentally safe geological storage Member States must ensure that the operator: of CO2 is the permanent containment of this gas in a way a) accepts and injects CO2 streams only if an analysis that prevents and, where this is not feasible, eliminates of the composition of the streams, including corrosive as far as possible the negative effects and any risk to the substances, and a risk assessment have been car- environment and human health. ried out, and if the risk assessment has shown that the contamination levels are in line with the conditions set 3. Main provisions of the Directive out in the Directive; b) keeps a register of the quantities and of the

Pursuant to Article 4 of the Directive, Member States CO2 streams delivered and injected, including the com- which intend to allow geological storage of CO2 in their position of those streams. territory have to undertake an assessment of the storage capacity available in parts or in the whole of their terri- Article 13 obliges Member States to ensure that the opera- tory, including by allowing exploration. The suitability of a tor carries out the monitoring of the injection facilities, the geological formation for use as a storage site should be storage complex (including where possible the CO2 plume) determined through a characterisation and assessment of and where appropriate the surrounding environment for the potential storage complex and surrounding area pursu- the purpose of: ant to the criteria specified in Annex I. a) comparison between the actual and modelled behaviour

Article 5 states that where Member States determine of CO2 and in the storage site; that exploration is required to generate the information b) detecting significant irregularities; necessary for selection of storage sites pursuant to Article c) detecting significant adverse effects for the surrounding 4, they have to ensure that no such exploration takes environment, including in particular on , place without an exploration permit. The procedures for for human populations or for users of the surrounding the granting of exploration permits have to be open to all . entities possessing the necessary capacities. The permits are granted or refused on the basis of Monitoring should be based on a monitoring plan designed objective, published and non-discriminatory criteria. The by the operator pursuant to the requirements laid down in permits are limited in time (its duration cannot exceed the Annex II to the Directive. period necessary to carry out the exploration for which it The monitoring obligation and other obligations set out was granted) and space (they are granted for a limited in the Directive are connected to the obligation to report, volume area). The holder of an exploration permit has a which is imposed on the operators in Article 14. Reports privileged position with regard to exploration as it has the have to include among other things: (i) all results of the sole right to explore the potential CO2 storage complex. monitoring, (ii) the quantities and properties of the CO2 Member States have to ensure that no storage site is streams delivered and injected in the reporting period and operated without a storage permit, that there is only one (iii) of the putting in place and maintenance of the operator for each storage site, and that no conflicting uses financial security. are permitted on the site. Pursuant to Article 15 of the Directive, Member States Articles 7-9 of the Directive specify the necessary have to ensure that the competent authorities organise a elements of an application for a CO2 storage permit and system of routine and non-routine inspections of all stor- conditions that have to be fulfilled to obtain such a permit. age complexes within the scope of the CCS Directive for Article 11 defines minimum requirements for its content as the purposes of checking and promoting compliance with well as detailed conditions for changes to, and the review, the requirements of the Directive as well as monitoring the update and withdrawal of storage permits. effects on the environment and on human health.

Pursuant to Article 12, a CO2 stream has to consist Article 16 states that in the event of leakages or signifi- overwhelmingly of carbon dioxide. To this end, no waste cant irregularities, Members States are obliged to ensure or other matter may be added for the purpose of disposing that the operator immediately notifies the competent of that waste or other matter. However, a CO2 stream may authority and takes the necessary corrective measures, contain incidental associated substances from the source, including measures related to the protection of human capture or injection process and trace substances added health. to assist in monitoring and verifying CO2 migration. Con- In Article 17 the Directive defines reasons for closing centrations of all incidental and added substances have to storage sites as well as the post-closure obligations of be below levels provided for in this article. operators and Member States. Article 18 regulates the 39 storage, pursuant to the relevant Community provisions. The Directive introduces a number of amendments to the already binding EU provisions, in particular to the Annexes I and II of the Directive 85/337/EEC2 and the Directive 2001/80/EC3 (hereinafter referred to as the LCP Directive). It introduces Article 9a to the LCP Directive, which obliges Member States to ensure that operators of all combustion plants with a rated electrical output of 300 megawatts or more for which the original construc- tion licence or, in the absence of such a procedure, the original operating licence is granted after the entry into force of this Directive have assessed whether the following conditions are met: (i) suitable storage sites are available, (ii) transport facilities are technically and economically feasible, (iii) it is technically and economically feasible to

retrofit for CO2 capture. If these conditions are met, the competent authority has to ensure that suitable space on the installation site for the equipment necessary to capture and compress

CO2 is set aside. The competent authority shall determine whether the conditions are met on the basis of the above- mentioned assessment and other available information, particularly concerning the protection of the environment and human health. 4. When the Directive came into force

The Directive came into force on 25 June 2009. 5. Deadline for implementing the Direc- transfer of legal obligations in the area of monitoring and tive in the Polish legal system corrective measures that are set out in the Directive. Article 19 obliges Member States to ensure that a poten- tial operator provides, within its application for a storage The Member States were obliged to bring into force the permit, proof that adequate measures can be established, laws, regulations and administrative provisions necessary by way of financial security or any other equivalent. This to comply with the Directive by 25 June 2011. is in order to ensure that all obligations arising under the permit issued pursuant to this Directive are fulfilled, includ- 6. Transposition ing closure and post-closure requirements, as well as any obligations arising from the inclusion of the storage site To date (i.e. 14 September 2013) the Directive has not under Directive 2003/87/EC1. been transposed into Polish legislation. Moreover, as, after the transfer of responsibilities, state On 30 August 2013 the Polish Parliament adopted the institutions may be obliged to cover costs resulting from Act amending the act on geological and law and

CO2 storage, e.g. monitoring costs, Article 20 of the Direc- other acts with draft regulations (hereinafter referred to as tive imposes an obligation on Member States to ensure The Act). The purpose of this document is to transpose the that the operator makes a financial contribution available CCS Directive into Polish legislation4. to the competent authority before the transfer of responsi- The following comments can be made on the basis of bility under a procedure specified by the Member State in the adopted, but not promulgated, Act.

question. This is to ensure that that the CO2 is completely As the justification to the Act shows, the Council of and permanently contained in geological storage sites Ministers has decided to restrict the scope of the regula-

after the transfer of responsibility. tions on underground CO2 storage in Poland so that they Pursuant to Article 21, Member States have to take apply only to demonstration projects5, which is reflected the necessary measures to ensure that potential users are in Article 1 of the Act. According to the opinion of the able to obtain access to transport networks and to storage European Commission of 28 February 20136, this restric- sites for the purposes of geological storage of the pro- tion remains in accordance with the provisions of the

duced and captured CO2, in accordance with the principles Directive. Nevertheless, the authors of this report believe set out in the Directive. that, considering all the measures adopted in the Act, the The Directive obliges Member States to provide the wording of the provisions of the Directive seems not to

public with environmental information on geological CO2 permit such a restriction.

1. Now: Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and pri- vate projects on the environment (OJ L 26, 28.01.2012, p. 1). 2. Now: Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and pri- vate projects on the environment (OJ L 26, 28.01.2012, p. 1). 3. Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants (OJ L 309, 27.11. 2001, p. 1, Official Journal of the European Union, Polish special edition, chapter 15, volume 6, p. 299). 4. http://orka2.sejm.gov.pl/StenoInter7.nsf/0/1CF5E01B7D6C9274C1257BD700671F4A/%24File/47_d_ksiazka.pdf 5. http://www.sejm.gov.pl/sejm7.nsf/druk.xsp?documentId=1AF3069890614DF7C1257B95003CAB49 6. http://www.mos.gov.pl/g2/big/2013_03/36a4606daa2003104f39ad0ce9af4836.pdf 40 The Directive enables Members States not to allow for a decision, not later than two years from when the Act any storage in parts or in the whole of their territory (Article comes into force, that will oblige operators of these instal- 4 (1) of the Directive). However, neither the purpose of lations to prepare and submit an environmental review. the Directive nor its provisions justify the restriction of The latter is referred to in the Act on Environmental the scope of the Act only to demonstration projects, with Protection Law and should be supplemented with an as- reference to CO2 storage itself as well as the selection and sessment of the installation’s readiness to capture CO2. analysis of geological structures suitable for CO2 storage. If the results of the assessment are positive, the operator Due to this restriction the Act prevents the identification will be obliged to specify a site or part of one where the and analysis of geological structures for CO2 storage out- CO2 capture equipment will be installed. This measure side demonstration projects (i.e. for commercial projects is significant for ensuring that, despite the lack of proper that could apply the CCS technology), which runs counter transposition of the Directive into national legislation, the to the very idea behind the CCS Directive. As a result, it EU provisions that came into force on 25 June 2009 and becomes impossible to conduct any analyses of potential were supposed to be transposed by 25 June 2011 are

CO2 storage sites. respected. The Act also introduces a number of amendments to It needs to be noted that these measures may prove binding regulations with the purpose of fulfilling Poland’s insufficient to ensure that sites for the installation of CO2 obligations imposed in the Directive. The most important capture equipment are designated in existing facilities. It is ones include: possible that most of the CO2 capture assessments will be ● the definitions included in the Directive; negative as the available sites are already used for other ● detailed solutions regarding: purposes. This may mean that the Directive’s objectives ● the granting of concessions on the selection and will not be fulfilled for already operating installations.

analysis of storage complexes for underground CO2 storage and CO2 storage, 7. Implementation ● monitoring and control, ● the post-closure obligations of investors, As suitable provisions are lacking in national legislation, ● financial security ensuring that the conditions speci- it is difficult to talk about the proper implementation of the

fied in the concession for underground CO2 storage Directive. There are few cases of attempts to apply CCS are fulfilled, technology or to analyse its possible application in Poland.

● CO2 transmission, including access to the CO2 trans- Three investments can serve as an example of the appli- port network, cation of CCS technology in Poland: the construction of a CCS ● providing to the public environmental information on installation in Bełchatów Power Plant, the extension of

geological CO2 storage. Power Plant and the construction of Północ Power Plant.

If these provisions are promulgated as they stand in the Act, they will properly transpose the Directive. The measures of the Act that refer to the obligation to con- duct the assessment of CCS readiness should be evalu- ated positively. These provisions implement the obligation specified in Article 9a of the LCP Directive and introduced in Article 33 of the Directive. The Act provides for relevant changes in the provisions of the Act on 3 October 2008 on access to information on the environment and its protection, public participa- tion in environmental matters and environmental impact assessments (Dz. U. No 199, item 1227, as amended) (hereinafter referred to as The EIA Act). The purpose of these provisions is to ensure that an environmental impact assessment is conducted for combustion plants that generate electricity, with a rated electrical output of 300 megawatts or more. This also means that certain information has to be included in the report prepared by the investor in order to verify the availability of underground CO2 storage sites as well as the technical and financial viability of the CO2 transport network. The obligation to ensure that suit- able space for the equipment necessary to capture and compress CO2 is set aside on the installation site will be introduced by means of amendments to the regulations to the Act of 7 July 1994 on (uniform text, Dz. U. of 2010, No 243, item 1623, as amended). As far as CCS readiness is concerned, the Act pro- vides for special measures with regard to combustion plants that obtain their construction permits after 25 June 2009 but before the Act comes into force and combustion plants that obtain their decisions on environmental require- ments, referred to in Article 71 (1) of the EIA Act, before the Act comes into force. Pursuant to the Act, for such installations a relevant Marshall of Voivodship has to issue 41 a) Bełchatów Power Plant The project implemented by PGE GiEK S.A. obtained The project involving the construction of a demonstration significant EU support, including a grant of EUR 180 mil- CCS installation in Bełchatów was initiated in 2009 by lion under the European Energy Programme for Recovery. the company PGE Górnictwo i Energetyka Konwencjon- Moreover, in July 2012 the European Commission pub- alna S.A. (PGE GiEK S.A.), with its registered office in lished a working document stating that Bełchatów’s CCS Bełchatów. The installation was supposed to be integrated project was classified as second in a ranking of projects with an energy unit of 858 MW, which opened for opera- that have applied for financing under the NER300 Pro- tion in September 2011 in PGE GiEK S.A. – Elektrownia gramme.8,9 Bełchatów Division. It was planned that it would include Nevertheless, this significant financial and technical three key components that made up the full value chain in support was insufficient to finalise the investment. On 20 the validation process of the CCS technology. February 2013, the company PGE Górnictwo i Energe- A Carbon Capture Plant and its integration with the tyka Konwencjonalna S.A. abandoned the CCS project in

858 MW energy unit, with a capacity of >250 MW and CO2 Bełchatów. “The decision to give up the construction of a capture efficiency of >85%, based on the technology of the demonstration CCS installation stems from problems with advanced amine process. The installation was supposed closing the project’s financial structure as well as signifi-

to capture around 1.8 million tons of CO2 annually. This cant legal and formal barriers that such investments face. task also involved the adjustment of the 858 MW unit to As far as the latter is concerned, the main obstacles capture-ready status. include the lack of an implementation of the CCS Direc- tive into Polish legislation and the lack of measures on

● CO2 transport: a pipeline and related infrastructure for CO2 transmission. The cost of the project was estimated

transporting compressed CO2 to the place of storage; at EUR 600 million. As full financing was not secured, the 10 ● CO2 storage: the underground injection of compressed project was unprofitable”.

CO2 (into deep saline formations) for the purpose of its permanent storage.7 b) Północ Power Plant This project involves the construction of a new coal power plant on a greenfield site; its capacity would equal 2 x 1000 MW. Under the procedure for issuing a construction permit, during which the body conducting the procedure repeated the environmental impact assessment for the project, the investor was not obliged to verify the plant’s CCS-readi- ness, i.e. to check whether transport installations as well

as CO2 retrofit were technically and financially feasible. The investor, i.e. Elektrownia Północ sp. z o.o., with its registered seat in Warsaw, stated that it had assessed the project’s CCS-readiness on its own initiative. The

company declared that CO2 capture was feasible for the investment. Thus Elektrownia Północ sp. z o.o. ensured that the project would be adjusted to the requirements that are going to be introduced to Polish legislation as a result of the transposition of the Directive. According to Foundation ClientEarth Poland, the bodies that conducted the aforementioned procedure did not perform proper analysis of the data provided by the investor with regard to CCS-readiness. As a result, they did not impose on the investor the obligations connected with the analysis required by Article 9a of the LCP Direc- tive, introduced by the CCS Directive. This behaviour of the public administration body in question results from the fact that the CCS Directive has not been transposed into national legislation. Public administration bodies as well as administrative courts do not recognise the direct application of the Directive. Therefore, they argue that public bodies are not entitled to impose on investors the obligations that result from Article 9a of the LCP Directive without relevant measures in Polish legislation. Due to the investor’s initiative, the consequences of such a stance are not that visible for Północ Power Plant. They are much more evident in the case of Opole Power Plant.

7. http://www.pgegiek.pl/index.php/ccs/instalacja-demonstracyjna-ccs/ 8. Ibid 9. The fate of other demonstration projects to be implemented in Poland was similar, e.g. CCS demonstration project in the Kędzierzyn-Koźle Po- wer Plant. 10. Information provided by PGE GiEK S.A. on 6 June 2013, http://www. pgegiek.pl/ 42 c) Opole Power Plant In all the aforementioned judgements the courts The extension of Opole Power Plant includes among other stated that Poland has violated EU legislation by failing things the construction of two new electricity generation to transpose the CCS Directive, which should have units with a gross capacity of around 900 MW each. been transposed by mid 2011. In their judgement of In September 2011 Foundation ClientEarth Poland ap- 2 October 2012 and 19 February 2013, the Supreme pealed against the decision on the environmental require- Administrative Court and the Voivodship Administrative ments for the consent to implement the project. One of Court in Warsaw stated that the only reason why the the reasons was the fact that the bodies conducting the argument that Article 9a of the LCP Directive had been procedure in question did not oblige the investor to con- violated could not be taken into account was the lack of duct an assessment of the investment’s CCS-readiness, relevant provisions on the assessment of CCS-readi- as referred to in Article 9a of the LCP Directive. ness in Polish legislation. With its judgement of 12 January 2012, the Voivodship Administrative Court in Warsaw (case number: IV SA/Wa 8. The fulfilment of the Directive’s 1757/11) repealed the aforementioned decision. In the objective justification the court stated that a pro-EU interpretation of relevant national provisions should have been applied in order to make Article 9a of the LPC Directive effective. Due to a lack of the Directive’s transposition and its improp- This means that the investor should have been obliged to er implementation, its objective was not fulfilled in Poland. conduct an assessment of the project’s CCS-readiness. On 2 October 2012 (case number: II OSK 1246/12) the 9. Infringement procedures initiated Supreme Administrative Court repealed the aforementioned by the European Commission judgement of the Voivodship Administrative Court in Warsaw and remanded the case for re-examination. In its justification, the Supreme Administrative Court stated that the pro-EU On 18 July 2011 the European Commission initiated a interpretation of relevant national legislation, as well as the legal procedure against Poland due to the lack of trans- direct application of Article 9a of the LCP Directive were position of the CCS Directive into Polish legislation (case impossible. When re-examining the case, the Voivodship number: 2011/0909). Administrative Court was obliged to agree with the Supreme On 8 May 2013 Foundation ClientEarth Poland filed a Administrative Court, pursuant to Article 190 of the Act of 30 complaint to the European Commission, accusing Poland August 2002 on the Law of administrative court proceedings of violating EU law due to the improper implementation (uniform text, Dz. U. of 2012, item 270, as amended). In its of the Directive in the context of Opole Power Plant. The judgement of 19 February 2013 (case number: IV SA/Wa complaint is being analysed by the relevant units of the 2652/12) the Voivodship Administrative Court dismissed the European Commission. appeal filed by Foundation ClientEarth Poland. 43 Directive on Energy End-use Efficiency and Energy Services1 Agata Bator

44 1. Objectives of the Directive The general objective of Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on Energy End-use Efficiency and Energy Services and Deadline for transposition repealing Council Directive 93/76/EEC (OJ EU L114 of 27 April 2006, p. 64, hereinafter referred to as “Directive of the Directive passed 2006/32/EC”) is to improve energy end-use efficiency, which should contribute to improved security of energy on 17.V.2008. Lack supply (incl. making the European Union independent of energy import) as well as to the reduction of primary of full transposition. energy consumption, to the mitigation of CO2 and other greenhouse gas emissions and thereby to the prevention of climate change (recital (1), (2) and (3) of the preamble to Directive 2006/32/EC). the Member States must aim to achieve it and their failure Directive 2006/32/EC assumes energy savings of 9% to do so will require submitting reasons.2 in relation to each Member State (recital (12) of Direc- Furthermore, each Member State should establish an tive 2006/32/EC). As has been emphasised in Direc- intermediate indicative energy savings target for the third tive 2006/32/EC, the assumed improvement in energy year of application of Directive 2006/32/EC (i.e. for 2010) efficiency should be cost-effective (Article 1 of Directive (Article 4(2) of Directive 2006/32/EC). Member States 2006/32/EC) and oriented to the use of cost-effective should also ensure that the public sector fulfils an exem- technological innovations (recital (28) of the preamble to plary role in energy end-use efficiency. To this end, Mem- Directive 2006/32/EC). ber States should oblige public sector entities to adopt at The above general objective should be achieved par- least two energy efficiency improvement measures from ticularly through the development of energy services and the list set out in Annex VI to Directive 2006/32/EC (Article managed demand for energy (recital (1), (7), (9) and (20) 5 of Directive 2006/32/EC). of the preamble to Directive 2006/32/EC). Chapter III of Directive 2006/32/EC contains more The recital (7) of the preamble to Directive 2006/32/EC detailed regulations on the promotion of energy end-use also stresses the key role of the public sector in striving to efficiency and energy services. The Member States should improve energy efficiency. Article 1 of Directive 2006/32/ choose one or more of the requirements mentioned in EC stipulates that its purpose is to enhance the cost-effec- Directive 2006/32/EC to be complied with by the compa- tive improvement of energy end-use efficiency in Member States by providing the necessary indicative targets on energy efficiency as well as mechanisms, incentives and institutional, financial and legal frameworks to remove existing market barriers and imperfections that impede the efficient end-use of energy, and by creating conditions for the development and promotion of a market for energy services and for the delivery of other energy efficiency improvement measures to final consumers (Article 1 of Directive 2006/32/EC). 2. Basic provisions of Directive 2006/32/EC Chapter I of Directive 2006/32/EC determines the purpose and scope of its application and contains definitions of the most important terms. The Directive 2006/32/EC applies to providers of energy efficiency improvement measures, energy distributors, distribution system operators and retail energy sales companies. Chapter II of Directive 2006/32/ EC determines the general indicative target and empha- sises the exemplary role of the public sector. Pursuant to Article 4 of Directive 2006/32/EC, Mem- ber States adopt and aim to achieve an overall national indicative energy savings target of 9% for the ninth year of application of the Directive 2006/32/EC (i.e. for 2016), to be reached by way of energy services and other energy efficiency improvement measures (Article 4(1) of Directive 2006/32/EC). The fact that it is an indicative target means that it is not binding under pain of specific sanctions but

1. Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on Energy End-use Efficiency and Energy Services and re- pealing Council Directive 93/76/EEC (OJ EU L114 of 27 April 2006, p. 64). 2. A. Damasiewicz, Efektywność energetyczna. Komentarz, LEX/el. 2012 (commentary available only in an electronic form in the Legal Informa- tion System LEX). 45 nies covered thereby. The requirements are as follows: disproportionately impede or restrict the use of financial (i) to ensure and promote competitively priced energy instruments for energy savings in the market for energy services to their final customers, (ii) to ensure the avail- services or other energy efficiency improvement measures ability to their final customers and to promote competitively (Article 9(1) of Directive 2006/32/EC), and ensure the re- priced energy audits, (iii) to contribute to the funds or moval of those incentives in transmission and distribution mechanisms of funding energy efficiency improvement tariffs that unnecessarily increase the volume of distributed measures. Alternatively, Member States should ensure or transmitted energy (Article 10 of Directive 2006/32/EC). the introduction of voluntary agreements or other market- Member States must also ensure the availability of oriented schemes, such as white certificates, with an effect high-quality energy audit schemes to all final consumers equivalent to one or more of the above-mentioned require- (Article 12(1) of Directive 2006/32/EC) and to provide final ments (Article 6(2) of Directive 2006/32/EC). Member customers for electricity, gas, heating, cooling and domes- States should also ensure the conditions necessary for the tic hot water with competitively priced individual meters, in development of a market for energy services, energy au- so far as it is technically possible, financially reasonable dits and energy efficiency improvement measures (Article and proportionate in relation to the potential energy sav- 6(3) of Directive 2006/32/EC). ings (Article 13(1) of Directive 2006/32/EC). Moreover, Member States should ensure, where they Furthermore, Member States must ensure that billing deem it necessary, the availability of appropriate qualifica- performed by energy distributors, distribution system tion, accreditation or certification schemes for providers of operators and retail energy sales companies is based on energy services, energy audits and energy efficiency im- actual energy consumption, and is presented in clear and provement measures (Article 8 of Directive 2006/32/EC), understandable terms (Article 13(2) of Directive 2006/32/ repeal or amend national legislation and regulations, other EC). Additionally, Member States must ensure that the than those of a clearly fiscal nature, that unnecessarily or following information detailed in Directive 2006/32/EC is

1. Tak: Agnieszka Damasiewicz, Efektywność energetyczna. Komentarz, LEX/el. 2012 (komentarz dostępny wyłącznie w formie elektronicznej w Systemie Informacji Prawnej LEX).

46 made available to final customers with their bills, con- tracts or receipts to enable the proper assessment of their energy consumption: current actual prices and the actual consumption of energy as well as comparisons of the final customer’s current energy consumption with consumption for the same period in the previous year (Article 13(3) of Directive 2006/32/EC). 3. Entry into force of Directive 2006/32/EC

The Directive 2006/32/EC entered into force on 17 May 2006, i.e. on the twentieth day following its publication in the Official Journal of the European Union (Article 19 of Directive 2006/32). 4. Deadline for implementation in national law

Pursuant to Article 18(1) of Directive 2006/32/EC, the Member States were obliged to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 17 May 2008, with the exception of the provisions of Article 14(1), (2) and (4) (provisions on informing the Commission about the energy savings calculation methods used by the Member States on the effective date of the Direc- tive 2006/32/EC, on drawing up and delivering Energy Efficiency Action Plans to the Commission as well as on assessing these plans by the Commission) for which the transposition date was 17 May 2006. 5. Transposition into national law

In order to transpose Directive 2006/32/EC into Polish law, The Energy Efficiency Act3 was passed on 15 April 2011 (“Energy Efficiency Act”). This Act fails to cor- rectly transpose all the definitions contained in Directive 2006/32/EC into Polish law. First, it should be noted that the Energy Efficiency Act contains no definition of “energy service,” which in Directive 2006/32/EC is defined as a physical benefit, or good derived from a combination of energy with energy efficient technology or with actions, which may include the operations, maintenance and con- trol necessary to deliver the service, which is delivered on the basis of a contract and in normal circumstances has proven to lead to verifiable and measurable or estimable energy efficiency improvement or primary energy savings (Article 3(e) of Directive 2006/32/EC). The lack of this definition in the Energy Efficiency Act results from the fact that this Act does not directly refer Moreover, the Directive emphasises that the Council to the issue of energy services, which should be consid- Conclusions of 5 December 2000 list the promotion of ered a serious violation of the transposition of Directive energy services through the development of a Community 2006/32/EC into Polish law. As Agnieszka Damasie- strategy as a priority area for action to improve energy wicz rightly notices, “the Directive, starting from its title efficiency (cf. recital (19) of the preamble to the Directive) (“Directive on Energy End-use Efficiency and Energy and that energy distributors, distribution system operators Services”) stresses the importance of the development of and retail energy sales companies can improve energy energy services for the achievement of increased energy efficiency in the Community if the energy services they efficiency. The preamble indicates that energy end-use market include efficient end-use (cf. recital (20) of the efficiency improvement may be achieved by increasing preamble to the Directive). the availability of energy services, increasing the demand As is indicated in the main part of the Directive, its pur- for such services “and other energy efficiency improve- pose is to enhance the cost-effective improvement of en- ment measures" (cf. recital (17) of the preamble to the ergy end-use efficiency in the Member States by creating Directive). conditions for the development and promotion of a market

3. Dz. U. of 2011, N° 94, item 551, as amended. 47 for energy services and for comfort, domestic hot water, the delivery of other en- refrigeration, product manu- ergy efficiency improvement facturing, illumination and measures to final consumers Introduction to the national motive power6, as well as (cf. Article 1 of the Directive) rugulations definitions to the low level of develop- and Member States should ment of energy services in aim to achieve an overall of energy services company Poland7, legislative actions in national indicative energy this area seem necessary to savings target by way of en- and energy service create legal frameworks for a ergy services and other en- market for energy services. ergy efficiency improvement would help to stimulate Such legal frame- measures (cf. Article 4 of the works can be created e.g. Directive).”4 A. Damasiewicz the market. by introducing a definition of points out that by using the energy service company and expression “energy services the structure of a contract or other energy efficiency for energy services into the improvement measures" the national regulations, which Directive gives priority to en- would help to stimulate the ergy services and she rightly market at least by introduc- emphasises that this priority ing these terms into the has not been taken into account in the Energy Efficiency consciousness of potential service providers and potential Act5. clients. Unfortunately, the Energy Efficiency Act fails to The Energy Efficiency Act lacks regulations on energy create such legal frameworks. services and, consequently, it lacks such definitions Furthermore, a slightly narrowing transposition of the defi- provided for in Directive 2006/32/EC as “energy service nition of an energy audit should be noted. According to Direc- company (ESCO),” “energy performance contracting” and tive 2006/32/EC, an energy audit is a systematic procedure to “third-party financing” (Article 3(i), (j) and (k) of Direc- obtain adequate knowledge of the existing energy consump- tive 2006/32/EC). Due to the key role of energy services, tion profile of a building or group of buildings, of an industrial including the need, mentioned in Directive 2006/32/EC, to operation or installation or of a private or public service, identify transform the market that treats energy as a product into a and quantify cost-effective energy savings opportunities, and market that offers such energy services as indoor thermal report the findings (Article 3(l) of Directive 2006/32/EC).

4. A. Damasiewicz, op. cit. 5. Ibid. 6. cf. recital (20) and (21) of the preamble to Directive 2006/32/EC. 7. As it results from the draft report prepared by the Institute of Environmental Economics, the ESCO market has considerable potential in Poland but is still on the threshold of the development phase and the number of actors in this market is small. The market has been developing for a few years but taking into account the circumstances that create potentially favourable conditions for development, such as increasing costs of energy or the European Union policy oriented to the improvement of energy efficiency, this growth should proceed much faster, cf. Rynek ESCO w Polsce. Stan obecny i perspektywy rozwoju, draft report, Institute of Environmental Economics, 2012, http://www.iee.org.pl/?a=text&b=32, p. 7.

48 Meanwhile, the Energy Efficiency Act introduces a definition of “energy efficiency audit” which means a study containing an energy consumption analysis, determining the technical condition of a facility, technical equipment or installation and containing a list of undertakings that aim to improve energy efficiency of these facilities, equipment or installation, and an assessment of their cost-effectiveness and possible energy savings (Article 3(7) of the Energy Ef- ficiency Act). The Polish definition ignores the audit’s sys- tematic character and does not allow for it to be conducted in relation to an operation.8 Article 4(1) of the Energy Efficiency Act is a transposi- tion of Article 4(1) of Directive 2006/32/EC that requires the Member States to adopt and aim to achieve an overall national indicative energy savings target of 9% for the ninth year of application of the Directive. Article 4(1) of the Energy Efficiency Act establishes a national energy sav- ings target that assumes obtaining by 2016 final energy savings of at least 9% of the average national consump- tion of this energy per year, whereas the averaging encompasses the years 2001-2005. However, the Energy Efficiency Act does not contain a correct transposition of Article 4(2) of Directive 2006/32/ EC according to which Member States must determine an intermediate indicative energy savings target for the third year of application of Directive 2006/32/EC (i.e. for 2010). Such a situation might have resulted from a considerable delay in transposing Directive 2006/32/EC into Polish law (the Energy Efficiency Act was passed in 2011). When passing the Energy Efficiency Act, the transposition of this provision of Directive 2006/32/EC was already irrelevant. Article 5 of Directive 2006/32/EC concerning the exemplary role of the public sector in energy efficiency has been transposed by Articles 10 and 11 of the Energy Efficiency Act. Pursuant to Article 10(1) and (2) of the Energy Efficiency Act, a public sector entity should use, while fulfilling its tasks, at least two of the following energy efficiency improvement measures: (i) energy performance contracting; (ii) the purchase of new, energy-efficient and cost-effective equipment, installations or vehicles; (iii) the replacement of operated equipment, installations or vehicles with equipment, installations or vehicles listed in point (ii) or their modernisation; (iv) the purchase or rental of energy-efficient buildings or parts thereof, or the conver- sion or renovation of buildings used; (v) the preparation of an energy audit within the meaning of the Act of 21 November 2008 on support for thermo-modernisation and renovations of buildings used with a floor area of over 500 m2 that a public sector entity owns or manages. Moreover, pursuant to Article 10(3) of the Energy Ef- ficiency Act, a public sector entity should provide informa- tion about the energy efficiency improvement measures used on its website or in another manner customarily accepted in a given locality. The quoted provision of the Energy Efficiency Act is a relatively faithful repetition of an appropriate provision of Directive 2006/32/EC, it should however be noted that in terms of directives’ correct implementation, the repetition of directive expressions is not always a sufficient form of its transposition into the national law. The principal implementation rule consists in such a selection of implementation forms and measures that would ensure their full effectiveness.9 The effective- ness of Article 10(1-3) of the Energy Efficiency Act is doubtful considering the lack of support for the obligation

8. A. Damasiewicz, op. cit. 9. B. Kurcz, Dyrektywy Wspólnoty Europejskiej i ich implementacja do pra- wa krajowego, Zakamycze 2004, p. 150. 49 to use energy efficiency improvement measures by public improvement measures, (ii) refrain from any activities that sector entities by means of time, qualitative or quantitative might impede the demand for and delivery of energy serv- criteria (in view of the amount of saved energy).10 and other energy efficiency improvement measures, Taking into account the current version of Article 10 or hinder the development of markets for energy services of the Energy Efficiency Act and the fact that, in princi- and other energy efficiency improvement measures. The ple, the provisions of this Act will remain in force until 31 above provisions of Directive 2006/32/EC have not been December 2016, a conclusion can be drawn that to meet transposed into the Polish law. the obligation by public sector entities it is enough to use Article 6(2) of Directive 2006/32/EC has been trans- only two chosen measures in a period of more than 5 posed into Polish law by the introduction of a so-called years, even if these measures are not very ambitious and system of white certificates, known in the Polish regula- of short-term application as e.g. a one-time replacement tions as energy efficiency certificates (hereinafter referred of bulbs (as it is not required that energy savings solutions to as “white certificates”), by the Energy Efficiency Act11. have a definite period of application or generate a specific As a complement to legislative provisions and on their amount of saved energy). basis, suitable executive acts have also been passed con- Furthermore, despite the fact that the Energy Efficien- cerning e.g. the conditions of tender procedures for select- cy Act basically repeats appropriate fragments of Article ing energy efficiency improvement undertakings for which 5 of Directive 2006/32/EC in relation to the role of the white certificates are granted and the quantity and method public sector, it skips over the requirement contained in of calculating the amount of primary energy corresponding the Directive saying that the public sector should focus on to the value of a white certificate. cost-effective measures that generate the greatest savings The Polish legislator decided to use a mechanism in the shortest time. Therefore, the regulations introduced that in the light of Directive 2006/32/EC is optional and by the Energy Efficiency Act seem insufficient to fulfil the should result in: (i) ensuring competitively priced energy exemplary role in energy efficiency by the public sector. services to final customers and promoting these services, Article 6(1) of Directive 2006/32/EC imposes an obliga- (ii) ensuring the availability to final customers and promot- tion on Member States to ensure that energy distributors, ing competitively priced energy audits, or (iii) contributing distribution system operators or retail energy sales com- to the funds or mechanisms funding energy efficiency panies: (i) provide not more than once a year aggregated improvement measures. Due to the optional character of statistical information on their final customers to designat- this mechanism, ed entities in order to properly design and implement en- Directive 2006/32/EC contains no detailed require- ergy efficiency improvement programmes, and to promote ments in this area. It contains only a definition of “white and monitor energy services and other energy efficiency certificates,” according to which they are certificates

10. Cf. A. Damasiewicz, op. cit. 11. Articles 12 – 27 of the Energy Efficiency Act.

50 issued by independent certifying bodies confirming the Such wording of the provisions of the Energy Efficiency energy savings claims of market actors as a consequence Act does not give priority to the promotion of energy sav- of energy efficiency improvement measures. While as- ings by final customers. Theoretically, a situation may sessing the conformity of the system of white certificates arise in which the white certificates for undertakings to in- introduced by the Energy Efficiency Act with the provisions crease savings by final customers will constitute a minority of Directive 2006/32/EC, one needs to take into account or will not be granted whatsoever due to a lack of appro- the targets of this Directive and particularly the need for priate tenders. Therefore, the present wording of Article 16 energy end-use efficiency improvement emphasised of the Energy Efficiency Act does not appropriately reflect therein. Pursuant to Article 16(7) of the Energy Efficiency the above-mentioned target of Directive 2006/32/EC. Act, at least 80% of grantable white certificates should be It should be added that in general the number of granted for the undertakings increasing energy savings by white certificates granted considerably depends on the final customers and the remaining 20% may concern the quantity and quality of submitted tenders for the selection undertakings leading to an increase in energy savings by of energy efficiency improvement undertakings. Further- auxiliary equipment12 and to reduced losses of electricity, more, pursuant to Articles 27(7) and 48(2) of the Energy heating or in transmission or distribution. Efficiency Act, the system of white certificates will be ap- Moreover, pursuant to Article 16(8) of the Energy Ef- plicable only until March 2016. Meanwhile, as has been ficiency Act, if the total value of white certificates granted observed by M. Toporek and M. Stoczkiewicz, companies in a given tender procedure in the category of undertak- take economic decisions based on calculations which ings aiming to increase energy savings by final customers take into consideration much wider time perspectives. is smaller than the above-mentioned 80%, the President It particularly concerns companies operating in ener- of the Energy Regulatory Office may grant the remaining gy-intensive sectors of the economy and in the energy white certificates to undertakings on the basis of energy sector. Therefore, due to the short guaranteed period saved by auxiliary equipment and the reduction of losses of the operation of the market for white certificates, it is in transmission or distribution. not certain whether the white certificate mechanism will

12. Auxiliary equipment is defined as a unit of auxiliary facilities or installations used for the process of generating electricity or heating (Article 3(14) of the Energy Efficiency Act). 51 fulfil its role13. With regard to the above, such a manner ficiency improvement measures provided for in the Energy of transposing the provisions of Directive 2006/32/EC Efficiency Act) to conclude energy performance contracts that require establishing a system of support for energy with such entities as ESCOs. efficiency may turn out to be insufficient for the purposes Moreover, in accordance with the Second National of this Directive. Energy Efficiency Action Plan for Poland, other actions to Article 6(3) of Directive 2006/32/EC, pursuant to which develop the market for energy services were to be taken Member States should ensure the conditions neces- in 2012, such as the introduction of suitable amendments sary for the development of markets for energy services, to documents, including relevant regulations, on obtain- energy audits and energy efficiency improvement meas- ing financing from European Union funds, The National ures, has not been reflected in the Energy Efficiency Act Fund for Environmental Protection and Water Manage- inasmuch as it refers to energy services. As has already ment, The Provincial Fund for Environmental Protection been mentioned above, the Energy Efficiency Act has not and Water Management and from the Norwegian Finan- created legal frameworks to stimulate the markets for such cial Mechanism. services. Planned actions aiming to stimulate the market Additionally, demonstration terms of reference and for energy service companies have been described in the sample contracts concerning different categories of Second National Energy Efficiency Action Plan for Poland. services ensuring energy efficiency improvement were to An example of such actions can be enabling energy be published on the websites of the Polish Ministry of the service companies to enter a tender procedure in order to Economy.14 However, it should be noted that the national obtain an energy efficiency certificate (a white certificate) energy efficiency action plan does not constitute a source or enabling public sector entities (obliged to use energy ef- of generally applicable law and the transposition of EU

13. M. Toporek, M. Stoczkiewicz, Na ile efektywna ustawa o efektywności energetycznej, Rzeczpospolita, 25 June 2011, http://www.rp.pl/artykul/663942.htm- l?p=1. 14. Second National Energy Efficiency Action Plan for Poland, 2011, version 0.3 of 10 February 2012, p. 43. 52 provisions into national law basically requires establishing such legal acts.15 The provisions on the development of energy services contained in the Second National Energy There are serious doubts, Efficiency Action Plan for Poland cannot substitute for a transposition in the form of generally applicable norma- whether the white certificates tive acts since this plan fails to specify entities’ obliga- tions to take specific actions (due to the lack of legislative mechanism fulfills its role. character and the general nature of the plan provisions). Therefore, it needs to be stated that the provision of Article 6(3) of Directive 2006/32/EC has not been transposed into Polish law. Article 8 of Directive 2006/32/EC, pursuant to which the Member States should ensure, where they deem it necessary, the availability of appropriate qualification, ac- creditation or certification schemes for providers of energy services, energy audits and energy efficiency improve- ment measures, has not been transposed into Polish law. public debt, as well as innominate contracts with a maturity Initially, the Energy Efficiency Act contained provisions that date of more than a year, related to financing services, de- regulated the issues of obtaining qualifications required to liveries, construction works, which bring economic effects conduct an energy audit (Articles 29 – 34 of the Energy Ef- similar to those of loan agreements. ficiency Act) but these provisions were removed by the Act Some ESCOs and local government representatives of 12 October 2012 amending the Energy Efficiency Act.16 perceive this provision as a barrier to the development of It should however be emphasised that Member States ESCO investments, particularly with regard to street light- were given the freedom to establish, or not, the qualifica- ing, since communal debt can be increased in this way.19 tion, accreditation or certification schemes for providers However, the authors of the report “The ESCO market in of energy services, energy audits and energy efficiency Poland. Its current state and prospects for development.” improvement measures, so the present legal status is not emphasise that in the case of using the public-private inconsistent with Directive 2006/32/EC. In this context, the partnership (“PPP”) formula for ESCO contracts, it is pos- quality of conducted energy audits requires special atten- sible, after meeting some additional conditions, to avoid tion. The model that functions on the Polish market lacks the inclusion of receivables on account of ESCO contracts an acceptance of effects and monitoring of conducted ac- in public debt.20 It needs to be stressed though that in tivities, and the benefits estimated in the audits are often considerably overstated. According to Marek Zaborowski from the Institute of Environmental Economics, liberation of the energy auditor profession will not affect the quality of conducted analyses. In his opinion, this quality could be improved by increasing the responsibility of auditors and enhancing the monitoring of the actual results of the undertaking17. Article 9(1) of Directive 2006/32/EC, which orders Member States to repeal or amend national legislation and regulations, other than those of a clearly fiscal nature, that unnecessarily or disproportionately impede or restrict the use of financial instruments for energy savings in the mar- ket for energy services or other energy efficiency improve- ment measures, has not been fully transposed into Polish law. In Polish law, there is, for example, the provision of § 3 (2) of the Minister of Finance’s Regulation of 28 Decem- ber 2011 on detailed classification of debt titles included in the national public debt18, pursuant to which the public debt encompasses e.g. credits and loans, including public- private partnership agreements that influence the level of

15. B. Kurcz, op. cit., p. 54 – 55.16.  16. Dz.U. of 2012, item 1397. 17. M. Zaborowski for ChronmyKlimat.pl, http://www.chronmyklimat.pl/ener- getyka/efektywnosc-energetyczna/14443-decyzja-rzadu-o-uwolnieniu- zawodu-audytora-nie-wplynie-na-jakosc-uslug-audytorskich 18. Dz. U. of 2011, N° 298, item 1767. 19. Cf. Rynek ESCO w Polsce. Stan obecny i perspektywy rozwoju, draft report, Institute of Environmental Economics, 2012, http://www.iee.org. pl/?a=text&b=32, p. 15. 20. According to the official stand of the Ministry of Finance, the fact of whe- ther the given liability arising from a PPP undertaking is included or not in the public debt depends on the interpretation resulting from Eu- rostat decision N° 18/2004, pursuant to which liabilities on account of PPP agreements are not included in public debt if the private partner ta- kes on “the construction risk” and at least one of the following risks: “de- mand risk” or “availability risk,” cf. Rynek ESCO w Polsce. Stan obec- ny i perspektywy rozwoju, draft report, Institute of Environmental Econo- mics, 2012, http://www.iee.org.pl/?a=text&b=32, p. 15. 53 Poland the PPP formula is still perceived as complicated provisions, an audit is a document necessary for obtain- and expensive, and consequently it may turn out not to be ing investment support in the form of white certificates or attractive enough to be used to stimulate the development a thermo-modernisation or modernisation bonus when of the ESCO market. a general investment decision has already been taken. Pursuant to Article 12 of Directive 2006/32/EC, Meanwhile, it seems that the purpose of Article 12 of Member States should ensure, among other things, the Directive 2006/32/EC is to promote energy audits (within availability of high-quality energy audit schemes to all final the meaning of this Directive) in order to motivate final customers. The issue of the availability of energy audits customers to take actions to improve energy efficiency has been raised in the Second National Energy Efficiency particularly in their households. Action Plan for Poland21, which indicates the co-financing Article 13(3) of Directive 2006/32/EC has been seem- of energy audits in companies as one of the energy ef- ingly transposed into Polish law by Article 39 of the Energy ficiency improvement measures. Efficiency Act, pursuant to which Article 5 of the Act of 10 However, as has been mentioned above, the national April 1997 on Energy Law23 (“the Energy Law”) has been energy efficiency action plan does not constitute a source extended by section 6c ordering electricity sales compa- of generally applicable law. Therefore, it should be noted nies to inform their customers about their electricity con- that Article 12 of Directive 2006/32/EC has not been trans- sumption in the previous year and about a place in which posed into Polish law. Neither the provisions establishing information is made available on the average electricity the system of white certificates (that require the conduct consumption for a given energy consumer group, energy of an energy efficiency audit which must be enclosed with efficiency improvement measures and technical character- the tender declaration) nor the provisions of the Act of 21 istics of energy-efficient equipment. November 2008 on the support for thermo-modernisation Simultaneously, the Energy Law has been extended and renovations22 (that require an appropriate energy or by a provision pursuant to which the scope and method of renovation audit to be attached to the request for grant- sales companies informing customers about their electric- ing a thermo-modernisation or renovation bonus) can be ity consumption in the previous year and the method of considered as provisions transposing Article 12 of Direc- informing them about a place in which information is made tive 2006/32/EC. available on model electricity consumption for a given First of all, the definition of an energy audit contained energy consumers group, energy efficiency improvement in Directive 2006/32/EC significantly differs from the measures and technical characteristics of energy-efficient definition of an energy and renovation audit contained in equipment will be determined in a regulation issued by the the Act on support for thermo-modernisation and renova- minister in charge of the economy (Article 9(4)(15) of the tions. Moreover, pursuant to the above-mentioned national Energy Law). Meanwhile, the appropriate regulation24 has

21. Second National Energy Efficiency Action Plan for Poland, 2011, version 0.3 of 10 February 2012, p. 23. 22. Dz. U. of 2008, N° 223, item 1459, as amended. 23. I.e. Dz. U. of 2012, item 1059, as amended. 24. Minister of Economy Regulation of 4 May 2007 on the detailed conditions for the operation of the power system, Dz. U. of 2007, N° 93, item 623, as amended.

54 not been amended since 2008 and no new regulation has mentation”26 (“the Report”). been issued in this area. The transposition of this provi- The Report was prepared in accordance with Article sion of Directive 2006/32/EC is therefore incomplete as 8(1) of the Energy Efficiency Act, on the basis of reports it fails to ensure its effectiveness. Another violation is the on the implementation of the national energy efficiency limitation of the above-mentioned obligation to electricity action plan provided by competent ministers and provincial sales companies, ignoring companies that sell other forms governors. As results from the Report, “in order to facilitate of energy and fuels. the report preparation process, appropriate guidelines have been developed for ministers and provincial gover- 6. Implementation nors”27. In particular, the Report contains information about the manner of fulfilling the obligation on the exemplary role As regards the provisions of Directive 2006/32/EC that of the public sector by individual administration bodies by have been formally transposed into the Polish law (by using at least two energy efficiency improvement meas- setting up or amending the appropriate generally ap- ures listed in the Energy Efficiency Act. plicable legal acts), it is necessary to consider whether According to the Report, the least frequently used additional actions should not be taken to ensure the ef- energy efficiency improvement measures (at the level of fectiveness of the transposed EU provisions, e.g. issuing government departments and alike) are energy internally applicable acts, administrative acts or under- performance contracts and energy audits28. Furthermore, taking administrative supervision and control activities due to a lack of equipment, the requisite metering to (practical implementation).25 monitor energy consumption and a sufficient number of Some actions connected to the practical implementa- specialists, it is not always possible to assess the value tion of Article 5 of Directive 2006/32/EC concerning the of saved energy.29 public sector’s exemplary role in energy efficiency have With regard to the information provided by been indicated in the “Report containing information on governors’ offices, the Report emphasises some impedi- implementing the national energy savings target and the ments connected with the heterogeneity of the information national energy efficiency action plan for 2011, along with provided that differed in the level of data detail (starting an assessment and conclusions drawn from their imple- with very general information up to energy savings cal-

25. Cf. B. Kurcz, op. cit., p. 57. 26. “Report containing information on implementing the national energy savings target and the national energy efficiency action plan for 2011, along with the assessment and conclusions drawn from their implementation,” annex to the public notice of the Minister of Economy of 2 August 2013, Monitor Polski of 23 August 2013, item 673. 27. Ibid, p. 5. 28. Ibid, p. 10. 29. Ibid, p. 11-12. 55 culations in absolute units)30. It also stresses the neces- As regards the practical implementation of Article 6 of sity to promote information on the funds available for the Directive 2006/32/EC transposed into the Polish law by implementation of energy efficiency improvement activities introducing regulations on the system of white certificates, and to develop consciousness of fulfilling the exemplary it should be noted that the key issue here is the actual role by public sector entities at the level of provinces.31 commencement of this system’s operation and its effec- As there exist some impediments connected with tiveness in stimulating investments which aim to improve fulfilling the exemplary role by the public sector and with energy efficiency. To this end, it is not enough to introduce providing information on energy efficiency improvement legislative provisions and appropriate regulations. measures used by this sector, it would be desirable to The President of the Energy Regulatory Office must take additional actions to develop the competence and take action with an aim to issue a suitable number of white consciousness of public sector entities, which will contrib- certificates, i.e. to issue invitations to tender and to select ute to the practical implementation of Article 5 of Directive the winning tenders for the undertakings to which these 2006/32/EC. certificates will be granted. The President of the Energy Regulatory Office published the first invitation to tender on 31 December 2012 in the Public Information Bulletin of the Energy Regulatory Office.32 The deadline for submitting tenders was 30 January 2013, and they were opened on 28 February 2013. The winning tenders were selected on 29 August 201333, i.e. more than 6 months after the opening of the tenders. In the announcement of the President of the Energy Regula- tory Office of 27 May 2013, the long duration of the tender procedure was explained by the precedential character of the case34. Such a lengthy selection of the winning tenders, however, brings up a question as to whether the administrative authorities responsible for conducting the tender procedure were suitably prepared for this task. Regardless of the time spent on selecting the first winning tenders in the procedure concerning the issuance of white certificates (the length of which can be partly explained by the precedential character of the case), it should be noted that the value of white certificates (calculated in tonnes of oil equivalent) to be granted to the winning entities as a result of selecting the winning tenders constitutes less than 4% of the total value of the certificates to be issued35. The total value of energy efficiency certificates to be issued as a result of the organised tender procedures amounted to 550 000 toe36, and therefore the value of energy efficiency certificates to be issued as a result of this tender procedure amounts to 22 000 toe. The energy savings target to be achieved in 2016 through the system of white certificates is approx. 2.2 Mtoe37. So the value of white certificates to be issued as a result of selecting the winning tenders is only about 1% of the certificates expected to bring savings. If the results and duration of subsequent tender procedures are similar, the assumed value of savings by means of white certificates will not be achieved.

30. Ibid, p. 12. 31. Ibid, p. 12. 32. http://ure.gov.pl/bip/efektywnosc-energetycz/1102,Ogloszenie-Prezesa- Urzedu-Regulacji-Energetyki-Nr-12012-w-sprawie-przetargu-na-w.html. 33. Minutes N° 1/2013 of the tender procedure, http://bip.ure.gov.pl/bip/ efektywnosc-energetycz/1137,Protokol-Nr-12013-z-dnia-29-sierpnia- 2013-r-z-przebiegu-przeprowadzonego-przetar.html. 34. http://www.ure.gov.pl/pl/urzad/informacje-ogolne/aktualnosci/5300,UR- E-w-sprawie-przetargu-na-wybor-przedsiewziec-sluzacych-poprawie- efektywnosci-e.html. 35. http://www.wnp.pl/polska_efektywna_energetycznie/pierwszy-przetarg- na-biale-certyfikaty-rozstrzygniety,206546_1_0_0.html. 36. Announcement of the President of the Energy Regulatory Office N° 1/2012 on the tender procedure for selecting energy efficiency improve- ment undertakings for which energy efficiency certificates are granted, http://bip.ure.gov.pl/bip/efektywnosc-energetycz

37. The overall target to be achieved in 2016 is approx. 4.5 Mtoe, cf. justifi- cation to the draft version of the Energy Efficiency Act, http://orka.sejm. gov.pl/Druki6ka.nsf/0/3E63E71ACD1BCE32C12577C3005DDF04/$fi- le/3514-I.pdf, p. 41. 56 The small number of submitted tenders, the large assessment of this target achievement will be therefore number of rejected tenders and the very long duration of possible in 2016. Moreover, an intermediate indicative the tender procedures imply that further practical actions target was set at the level of 2% of the average consump- should be taken to enhance the system and thus to practi- tion for the years 2001 – 2005. In accordance with the cally implement Article 6 of Directive 2006/32/EC, such as Second National Energy Efficiency Action Plan, energy ensuring appropriate training for the representatives of the savings of 5.9% of the average consumption for the years authority selecting the winning tenders or ensuring support 2001 – 2005 were obtained by 201039 so the intermedi- for entities submitting tenders. ate indicative target was achieved. It should however be The small supply of white certificates (that can result noted that as of September 2013 the Commission has not from the above-mentioned imperfections impeding the published the report on the assessment of the second na- operation of the system of white certificates) may question tional energy efficiency action plans submitted by Member the effectiveness of this system as a mechanism for stimu- States, and therefore the Commission’s opinion on the lating energy efficiency investments. Moreover, as has data provided is still unknown. been mentioned above, the system of white certificates is to operate only until March 2016, whereas companies 8. Procedures initiated by the European take economic decisions based on calculations which take Commission into consideration much wider time perspectives38. This is an additional reason for serious doubts as to whether the As it results from the draft version of Annex 3 to the Part- mechanism of white certificates will fulfil its role or not. nership Agreement “The fulfilment of ex ante conditionality for European funds by Poland 2014-2020,” the proceed- 7. Achievement of the objectives ings initiated by the Commission against Poland due to the lack of transposition of Directive 2006/32/EC have been of Directive 2006/32/EC discontinued. Simultaneously, it has been emphasised that “work is currently in progress in the Ministry of the The general objective of Directive 2006/32/EC is to Economy on developing solutions to the Act on Energy achieve energy savings of 9% in 2016 in relation to the Law that contain the provisions on the necessity to install average consumption for the years 2001 – 2005. The intelligent electricity meters.

38. M. Toporek, M. Stoczkiewicz, Na ile efektywna ustawa o efektywności energetycznej, Rzeczpospolita, 25 June 2011, http://www.rp.pl/arty- kul/663942.html?p=1. 39. Second National Energy Efficiency Action Plan for Poland, 2011, http://ec.europa.eu/energy/efficiency/end-use_en.htm, p. 8. 57 The Directive on the Ecodesign of Energy-Related Products1

58 Agata Bator 1. Aims of the Directive The aim of Directive 2009/125/EC of the European Parlia- ment and of the Council of 21st October 2009 establishing a framework for the setting of ecodesign requirements for energy-related products (OJ L 285 of 31.10.2009, p. 10, hereinafter called “Directive 2009/125/EC”) is to achieve a high level of environmental protection by reducing the potential impact of energy-related products on the environ- ment. In the preamble to Directive 2009/125/EC it is indi- cated that this will be ultimately beneficial for consumers and other end users, and that improving the energy and efficiency of products will contribute to the securi- ty of the energy supply and to the reduction of the demand for natural (motive 10 of the preamble to Direc- tive 2009/125/EC). Implementing ecodesign requirements should contribute to improving energy efficiency and reducing environmental impact since many energy-related products have great potential, thanks to their improved designs, to reduce their environmental impact and to save energy. This aims also to generate savings for companies and end users (motive 10 of the preamble to Directive 2009/125/EC). The relation of ecodesign and energy ef- ficiency improved in this way to achieving greenhouse gas emission targets in the European Union (motive 6 of the preamble to Directive 2009/125/EC) as well as the relation to the Integrated Product Policy of the European Union (motive 5 of the preamble to Directive 2009/125/EC) are emphasised in the preamble to the Directive. The main aim of Directive 2009/125/EC is to ensure the free move- ment of energy-related products on the internal market. Therefore the Directive specifies a framework for the set- ting of ecodesign requirements for such products. 2. Basic resolutions of Directive 2009/125/EC “Ecodesign” means the integration of environmental aspects into product design with the aim of improving the environmental performance of the product throughout its whole life cycle.2 The Directive provides that the Commit- tee shall issue so-called implementing measures3 which Directive 2009/125/EC requires that products covered by specify the ecodesign requirements concerning particular implementing measures may be placed on the market or groups of products (Art. 1 (2) of Directive 2009/125/EC). put into service only if they comply with those measures The implementing measures are issued in relation to prod- and bear the CE marking (Art. 3 (1) of Directive 2009/125/ ucts which meet the following criteria: EC). The rules concerning affixing a CE marking and issu- a) the product generates significant sales within the ing Declarations of Conformity in connection with meeting European Union, approximately 200,000 items a year, the ecodesign requirements are specified in Art. 5 of the according to the latest data; Directive 2009/125/EC as well as in Annex VI hereto. The b) the product has a significant environmental impact4 as Declaration of Conformity should be issued after assess- regards the amounts placed on the market or put into ing the conformity of the product with all the requirements service; and of the pertaining implementing measure. The conformity c) the product has significant potential to improve its assessment procedures are specified in the implementing impact on the environment without generating exces- sive costs, including in particular: (i) the lack of other appropriate EU legislation or the lack of an appropriate solution of the problem by market forces, and (ii) great discrepancies concerning the ecological performance of any products on the market that have and equivalent function. Deadline for transposition

1. Directive 2009/125/EC of the European Parliament and of the Council of the Direvtive passed of 21st October 2009 establishing a framework for the setting of ecode- sign requirements for energy-related products. (OJ L 285 of 31.10.2009, on 20.IX.2010. Directive p. 10). 2. Art. 2 point 23 of Directive 2009/125/EC. 3. These take the form of so-called Implementing Regulations. transposed with delay. 4. As specified in the strategic Community priorities specified in Decision No 1600/2002/EC. 59 measures concerning particular products. Manufacturers 4. Time for implementation have a choice between internal design control (described in national law in Annex IV to Directive 2009/125/EC) and a management system for assessing conformity (described in Annex V to Member States were obliged to bring into force the Directive 2009/125/EC)5. laws, regulations and administrative provisions nec- Pursuant to Directive 2009/125/EC, Member States essary to comply with the provisions of Directive are obliged to set up a system of control and supervision 2009/125/EC by 20th November 2010 (Art. 23 (1) of of the market to ensure that the requirements specified in Directive 2009/125/EC). the Directive are met. They shall designate the authorities responsible for market surveillance and arrange for them 5. Transposition into the national law to have and use the necessary powers (Art. 3 (2) and Art. 7 of Directive 2009/125/EC). Directive 2009/125/EC has been transposed into Polish At the same time Directive 2009/125/EC invokes the law by passing the Regulation of the Minister of the rule of free movement of goods within the European Union Economy of 17th December 2010 on the conformity as- and explains that the requirements regarding ecode- sessment procedures for energy-consuming products and sign cannot restrict or impede the placing on the market marking them6 (hereinafter called “Regulation”). or putting into service within the territories of particular However, it must be noted that due to the connection Member States of products that meet the requirements of of Directive 2009/125/EC with the so called new approach7 the appropriate implementation measure and bear the CE specified in the Council Resolution of 7th May 1985 on a marking (Art. 6 (1) of Directive 2009/125/EC). new approach to technical harmonisation and standards8, Member States are also obliged, subject to Art. 20 the Regulation was issued pursuant to Art. 9 of the Act of Directive 2009/125/EC, to lay down the penalties for of 30th August 2002 about the compliance assessment infringing national provisions adopted pursuant to this system9 (“Act on the Compliance Assessment System”). Directive and to notify those provisions to the Commission The Act establishes the legal framework for the products by 20th November 2010 (and then notify the Commission covered by the so-called new approach directives,(that of any subsequent amendments to these provisions). is directives passed according to the principles included in the abovementioned Resolution of the Council of the 3. Entry into force of Directive European Union of 7th May 1985 on the new approach to 2009/125/EC technical harmonisation and standards). In connection with the above, the appropriate provi- Directive 2009/125/EC entered into force on 20th Novem- sions of the Act on the Compliance Assessment System ber 209 (Art. 25 of Directive 2009/125/EC). are applicable to the products covered by the implement- ing measures issued on the basis of Directive 2009/125/

5. Art. 8 (1) (2) of Directive 2009/125/EC 6. Dz. U. of 2011, No 8, item 32. 7. Motive 34 of the Preamble of the Directive 2009/125/EC. 8. Dz. U. C 136 of 04.06.1985, p. 1. 9. Dz. U. of 2010, No 138, item 935, consolidated text, with subsequent alterations.

60 EC. Art. 13 (a) of the Act on Compliance Assessment System can be mentioned among these provisions. According to it a manufacturer or its authorised repre- sentative (alternatively an importer, if the manufacturer’s registered seat is not in the territory of EU Member States or in the territory of the Member States of the European Free Trade Association (EFTA) – parties of the European Economic Area, and if the manufacturer has not appointed an authorised representative) is obliged to keep the documentation concerning the products and the results of the conformity assessment of the products with the basic requirements for 10 years from the date of manufacturing the last product the documentation applies to. Moreover, another consequence of the relation of Directive 2009/125/EC to the so called new approach is that products specified in implementing measures under this Directive are subject to the surveillance of the Trade Inspection and the President of the Office of Electronic Communications (within the appropriate scopes)10. These authorities act as specialised authorities, pursuant to Art. 38 of the Act on Compliance Assessment System and together with the President of the Office of Competition and Consumer Protection they constitute the elements of the surveillance system which is defined by this Act (also in relation to the products covered by the implementing measures issued under Directive 2009/125/EC). Pursuant to Art. 39 (1) of the Act on Compliance As- sessment System, the President of the Office of Compe- tition and Consumer Protection is an authority that moni- tors the control systems of products established under this Act. The detailed competences of the Trade Inspec- tion and the President of the Office of Electronic Com- munications in the scope of product control (including the products covered by implementing measures issued under Directive 2009/125/EC) are specified respectively by: Trade Inspection Act of 5th December 200011 (here- inafter called “Trade Inspection Act”) and the Act of 16th July 2004 Telecommunications Law12 (hereinafter called “Telecommunications Law”). Implementing measures issued under Directive 2009/125/EC, which are the main source of ecodesign requirements come in the form of regulations (hereinafter called “implementing regulations”)13 and therefore they are fully binding and directly applied in all Member States.14 From the effective date, the Regulation shall be a part of the national law of a Member State and is applied directly, without needing to be transposed into national law.15 In Firstly, amongst the definitions provided for in the connection with the above, national regulations transpos- Regulation, the definitions of components and subassem- ing the provisions of Directive 2009/125/EC and directly blies are missing. Pursuant to Art. 2 (2) of the Directive binding EU provisions complement each other. 2009/125/EC components and subassemblies mean An analysis of the Regulation, the Act on Compliance components which are to be included in the products and Assessment System, Telecommunications Law and The which are not placed on the market or put into service as Trade Inspection Act leads to the conclusion that most separate parts for end users or for which environmental of the provisions of Directive 2009/125/EC have been performance cannot be assessed separately. Doubts as to transposed into Polish Law. However, it should be noted how this should be interpreted may occur as the result of that there are some discrepancies between the provisions the lack of this definition in the legal act transposing Direc- of the Directive 2009/125/EC and the pertinent provisions tive 2009/125/EC into Polish law, since Art. 11 of Directive of Polish law. 2009/125/EC stipulates that implementing measures may

10. Art. 199 (1) (a) of the Act of 16th July 2004 – Telecommunication Law, Dz. U. of 2004, No 171, item 1800 with subsequent alterations, and Art. 3 (1) point 1 (a) of the Act on Trade Inspection of 5th December 2000, Dz. U. of 2009, No 151, item 1219, consolidated text, with subsequent alterations. 11. Dz. U. of 2009, No 151, item 1219 consolidated text, with subsequent alterations. 12. Dz. U. of 2004, No 171, item 1800, with subsequent alterations. 13. A list of appropriate implementing regulations is on the website of the Commission: http://ec.europa.eu/energy/efficiency/ecodesign/doc/overview_legisla- tion_eco-design.pdf 14. Art. 288 (2) of the Treaty of the Functioning of the European Union, Treaty of the Functioning of the European Union, consolidated version, O J C 83 of 30.03.2010, p. 47. 15. A. Wyrozumska, J. Barcz, M. Górka, A. Wyrozumska „Instytucje i prawo Unii Europejskiej” Warsaw 2012, p. 237 and case 34/73 Variola, LexPolonica No 348040. 61 require a manufacturer or its authorised representative plac- ing components and subassemblies on the market or putting them into service to provide the manufacturer of a product covered by implementing measures with relevant information on the material composition and the consumption of energy, materials or resources of the components or subassemblies. When an implementing measure provides for such a requirement, doubt as to how to construe components and subassemblies according to Polish law may arise, especially that Directive 2009/125/EC defines these terms among others by referring to the impossibility of making a separate assessment of the environmental performance of these ele- ments. The definition included in Directive 2009/125/EC is thus so specific that the common understanding of the terms “component” and “subassembly” may appear inadequate. Moreover, pursuant to Art. 8 (4) of the Regulation, in the technical documentation the manufacturer shall include a copy of the information concerning the environmental aspects of the manufacture of a product consuming energy which has an impact on the way of using the product. Whereas from An- nex I to Directive 2009/125/EC (Part 2. Requirements relating to the supply of information) it follows that in appropriate situations the implementing measures may require the manu- facturer to supply information that may influence the way the product is handled, used or recycled by parties other than the manufacturer. Therefore, the wording of the provision of the Regulation suggests an absolute duty to supply information that may influence the way the product is handled, whereas Direc- tive 2009/125/EC clearly conditions such duty on the par- ticular implementing measure. As has been stated above, implementing measures issued on the basis of the Directive 2009/125/EC are in the form of regulations (implementing regulations) and therefore they are fully binding and directly applied in all Member States16. Member States cannot under- take activities in order to execute the regulation which could lead to altering its content17. Therefore the abovementioned discrepancy between the wording of the Regulation and the wording of the Directive 2009/125/EC constitutes an incorrect transposition of this Directive into Polish Law. It should also be noted that there is an obligation included in Art. 7 (3) of Directive 2009/125/EC to immediately inform the Commission and the other Member States of any deci- sions which commit the manufacturer or its authorised repre- sentative to make the product compliant with the provisions of an applicable implementing measure or the requirements of CE marking and to stop any infringements, or to provide information about any decisions that prevent the product be- ing placed on the market or about any order to withdraw the product from the market (in a case where a product that has the CE marking and is used for the intended purpose does not meet all the appropriate provisions of the binding imple- menting measure.) This provision has not been transposed into Polish Law correctly, because from Art. 44 (1) of the Act on Compliance Assessment Systems it follows that the President of the Of- fice of Competition and Consumer Protection (who, according to this Act, has appropriate competence in this scope) shall only inform the European Commission about such decisions.

16. Art. 288 (2) of the Treaty of the Functioning of the European Union, Tre- aty of the Functioning of the European Union, consolidated version, O J C 83 of 30.03.2010, p. 47. 17. Point 4 of the Judgement of the Court of Justice of 18th February 1970 in the case of Hauptzollamt Hanburg-Oberelbe v. the company of Paul G. Bollman, reference No of files: 40-69, Collection of Judgements of 1970, p. 69. 62 6. Implementation 7. The achievement of the goals of Directive 2009/125/EC Carried out by the manufacturers or their authorised representatives, checking whether ecodesign require- No separate quantitative aim is specified in Directive ments have been met is the key issue. As it follows from 2009/125/EC (e.g. in the form of achieving a certain the “National Market Surveillance Programme for 2013 amount of energy saving). In Art. 1 (1) of Directive for Products Covered by the New Approach Directives”, 2009/125/EC its aim is specified as ensuring the free which is prepared and handed over to the Commission movement of energy-related products on the internal mar- and other Member States pursuant to Art. 18 (15) of the ket as the result of establishing a framework for the setting Regulation of the European Parliament and of the Council of ecodesign requirements for energy-related products. EC No 765/2008 of 9th July 2008 setting the requirements Due to the fact that the framework for the setting of these concerning accreditation and market surveillance relating requirements has been specified in the Directive, it may to the conditions for bringing products to market and re- be understood that this general aim has been achieved. voking Regulation (EEC) No 339/93, the regular activities However, it should be emphasised that it is very important of the appropriate surveillance authorities focusing, among to enforce in practice that the ecodesign requirements are other things, on issues connected with ecodesign require- met. Moreover, the requirements stipulated by Directive ments are declared. 2009/125/EC are connected to energy efficiency improve- The reports of Inspectorates of Trade Inspection for ment and to achieving the target values of greenhouse gas particular provinces include information on the controls emissions in the European Union. Therefore compliance which check whether ecodesign requirements have with the provisions of Directive 2009/125/E should be also been met. Therefore it seems that the necessary means assessed in the context of these general aims (i.e. the EU of implementing in practice the provisions of Directive aim of increasing energy efficiency by 20 % and reducing 2009/125/EC have been taken. CO2 emissions by 20 % by 2020). Final verification of how the regulations concerning ecodesign contribute to achiev- ing these aims will be possible in 2020.

63 Directive on Product Information about the Consumption of Energy1

Agata Bator

64 1. Aims of the Directive The aim of Directive 2010/30/EU of the European Parlia- ment and of the Council of 19 May 2010 on the indica- tion by labelling and standard product information of the consumption of energy and other resources by energy- related products (OJ L 153 of 18.06.2010 p. 1, hereinafter called “Directive 2010/30/EU”) is to improve the efficiency of energy-related products by enabling consumers to make more conscious choices (motive 4 of the pream- ble of Directive 2010/30/EU). This aim may be achieved in particular by the provision of accurate, relevant and comparable information on the specific energy consump- tion of energy-related products, which should influence the end-user’s choice in favour of those products which consume less energy and other essential resources during use, thus prompting manufacturers to take steps to reduce the consumption of energy and other essential resources of the products which they manufacture and also indirectly encourage the efficient use of these products (motive 5 of the preamble of Directive 2010/30/EU). The abovemen- tioned aim of Directive 2010/30/EU is part of the general EU aim to reduce energy consumption in the European Union by 20 % by 2020 (motives 3 and 5 of the preamble of Directive 2010/30/EU). 2. Basic resolutions of Directive 2010/30/EU Directive 2010/30/EU establishes a framework for the harmonisation of national measures on end-user informa- tion on the consumption of energy (and where relevant of other resources) during the use of products, particularly by means of labelling and standard product information concerning energy-related products, thereby allowing end- users to choose more efficient products. Directive 2010/30/EU applies to energy-related products which have a significant direct or indirect impact on the consumption of energy and, where relevant, on other essential resources during use (such as e.g. water). Categories of such products and detailed requirements concerning them are laid down by the Commission by means of delegated acts in accordance with Articles 10 to 13 of this Directive. In Art. 2 of Directive 2010/30/EU basic terms are defined, such as: ‘dealer’, ‘supplier, ‘placing on the market’ and ‘putting into service’. ‘Supplier’ means the manufacturer or its authorised representative in the Union or the importer who places or puts into service the product on the Union market (in their absence, any natural or who places on the market or puts into service prod- ucts covered by Directive 2010/30/EU shall be considered a supplier). ‘Dealer’ means retailer or other person who sells, rents, offers for hire-purchase or displays products to end-users. ‘Placing on the market’ means making a prod- uct available for the first time on the Union Market with a view to its distribution or use within the Union, whether for reward or free of charge and irrespective of the selling technique. ‘Putting into service’ means the first use of the product for its intended purpose in the Union. Directive 2010/30/EU requires that the suppliers and dealers of the product covered by this Directive have Deadline for transposition certain obligations as to informing the public about the of the Directive passed energy consumption of these products. According to Art. 5 on 20.VI.2011. Directive 1. Directive 2010/30/EU of the European Parliament and of the Council of 19 May 2010 on the indication by labelling and standard product informa- transposed with faults. tion of the consumption of energy and other resources by energy-related products (OJ L 153 of 18.06.2010, p. 1) 65 of Directive 2010/30/EU, suppliers placing on the market Suppliers should include a product fiche in all product or putting into service a product covered by this Directive brochures or in other literature provided with the product. should supply a label and a fiche, that is a standard table At the same time, dealers are obliged to display labels of information relating to the product (detailed require- properly, in a visible and legible manner and make the ments concerning labels and fishes are included in the fiche available in the product brochure or other literature appropriate delegated acts). that accompanies products when sold to end-users. Ac- Moreover, suppliers should produce technical docu- cording to Art. 6 of Directive 2010/30/EU, there is also a mentation which is sufficient to enable the accuracy of duty to display the information included in the label and the information contained in the label and in the fiche to product fiche when the products are offered for sale or hire be assessed. Such documentation should be kept for a from a distance (the details are specified by appropriate period of 5 years after the last product concerned was delegated acts). manufactured, and it should be available on request to the Member States should have the possibility to make market surveillance authorities of the Member States and the supplier ensure that the product meets all the require- to the Commission within 10 working days of receipt of the ments specified in Directive 2010/30/EU as well as in request. Suppliers should provide the necessary labels appropriate delegated acts. If a product does not comply free of charge to dealers. with all the relevant requirements a Member State should take a decision restricting or prohibiting the placing on the market or putting into service of the product in question or ensuring that it is withdrawn from the market (Art. 3 (2) of Directive 2010/30/EU). Additionally, Directive 2010/30/EU requires that any advertisement for a specific model of energy-related products covered by a delegated act under this Direc- tive includes, where energy-related or price information is disclosed, a reference to the energy efficiency class of the product and that any technical promotional material concerning energy-related products which describes the specific technical parameters of a product is provided to end-users with the necessary information regarding ener- gy consumption or shall include a reference to the energy efficiency class of the product (Art. 4 (c) (d) of Directive 2010/30/EU). Member States should lay down the rules on the penalties applicable for infringements of the national provi- sions adopted pursuant to Directive 2010/30/EU and its delegated acts and notify these provisions to the Commis- sion by 20 June 2011 (Art. 18 of Directive 2010/30/EU). 3. Entry into force of Directive 2010/30/EU Directive 2010/30/EU entered into force on 19 June 2010 (Art. 18 of Directive 2010/30/EU, the first sentence). However, the articles concerning the duty of suppliers to provide the labels and information about the products to dealers, the responsibility of the suppliers to provide ac- curate labels and fiches concerning the products and the presumption that the suppliers have given consent to the publication of the information provided on the label or in the fiche (Art. 5 (d) (g) (h) of Directive 2010/30/EU) have been applicable since 31 July 2011 (Art. 18 of the Directive 2010/30/EU, the second sentence). 4. Time for implementation in the national law Member States should have brought into force the laws, regulations and administrative provisions necessary to comply with the provisions of Directive 2010/30/EU by 20 June 2011 at the latest (Art. 16 of the Directive 2010/30/ EU, the first sentence). Member States should apply those provisions from 20 July 2011 (Art. 16 of Directive 2010/30/ EU, the second sentence). 5. Transposition into national law

Directive 2010/30/EU was transposed into Polish law by the Act of 14 September 2012 on Obligations to Provide 66 Information about the Energy Consumption of Energy-Re- lated Products2 (hereinafter called ‘Act on Obligations’). Irrespectively of the fact that the resolutions transposing Directive 2010/30/EU were passed with a long delay from the time limits required by this Directive, some defects may be noticed. Pursuant to Art. 2 (1) and (2) of the Act on Obligations, its provisions shall be applied to energy- using products to which certain requirements as to mak- ing technical documentation, labelling and using fiches apply. The requirements are specified by the acts of the European Commission and are issued on the basis of the qualifications delegated by the European Parliament and by the Council. The list of such acts is announced by the Minister of the Economy by official announcement in the Polish Official Journal of Laws and Statues “Monitor Polski” [Official Gazette of the Government of the Republic of Poland]. The abovementioned delegated acts are issued on the basis of Art. 290 of the Treaty on the Functioning of the European Union3 (hereinafter called “TFEU”) and the relevant qualifications granted to the Commission in Art. 10 of Directive 2010/30/EU. The delegated Acts may have the form of regulations, directives or decisions.4 The delegated acts issued on the basis of Directive 2010/30/EU are in the form of regulations (delegated regulations) thus they are fully binding and are directly ap- plicable in all Member States.5 From the effective date, the Regulation shall be a part of the national law of a Member State and be applied directly, without the necessity of be- ing transposed into national law. Introducing the regulation into national law, e.g. by issuing an Act, is simply unac- ceptable since this would lead to blocking of the direct effectiveness of regulations and their community character (business units would then think that their situation in a given matter is regulated by the national, not Union law).6 Member States cannot adopt “any measure which would conceal from the persons it applies to its community nature and the results of any legal decision”.7 The solu- tion applied by Polish legislator in Art. 2 (1) (2) of the Act on Obligations should not be considered as incompliant with the abovementioned principles because in this Article there is a clear reference to EU delegated acts, and the list of these acts officially announced by the Minister of the Economy is not of a legislative character, it is only informa- tive. Nevertheless, some significant deficiencies of this solution should be indicated. First of all, Art. 2 (2) of the Act on Obligations does not mention the frequency of making official announcements of the list of delegated acts, it also does not impose an obligation to update the list. Meanwhile, according to Art. 11 of Directive 2010/30/ EU the powers to adopt the delegated acts referred to in this Directive have been conferred to the Commission for a period of five years beginning on 19 June 2010 with the possibility to extend this period for another five years. Therefore it can be expected that at least until 19 June 2015 there will be new regulations of the Commission in this respect. So far the Commission has issued eight delegated regulations (delegated acts regarding energy-

2. Dz. U. of 2012, item 1203 3. Treaty on the Functioning of the European Union, consolidated version, OJ C 83 of 30.03.10, p. 4. A. Wyrozumska [w:] J. Barcz, M. Górka, A. Wyrozumska „Instytucje i prawo Unii Europejskiej”, Warsaw 2012, p. 330. 5. Art. 288 (2) of the Treaty on the Functioning of the European Union, Treaty on the Functioning of the European Union, consolidated version, OJ C 83 of 30.03.10, p. 47 6. A. Wyrozumska [w:] J. Barcz, M. Górka, A. Wyrozumska „Instytucje i prawo Unii Europejskiej”, Warsaw 2012, p. 237, and case 34/73 Variola, LexPolonica No 348040. 7. See: A. Wyrozumska [w:] J. Barcz, M. Górka, A. Wyrozumska „Instytucje i prawo Unii Europejskiej”, Warsaw 2012, p. 237, and case C-253/00 Munoz, Le- xPolonica 356992. 67 efficiency labels for: household washing machines,8 acts16 includes only the first seven of the abovementioned household dishwashers,9 TV sets,10 household refrig- regulations, it does not include the delegated regulation of erators,11 air-conditioners,12 household tumble-driers,13 the Commission (EU) No 665/2013 of 3 May 2013 supple- electric lamps and light fixtures,14 and vacuum cleaners15). menting Directive 2010/30/WE of the European Parliament Whereas the official announcement of the Minister of the and of the Council on the energy-efficiency labelling of Economy of 26 February 2013 on the list of delegated vacuum cleaners, which was issued after publishing this

8. Delegated Act of the Commission (EU) No 1061/2010 of 28th September 2010 supplementing Directive 2010/30/WE of the European Parliament and of the Council regarding energy efficiency labels for household washing machines, OJ L 314 of 30.11.2010, p. 47. 9. Delegated Act of the Commission (EU) No 1059/2010 of 28th September 2010 supplementing Directive 2010/30/WE of the European Parliament and of the Council regarding energy efficiency labels for household dishwashers, OJ L 314 of 30.11.2010, p. 1. 10. Delegated Act of the Commission (EU) No 1062/2010 of 28th September 2010 supplementing Directive 2010/30/WE of the European Parliament and of the Council regarding energy efficiency labels for TV sets, OJ L 314 of 30.11.2010, p. 64.1.  11. Delegated Act of the Commission (EU) No 1060/2010 of 28th September 2010 supplementing Directive 2010/30/WE of the European Parliament and of the Council regarding energy efficiency labels for household refrigerators, OJ L 314 of 30.11.2010, p. 17. 12. Delegated Act of the Commission (EU) No 626/2011 of 4th May 2011 supplementing Directive 2010/30/WE of the European Parliament and of the Council regarding energy efficiency labels for air-conditioners, OJ L 178 of 06.07.2011, p. 1. 13. Delegated Act of the Commission (EU) No 392/2012 of 1 March 2012 supplementing Directive 2010/30/WE of the European Parliament and of the Council regarding energy efficiency labels for household tumble-dryers, OJ L 123 of 09.05.2012, p. 1. 14. Delegated Act of the Commission (EU) No 874/2012 of 12 July 2012 supplementing Directive 2010/30/WE of the European Parliament and of the Council regarding energy efficiency labels for electrical lamps and light fixtures, OJ L 258 of 26.09.2012, p. 1. 15. Delegated Act of the Commission (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/WE of the European Parliament and of the Council regarding energy efficiency labels for vacuum cleaners, OJ L 192 of 13.07.2013, p. 1. 16. Monitor Polski of 2013, item 168.

68 official announcement. In a relatively short time after pub- lishing the list of delegated acts, the list became invalid. At present the wording of Art. 2 (1) (2) of the Act on Obliga- tions could mislead business units as to the current legal The regulations on status of the catalogue of products covered by Directive information on energy usage 2010/30/WE and the delegated acts issued on the basis of this Directive (taking into consideration the fact that this allow final users to choose provision does not concern the issue of delegated acts is- sued after the date of publishing the first official announce- more efficient products. ment of the list of delegated acts). However, the wording of Articles 19 and 20 of the Act on Obligations should be noted. These Articles specify the qualifications of the Trade Inspection and the President of the Office of Electronic Communications concerning and air-conditioners are met. The President of the Office the surveillance of energy-using products placed on the of Electronic Communications has been equipped with market or put into service. According to Art. 19 of the Act analogical qualifications concerning TV sets (Art. 199 (1) on Obligations altering Art. 3 of this Act of 15 December (b) of the Act of 16th July 2004 – Telecommunications 2000 on Trade Inspection17, one of the tasks of the Trade Law18). When the catalogue of products covered by the Inspections is to control whether the requirements speci- surveillance of the Trade Inspection and the President fied in the delegated acts issued on the basis of Directive of the Office of Electronic Communications is compared 2010/30/EU concerning household washing machines, to the products covered by the delegated acts enumer- household dishwashers, TV sets, household refrigerators ated in the official announcement of the Minister of the Economy of 26 February 2013 on the list of delegated acts19, it is evident that no clear surveillance qualifications are granted as regards household tumble dryers, electri- cal lamps and light fixtures. Moreover, the problem of the lack of an obligation to update the list of delegated acts issued on the basis of Directive 2010/30/EU, which has already been mentioned, reoccurs. Taking into considera- tion the delegated acts that have already been issued by the Commission, it can be noticed that there are also no clear surveillance qualifications granted in relation to vacuum cleaners. As has already been mentioned above, delegated regulations are fully binding and are directly ap- plied in all Member States and they become a part of the national legal orders without the need to transpose them. At the same time, some general qualifications of the Trade Inspection result from Art. 3 (1) points 1 and 1 (a) of the Act of 15 December 2000 on Trade Inspection20 according to which one of the tasks of the Trade Inspection is the surveillance of the lawfulness and the reliability of manu- facturers running a business activity within the meaning of the separate provisions concerning production, trade and services, as well as the surveillance of whether products placed on the market are compliant with the basic or other requirements specified in the separate provisions, exclud- ing products that are subject to the supervision of other competent authorities. The surveillance qualifications necessary in order to check whether the requirements specified in delegated acts issued on the basis of Directive 2010/30/EU in regards to household tumble-driers, electri- cal lamps and light fixtures and vacuum cleaners can therefore be generated from these provisions and from the directly applicable delegated acts. However, on the other hand, the fact that the Act of 15 December 2000 on Trade Inspection21 grants these surveillance qualifications only in regards to some products covered by delegated acts issued on the basis of Directive 2010/30/EU raises doubt as to the interpretation concerning the scope of the qualifications of the competent authorities in relation to the

17. Dz. U. of 2009 No 151, item 1219, consolidated text, with subsequent alterations. 18. Dz. U. of 2004 No 171, item 1800, with subsequent alterations. 19. Monitor Polski of 2013, item 168. 20. Dz. U. of 2009 No 151, item 1219, consolidated text, with subsequent alterations. 21. Dz. U. of 2009 No 151, item 1219, consolidated text, with subsequent alterations. 69 rest of these products. Such a solution should therefore be of a regulation, the requirements concerning energy effi- assessed negatively. It seems that a general reference to ciency which should be met by these products, taking into the products covered by the delegated acts issued on the consideration the necessity to protect the interests of the basis of Directive 2010/30/EU would be a better solution. end-users, as well as the requirements concerning techni- Also the following circumstance should be noted: cal documentation, using labels and technical specifica- Directive 92/75/EEC of 22 September 1992 on the indica- tions, and label design. Art. 53 of the Energy Law prohibits tion by labelling and standard product information of the the placing on the national market products which are consumption of energy and other resources by household non-compliant with the requirements specified in Art. 53 of appliance (hereinafter called “Directive 92/75/EEC”)22, the Energy Law. Directive 2010/30/EU significantly differs which preceded Directive 2010/30/EU, was transposed from Directive 92/75/EEC, thus one should pay attention into Polish law by introducing the Act of 10 April 1997 – to the possible discrepancies between the provisions of Energy Law23 (hereinafter called “Energy Law”) Articles 52 Articles 52 to 53 (a) of the Energy Law and the execu- to 53 (a). Pursuant to Art. 52 of the Energy Law, the manu- tive provisions issued on the basis of Art. 52 (4) )5) of the facturers and importers of appliances shall specify in the Energy Law and the transposing provisions and issued on technical documentation, the fuel and energy consumption the basis of Directive 2010/30/EU. level compared to the obtained value of the product opera- It seems that such discrepancies could be resolved tional efficiency in operating conditions (energy efficiency), by means of conflict-of-laws principles (in particular lex and the manufacturers and importers of the products posterior derogat legi priori – the later law cancels earlier placed on the market shall provide information about the laws), however not revoking or not modifying Articles 52 product energy efficiency on the label and in the technical to 53 (a) of the Energy Law and the executive provisions specifications. Pursuant to Art. 52 (4) (5) of the Energy issued on the basis of Art. 52 (4) (5) of the Energy Law Law, the Minister of the Economy may specify, by means while transposing Directive 2010/30/EU results in the fact that the legal status of the requirements concerning labelling, fiches and technical documentation regarding energy-related products is complex and can be unclear for market players. 6. Implementation

Due to the fact that the Act on Obligations has been in effect for a short period of time (it entered into force on 1 February 2013) it is at present (September 2013) hard to assess the level of the practical implementation of Directive 2010/30/EU, including, for example the level of preparation of the competent authorities that are to super- vise whether the provisions transposing the Directive into Polish law and the delegated acts issued on the basis of it are observed. It should be noted that in relation to the provisions transposing Directive 92/75/EEC, the President of the Energy Regulatory Office is the authorised body to impose penalties for placing equipment that does not comply with the requirements specified in Art. 52 of the Energy Law on the national market. From the reasons of the draft of the Act on Obligations it appears that the abovementioned provision concerning imposing penalties by the President of the Energy Regulatory Office has not been applied in practice. Therefore the surveillance system has been altered in order to ensure that the provisions concerning providing information about energy consumption are observed: the Trade Inspection and the Office for Electronic Communica- tions have been equipped with the appropriate qualifica- tions and the President of the Office of Competition and Consumer Protection has been entrusted with the task of monitoring this control system pursuant to Art. 11 (1) of the act about Obligations. Due to the fact that the provision concerning the imposition of penalties by the President of the Energy Regulatory Office has not been applied in practice it is impossible to refer to any practical experience gained on the basis of the provisions that were previously in force and an assessment of the surveillance system im- plemented by the Act on Obligations will be possible only after its having functioned for some time.

22. OJ L 297 of 13.10.1992, p. 16 23. OJ of 2012, item 1059, consolidated text 70 7. Achievement of the goals of Directive 2010/30/EU

No separate aim (e.g. quantitative) is specified in Direc- tive 2010/30/EU, but the requirements of this Directive have been connected to the general aim that is a reduc- tion of energy consumption in the European Union by 20 % by 2020. An assessment of how information about the energy consumption of energy-consuming products contributes to achieving this aim will be possible some time after the implementation of the provisions (pursu- ant to Art. 14 of the Directive 2010/30/EU the Commis- sion should review the effectiveness of this Directive by 31 December 2014), and the final verification of whether the aim, that is the reduction of energy consumption by 20 %, has been achieved, will be possible in 2020. 8. Procedures initiated by the European Commission

The European Commission instituted proceedings con- nected with the lack of the notification of national legal acts which transposed Directive 2010/30/EU (Infringe- ment No according to the records of the European Commission: 2011/0916). On 26 March 2012 a justified opinion of the European Commission was directed to Poland. The proceedings were exercised pursuant to Art. 258 of the Treaty on the Functioning of the Euro- pean Union. As of 21 February 2013, the proceeding was still in progress.

71 Directive on the Energy Performance of Buildings1 Agata Bator

72 1. Objectives of the Directive unit”, “major renovation”, “energy performance certificate” and “cost-optimal level.” The objectives of the Directive of the European Parliament In line with Art. 4 of Directive 2010/31/EU, Member and of the Council 2010/31/EU of May 19, 2010 on the States should determine the minimum requirements regar- energy performance of buildings (Official Journal of the EU ding the energy performance of buildings or building units L 153 of 18.06.2010, p. 13, hereinafter: “Directive 2010/31/ with a view to achieving cost-optimal levels. The metho- EU”) are the limitation of energy use and an increase in dology of calculating the energy performance of buildings the use of renewable energy sources in the sector of buil- should comply with the common general framework deter- dings, via the promotion of the improvement of energy per- mined in Schedule I to Directive 2010/31/EU. On the other formance of buildings in the European Union. hand, the calculation of cost-optimal levels should com- This objective forms a part of the general priority ply with the framework of comparative methodology de- which is the improvement of energy efficiency and the de- termined by the Commission in Delegated Regulation No. crease, by 2020, of energy consumption in the Union by 244/2012 of January 16, 2012 supplementing Directive 20% (paragraph 5 of the preamble of Directive 2010/31/ 2010/31/EU (“Regulation”).2 EU). Directive 2010/31/EU requires that the objective abo- The minimum requirements regarding the energy per- ve be implemented with the use of unrealised potential of formance of buildings should be reviewed at equal periods energy savings in buildings and the reduction of significant of time not exceeding five years and, if need be, up-dated differences between the results of Member States in this for the purpose of taking into account technical progress in sector (paragraph 7 of the preamble of Directive 2010/31/ the building sector. In line with Art. 5.2 and 5.3 of Directive EU) via the improvement of the energy performance of bu- 2010/31/EU, every Member State should calculate the co- ildings, taking into account the climatic and local condi- st-optimal level of minimum requirements regarding ener- tions, indoor climate environment and cost-effectiveness gy performance with the use of comparative methodolo- (paragraph 8 of the preamble of Directive 2010/31/EU). gy framework determined in the Regulation, taking into ac- In relation to the above, Member States should deter- count individual parameters for every state, such as clima- mine minimum requirements regarding the energy perfor- te conditions and the practical availability of energy infra- mance of buildings and building elements (paragraph 10 structure, and subsequently compare the results of such of the preamble of Directive 2010/31/EU) and subsequen- calculation with the binding minimum requirements regar- tly ensure that new buildings or buildings undergoing ma- ding energy performance. jor renovations comply with these minimum requirements If the result of such a comparison indicates that the mi- (paragraph 16 of the preamble of Directive 2010/31/EU). nimum binding requirements for energy performance are Subsequent detailed objectives of Directive 2010/31/ definitely less energy efficient that the cost-optimal level of EU include an increase in the number of buildings with ne- minimum requirements regarding energy performance, a ar-zero energy demand (paragraph 17 of the preamble Member State should present the Commission with a justi- of Directive 2010/31/EU) and the provision of prospective fication of this difference, and to the degree in which such buyers and lessees of buildings or building modules with a difference is not justified, additionally present a plan sho- correct information regarding the energy performance of a wing steps aimed at a significant reduction of the differen- building, by preparing energy performance certificates (pa- ce before the next inspection of requirements regarding ragraph 22 of the preamble of Directive 2010/31/EU). energy performance. The Member State provide the Com- An example within the scope of the energy performan- ce of buildings should be set by public authorities (para- graph 24 of the preamble of Directive 2010/31/EU). Fur- thermore, Directive 2010/31/EU emphasizes the necessi- ty of levelling rules within the scope of efforts made by the Member States for the purpose of energy savings on the community real estate market (section 27 of the preamble of Directive 2010/31/EU). 2. Basic Provisions of Directive 2010/31/EU

Directive 2010/31/EU promotes the improvement of the energy performance of buildings in the Union, taking into account outdoor climate conditions, local conditions and requirements regarding indoor climate and cost effective- ness (Art. 1 of Directive 2010/31/EU). Art. 2 of Directive 2010/31/EU formulates definitions of the most important terms, including definitions of “bu- ilding”, “nearly zero-energy building”, “technical building system”, “energy performance of a building”, “building

1. Directive of the European Parliament and of the Council 2010/31/EU of May 19, 2010 on the energy performance of buildings (Official Journal of the EU L 153 of 18.06.2010, p. 13) 2. Regulation No. 244/2012 of January 16, 2012 supplementing Directi- ve 2010/31/EU establishing a comparative methodology framework for calculating cost-optimal levels of minimum energy performance for buil- dings and building units, Official Journal of the European Union L 081 of 21.03.2012, p. 18. 73 ties should be buildings with near-zero energy consump- tion. Other newly constructed buildings should be buil- Deadline for transposition dings with near-zero energy consumption after Decem- ber 31, 2020. It is necessary to emphasize that the defini- of the Directive passed tion of a building with near-zero energy consumption con- on 9.VII.2012. Directive tained in Directive 2010/31/EU is very general, where- as Member States should independently determine a de- transposed partly. tailed definition in their domestic plans aimed at the in- crease in the number of buildings with near-zero energy consumption. Such plans should also contain indirect ob- jectives for the improvement of the energy performance of new buildings for the year 2015. Member States are also required to analyse the finan- mission with reports on all entry data and assumptions cing measures and other instruments that will be adequate used for the purpose of the above calculation of the cost- in a given state to support the improvement of the energy optimal level of minimum requirements regarding energy performance of buildings and their transformation into bu- performance and the results of such calculations, at regu- ildings with near-zero energy consumption. A list of such lar time intervals not exceeding five years. The first report measures and instruments should be prepared by June was due for submission at the latest on June 30, 2012. 30, 2011 and provided to the Commission and be subse- Similar principles should apply during the performan- quently updated every three years. ce of major renovations of buildings: energy performance Directive 2010/31/EU also requires the establishment of such a building or its part subjected to renovations sho- of a system of certification for the energy performance of uld be adjusted so that it complies with the minimum requ- buildings within the scope of which energy performance irements regarding energy performance, taking into acco- certificates will be issued, determining the energy perfor- unt its technical, functional and economic potential. Fur- mance of a building, and reference values, such as the mi- thermore, for the purpose of optimizing the consumption of nimum requirements regarding energy performance. Ener- energy in building technical systems3, the requirements re- gy performance certificates should be issued for buildings garding the general energy performance of such systems or building units which are constructed, sold or leased to should be determined, along with their correct installation, a new lessee, as well as for buildings where the total utili- regulation and control (in reference to systems installed in ty surface exceeding 500 m2 is taken up by public authori- already existing buildings). ties and which are often visited by the population (on July In line with Art. 6 of Directive 2010/31/EU, eve- 9, 2015, the threshold of 500 m2 will be decreased to 250 ry Member State shall ensure that, before construction m2). Certificates of the energy performance of buildings starts, the technical, environmental and economic feasi- should be presented to potential new buyers or lessees bility of high-efficiency alternative systems such as those and provided to buyers and lessees. In the case of buil- listed below, if available, is considered and taken into ac- dings where public authorities occupy a total utility surfa- count: (i) decentralised energy supply systems based on ce exceeding 500 m2, and the building is frequently visited energy from renewable sources, (ii) cogeneration, (iii) di- by people, as well as in the case of buildings with total uti- strict or block heating or cooling, particularly where it is lity surface exceeding 500 m2, frequently visited by people, based entirely or partially on energy from renewable so- energy performance certificates issued for such buildings urces, (iv) heat pumps. should be placed in a visible place. In the case of buildings Directive 2010/31/EU also stipulates that after De- occupied by public authorities, on July 9, 2015, the thre- cember 31, 2018 new buildings occupied by public autho- shold of 500 m2 is decreased to 250 m2. rities or buildings which are the of public authori- Directive 2010/31/EU also requires regular inspections of systems used for heating the buildings (with power abo- ve 20kW) and air-conditioning systems (with power above 12 kW). Reports should be prepared and published after such inspections. Energy performance certificates for buil- dings should be issued and inspections of heating and co- oling systems should be conducted by independent, qu- alified or accredited experts. Lists of qualified or accredi- ted experts should be regularly updated and made publicly available. An independent control system for energy per- formance certificates should be established, along with re- ports from the inspections of heating and cooling systems, whereas owners and lessees of buildings or building units should have ensured access to information about methods of improvement of energy performance. Additionally, Art. 27 of Directive 2010/31/EU requires Member States to determine principles regarding sanc- tions applied in the case of the violation of the domestic provisions adopted pursuant to the directive, and to inform the Commission about such provisions at the latest by Ja- nuary 9, 2013.

3. In line with Art. 2.3 of Directive 2010/31/EU, building technical systems mean technical equipment for the heating, cooling, ventilation, hot water and lighting of a building. 74 3. Entry into force of Directive spections of heating and cooling systems, as well as re- 2010/31/EU ports from such inspections – the deadline for implemen- tation depends on whether in a given case such provisions Directive 2010/31/EU entered into force on the twentieth are applied to buildings occupied by public authorities or to day after its announcement in the Official Journal of the other buildings. In reference to buildings occupied by pu- European Union, i.e. on July 8, 2010 (Art. 30 of Directive blic authorities, such provisions should be implemented at 2010/31/EU). the latest by January 9, 2013, whereas in the case of other buildings – at the latest by July 9, 2013. 4. Deadline for implementation in the domestic law 5. Transposition to domestic law In line with Art. 28 of Directive 2010/31/EU, the deadline By adoption of a regulation of the Minister of Transport, for the transposition of its provisions to domestic legal or- Construction and Maritime Economy of 5 July, 2013, ders of the Member States is July 9, 2012. Furthermore, amending a regulation on technical conditions for buil- Art. 28 of Directive 2010/31/EU determines deadlines for dings and their location4, Art. 4 of Directive 2010/31/EU, the implementation (i.e. application) of the individual provi- which requires that Member States should determine the sions of this directive. In reference to provisions regarding: minimum requirements regarding the energy performan- (i) the definitions of basic terms, (ii) the determination of a ce of buildings or building units with a view to achieving methodology for calculating the energy performance of bu- cost-optimal levels, has been transposed to the Polish le- ildings, (iii) buildings with near-zero energy consumption, gal order. (iv) energy performance certificates of buildings (including By adoption of a regulation of the Minister of Trans- their issuance and placement in visible places), (v) inde- port, Construction and Maritime Economy of 21 June 2013 pendent experts issuing energy performance certificates amending a regulation on the detailed scope and form of for buildings and performing inspections of heating and co- a construction project5, Art. 6 of Directive 2010/31/EU has oling systems, (vi) an independent control system for ener- been transposed to the Polish legal order. The aforesaid gy performance certificates and reports from inspections article requires that every Member State shall ensure that, of heating and cooling systems, (vii) the provision of infor- before construction starts, the technical, environmental mation about various models and practices used for the and economic feasibility of high-efficiency alternative sys- improvement of energy performance to citizens, and (viii) tems such as those listed below, if available, is conside- sanctions applied in the case of a violation of the dome- red and taken into account: (i) decentralised energy supply stic provisions adopted for the purpose of the implementa- systems based on energy from renewable sources, (ii) co- tion of Directive 2010/31/EU – the implementation deadli- generation, (iii) district or block heating or cooling, particu- ne was January 9, 2013. larly where it is based entirely or partially on energy from In reference to the provisions of Directive 2010/31/ renewable sources, (iv) heat pumps. EU regarding: (i) minimum requirements regarding energy The remaining provisions of Directive 2010/31/EU performance, (ii) the cost-optimal level of minimum requ- have not been transposed to the Polish legal order in spite irements regarding energy performance, (iii) the complian- of the deadline for transposition set in the directive. ce, by new buildings, with the minimum requirements re- On April 16, 2013, the Council of Minister adopted the garding energy performance, (iv) the compliance with mi- premises of a draft act about the energy performance of nimum requirements regarding energy performance in the case of major renovations of existing buildings, (v) the re- 4. Journal of Laws item 926. quirements regarding building technical systems, (vi) in- 5. Journal of Laws item 762. 75 buildings (“Premises”) aimed at the transposition of the gulation will go and areas to which the regulation will re- provisions of Directive 2010/31/EU to the Polish legal or- fer. Therefore, at the current initial stage of legislative der.6 In line with the Premises, for the purpose of the work on the transposition of Directive 2010/31/EU, it is transposition of Directive 2010/31/EU, apart from the ad- impossible to evaluate the degree to which the planned option of an act on the energy performance of buildings act and regulations will constitute a correct transposi- and adoption of the aforesaid regulations, the provisions tion of the EU provisions. Nevertheless, relying solely on of a regulation of, regulation of the Minister of Transport, the content of the Premises, it is possible to indicate cer- Construction and Maritime Economy of April 25, 2012 tain inconsistencies. Directive 2010/31/EU requires that on the detailed scope and form of a construction project7 the energy performance certificate for a building or a buil- and regulation of the Minister of Infrastructure of July 3, ding unit or its copy is presented to the potential new les- 2003 on the logbook of a construction facility8 shall also see or buyer. Therefore, the Directive clearly differentia- be amended. tes two situations: the presentation of a certificate or its Furthermore, in line with the Premises, the transposi- copy to a potential buyer or a lessee (for the purpose of tion of Directive 2010/31/EU and entry into force of the act acquiring knowledge about energy performance of buil- on energy performance of buildings will cause the neces- dings or building units before making the purchase) and sity of issuing the following executive acts: (i) regulation the provision of the certificate to the buyer or the lessee on the methodology of determining the energy performan- (who already decided to make the purchase or lease). ce of buildings or parts of buildings, the manner of prepa- The Premises do not properly reflect these two situ- ring and the template of energy performance certificate, ations. They only refer to the provision of an energy per- (ii) regulation on the register and control of energy perfor- formance certificate or its copy to the buyer (or the lessee) mance certificates for buildings and building units and con- at the latest on the day when the agreement is concluded trol reports on inspections of heating and cooling systems, on the basis of which the transfer of ownership of the buil- and (iii) regulation on mandatory civil liability insurance of ding or its part will be made (or on the date of the conclu- a person preparing energy performance certificates for bu- sion of a lease agreement).9 The Premises do not propo- ildings or building units. It is necessary to emphasize that se provisions enabling potential buyers or lessees to obta- the adoption of the premises of the draft act constitutes in information about the energy performance of a building only an initiatory stage of the legislative process and on or a building unit in advance, before making the final deci- every subsequent stage of this process (work on the draft sion about the purchase or the lease. act on the governmental stage, work in the Sejm and the Directive 2010/31/EU constitutes a transformation of Senate, provision of the act for the President’s signatu- Directive 2002/91/EC of the European Parliament and of re) the introduction of changes is possible, even changes the Council of December 16, 2002 on the energy perfor- which may significantly influence the shape of the propo- mance of buildings10 (“Directive 2002/91/EC”). For the pur- sed solutions. pose of transposing Directive 2002/91/EC, several legal Moreover, the premises of draft acts are general do- acts were adopted (with certain delays with respect to the cuments, indicating the directions in which the future re- deadlines stipulated in the directive11), in particular two-ti-

6. http://www.transport.gov.pl/2-482d4e0d266e3-1796138-p_1.htm, draft premises of the act on energy performance of buildings, version of March 28, 2013, http://legislacja.rcl.gov.pl/lista/1/projekt/36518/katalog/36551, 7. Journal of Laws item 462. 8. Journal of Laws No. 120, item 1134. 9. Draft premises of the act on energy performance of buildings, version of March 28, 2013 http://legislacja.rcl.gov.pl/lista/1/projekt/36518/katalog/36551, p. 7. 10. Official Journal of the European Union L 001 of 04.01.2003, p.65

76 me updates of the Construction Law of July 7, 199412, an amendment of the regulation of the Minister of Infrastruc- ture on the technical conditions to be fulfilled by buildings and their location of April 12, 200213 and a regulation of the Minister of Infrastructure on the detailed scope and form of construction design of July 3, 200314, as well as three new regulations: the regulation of the Minister of Infrastructure of January 21, 2008 on the conduct of training and exami- nation for people applying for a license for preparing ener- gy performance certificates of buildings, residential premi- ses or building units constituting an independent technical and utility whole15, the regulation of the Minister of Infra- structure of November 6, 2008 on the methodology of cal- culating the energy performance of buildings and residen- tial premises or building units constituting an independent technical and utility whole and the manner of preparation and templates of energy performance certificates16 and the regulation of the Minister of Finance on mandatory civil lia- bility insurance of persons preparing energy performan- ce certificates of buildings, residential premises or building units constituting an independent technical and utility who- le of December 28, 200917. Directive 2010/31/EU introduces so many changes in comparison to Directive 2002/91/EC that for the purpose of its transposition, it is necessary to introduce, to the Po- lish legal order, completely new solutions (for example ob- ligations related to buildings with near-zero energy con- sumption which were not present in Directive 2002/91/ EC), as well as a change in the provisions introduced for the purpose of the transposition of Directive 2002/91/EC (for example a change in the existing system of evaluation of energy performance of buildings).18 6. Implementation

Assessment of implementation of Directive 2010/31/EU can be made only with regard to the provisions which have already entered into force and are binding long enough (because only on such condition practical application of re- levant provisions transposing the directive can be asses- 7. Implementation of objective sed). Whereas, the only provision transposing Directive of Directive 2010/31/EUUE 2010/31/EU that have already entered into force is a pro- vision requiring ensuring that, before construction starts, On account of the lack of a transposition of most of pro- the technical, environmental and economic feasibility of hi- visions of Directive 2010/31/EU and proper implementa- gh-efficiency alternative systems is considered and taken tion of the Directive, its purpose has not been achieved into account. It should be noted, that the Regulation of the in Poland. Minister of Transport, Construction and Maritime Econo- my of 5 July, 2013, amending regulation on technical con- 8. Procedures initiated by the European ditions for buildings and their location will enter into for- Commission ce only on 1 January 2014. Consequently, in this scope, with regard to public buildings deadline for implementation of relevant provisions of Directive 2010/31/EU has been In relation to Poland’s failure to transpose Directive exceeded by almost a year, and with regard to other buil- 2010/31/EU on time, on June January 20, 2013 the Euro- dings – by 5 months. On account of the lack of proper pro- pean Commission sent a reasoned opinion to the Polish visions in the domestic legal order, an implementation of authorities, which mentions Art. 258 of the Treaty on the Directive 2010/31/EU has not been made in Poland. Functioning of the European Union19.

11. Member States were required to introduce statutory, executive and administrative provisions indispensable for performance of Directive 2002/91/EC at the latest by January 4, 2006; meanwhile, amendment of the Construction Law aimed at transposition of this law was made on September 19, 2007 and it en- tered into force on January 1, 2009. 12. Journal of Laws of 2010, No. 243, item 1623, as amended. 13. Journal of Laws No. 75, item 690 as amended. 14. Journal of Laws No. 120, item 1133, as amended. 15. Journal of Laws No. 17, item 104, as amended. 16. Journal of Laws No. 201, item 1240, as amended. 17. Journal of Laws No. 224, item 1802. 18. Cf. Draft premises for the act on energy performance of buildings, version of March 28, 2013, http://legislacja.rcl.gov.pl/lista/1/projekt/36518/katalog/36551, s. 1, 3-4. 19. http://europa.eu/rapid/press-release_MEMO-13-583_pl.htm 77 The Fuel Quality Directive Robert Rybski

78 1. The full name of the Directive Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/ EC as regards the specification of petrol, diesel and gas- oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Direc- tive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/ EEC (OJ L 140, item 88). Hereinafter referred to as The Fuel Directive or The Directive. 2. The purpose of the Directive

The purpose of the measures provided for in the Fuel Directive is to contribute to the fulfilment of the objective specified in the Sixth Community Action Programme1 to achieve levels of air quality that do not give rise to signifi- cant negative impacts on, or risks to, human health and the environment. The Fuel Directive should also strengthen the measures provided for in the CAFE Directive2. Given that the combustion of road transport fuel is re- sponsible for around 20% of Community greenhouse gas emissions (GHG), the purpose of the Directive is to monitor and reduce GHG emissions in the fuel life-cycle3. This is to be achieved through the application of biofuels and alterna- tive fuels as well as reductions in gas flaring and venting at production sites. Promoting the application of biofuels, the Fuel Directive stresses that they have to fulfil the sustainability criteria, which are specified in the RES Directive4. Support should be provided only for those biofuels that meet these criteria5. 3. Main provisions of the Directive 3.1. Reduction of GHG emissions

The Fuel Directive supplements the already binding EU legislative acts that regulate fuel quality with a mechanism of GHG emission monitoring and reduction in connection with fuel and electricity consumption in road vehicles and non-road mobile machinery (including inland waterway vessels when not at sea), agricultural and forestry tractors, and recreational craft when not at sea. The Directive introduces the concept of “lifecycle greenhouse gas emission”, defining it as “all net emis- sions of CO2, CH4 and N2O that can be assigned to the fuel (including any blended components) or energy supplied. This includes all relevant stages from extraction or cultiva- tion, including land-use changes, transport and distribution, processing and combustion, irrespective of where those emissions occur.” Emission intensiveness is defined by calculating GHG emissions per unit of energy. Deadline for transposition Member States are obliged to ensure that, together with information on the total volume of supplied fuel, fuel of the Directive passed on 31.XII.2010. Lack of full

1. Decision No 1600/2002/EC of the European Parliament and of the Co- transposition. uncil of 22 July 2002 laying down the Sixth Community Environment Ac- tion Programme. 2. Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe. 3. See points 8 and 9 of the Preamble to the Fuel Directive. 4. See point 10 of the Preamble to the Fuel Directive and Articles 16-19 of the Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/ EC and 2003/30/EC. 5. See points 11-18 of the Preamble to the Fuel Directive. 79 suppliers provide information on lifecycle GHG emissions per litre from 1 January 2011 and 2 mg of manganese per per unit of supplied energy. Moreover, Member states have litre from 1 January 20148. to oblige suppliers to gradually reduce GHG emissions, at least by 6% and at most by 10%, by 31 December 2020. 3.4. Sustainability criteria for biofuels

3.2. Environmental specifications for fuels Biofuels discussed in the Directive shall have the same meaning as in the RES Directive. Detailed regulations The Fuel Directive obliges Member States to ensure are introduced by adding Articles 7b, 7c, 7d and 7e to the that petrol offered within their territories is marketed only Directive 98/70/EC, which refer to: sustainability criteria, when it complies with the new specifications. The Direc- the verification of compliance with the sustainability criteria tive reduces the acceptable level of aromatic hydrocar- for biofuels, the calculation of lifecycle greenhouse gas bons and increases the maximum limit for the content of emissions from biofuels and implementing measures and most of oxygenates. The permitted sulphur content has reports concerning the sustainability of biofuels. These also been significantly reduced, from the previous level of provisions remain in accordance with the RES Directive. 150 g/kg to 10 g/kg. Their purpose is to ensure that the negative impact of A new specification has been introduced for diesel oil, biofuels on biological diversity and GHG emissions is mini- which reduces the maximum content of polycyclic aromatic mised at the production stage (the RES Directive) as well hydrocarbons, sulphur (from 350 g/kg to 10 g/kg) and as during fuel blending and controls of their specification biocomponents, i.e. FAME6 (to 7%). The Directive entitles (the Fuel Directive). Member States to allow the sale of diesel oil with a FAME Similar to energy from renewable sources that is used content over 7%. in transport, biofuels that do not fulfil the sustainability cri- teria cannot be counted towards GHG emission reduction 3.3. The content of metallic additives in fuels targets imposed on fuel suppliers.

MMT7, a metallic additive, is one of the anti-knock agents 4. When the Directive came into force added to petrol in place of tetraethylead. As its impact on human health and environment remains disputable, the Pursuant to Article 5 of the Directive, it came into force on Fuel Directive obliges the European Commission to as- 25 June 2009. sess possible threats that result from a widespread use of MMT and to develop a suitable testing methodology in this 5. Deadline for implementing the Direc- respect. tive into the Polish legal system As far as MMT is concerned the Directive is rather con- servative – until the EC prepares a suitable testing method- Pursuant to Article 4 (1), Member States were obliged to ology, the MMT content cannot exceed 6 mg of manganese transpose the Directive by 31 December 2010 at the latest.

6. Fatty acid methyl ester. 7. Methylcyclopentadienyl manganese tricarbonyl. 8. See the judgement of the Court of Justice of the European Union of 8 July 2010, case number: C-343/09 (published in Official Journal C series from 28th August 2010, p. 14-15), confirming the validity of the questioned regulation that considerably limits the= content of metallic additives.

80 6. Transposition to domestic law The Fuel Directive has not been fully transposed9. In fact only a few measures have been transposed to national legislation. These gaps in transposition relate to the most significant provisions. As a result the following issues have not been regulated: ● the mechanism to monitor and reduce GHG emissions from fuel and electricity consumption by vehicles; ● environmental specifications for fuels (except for diesel); ● reduction of metallic additive content in fuels; ● the fulfilment of sustainability criteria by blended biofuels.

It should be noted that the lack of a full transposition of the RES Directive in the area of transport has an impact on the improper transposition of the Fuel Directive. This renders an assessment of the transposition of the lat- ter even more problematic. The provisions of the Fuel Directive on the sustainability criteria for biofuels are not binding. They constitute empty norms – the sustainability criteria have not been introduced into Polish legislation due to the lack of a full transposition of the RES Directive into the area of transport. The only provision that has been transposed, albeit to a certain extent improperly, refers to diesel, in particular to the FAME content. Its maximum level should not exceed 7%. However, the Directive entitles Member States to allow the sale of diesel oil with a higher FAME content. Po- land was obliged to transpose the Directive by 31 Decem- ber 2010. The Act of 27 May 2011 amending the act on the fuel quality monitoring and control system and other acts (Dz. U. No 152, item 902; No 234, item 1392) came into force on 10 August 2011. It defines a liquid fuel as a diesel oil with the maximum FAME content of 7%. Nevertheless, the specification for diesel was properly transposed only with the Regulation of the Minister of Economy of 2 Febru- ary 2012 amending the regulation on the quality require- ments for liquid fuels (Dz. U. No 0, item 136), which came into force on 15 February 2012. 3) the decarbonisation of transport fuels through their proper specification; 7. Implementation 4) the meeting of sustainability criteria for biofuels.

The lack of the Directive’s full transposition translates into Only one of the above four objectives has been partially the lack of its implementation in the Polish legal system. achieved – the specifications of fuels. During the two and a One of the provisions of the Fuel Directive was im- half years after the deadline for transposing the Directive, plemented even before the Directive was adopted. The none of the remaining three objectives was met. Due to acceptable level for sulphur content in liquid fuels was the lack of such a transposition, it is impossible to monitor defined (at 10g/kg) in Annexes I and II to the Regulation GHG emissions during the fuel lifecycle, which in turn im- of the Minister of Economy of 9 December 2008 on quality pedes their reduction. As the provisions on the sustainabil- requirements for liquid fuels (Dz. U. No 221, item 1441), ity criteria have not been defined, it is impossible to verify which came into force on January 2009. whether biofuels and biocomponents blended in Poland meet these criteria. Fuel specification, which is aimed at 8. The fulfilment of the Directive’s promoting decarbonisation, has only been introduced for objective diesel. The failure to fulfil these objectives directly translates It is possible to define four objectives that should be fulfilled into problems with meeting the main objective, i.e. improv- by the implementation of the Fuel Directive: ing air quality standards in Poland.

1) levels of air quality that do not give rise to significant 9. Infringement procedures initiated negative impacts on human health and the environ- by the European Commission ment – this is the main objective and the following three contribute to its fulfilment: 2) the monitoring and reduction of GHG emissions during The European Commission is not conducting any pro- the fuel lifecycle; cedure against Poland with respect to the Fuel Directive.

9. The Directive was to be transposed by the bill prepared by the Ministry of Economy, amending the act on the fuel quality monitoring and control system and other acts. However, the act has not been adopted. The draft is available on: http://legislacja.rcl.gov.pl/lista/2/projekt/55354 81 DyrektywaDirective on w ambientsprawie air qualityczystszego and cleanerpowietrza air fordla EuropyEurope (CAFE)

Małgorzata Smolak 82 1. The purpose of the Directive

Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe1 constitutes the main legal tool at the Community level dealing with . The CAFE Directive amends provisions on air quality so as to reduce pollution to levels that pose a minimal threat to human health and the environment as a whole and to ensure that the public are better informed about possible impacts.

The CAFE Directive repeals and amends five binding legal acts: 1. Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management; 2. Council Directive 1999/30/EC of 22 April 1999 Relat- ing to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air; 3. Directive 2000/69/EC of the European Parliament and of the Council of 16 November 2000 relating to limit values for benzene and carbon monoxide in ambient air; 4. Directive 2002/3/EC of the European Parliament and of the Council of 12 February 2002 relating to ozone in ambient air; 5. Council Decision of 27 January 1997 establishing a reciprocal exchange of information and data from networks and individual stations measuring ambient air pollution within the Member States (97/101/EC). The purpose of these changes is to incorporate the latest health and scientific developments and the experiences of the Member States. They also aim at ensuring trans- parency, clarity and administrative efficiency. Directive 2004/107/EC of the European Parliament and of the Council of 15 December 2004 relating to ar- to benzene, nitrogen dioxide, nitrogen monoxide, sulphur senic, cadmium, mercury, nickel and polycyclic aromatic dioxide, lead, PM10, carbon monoxide and ozone, the hydrocarbons in ambient air is not covered in the scope CAFE Directive maintains the norms that are specified in of the CAFE Directive. Decisions on this subject matter the aforementioned directives. will be made once sufficient experience has been gained Apart from the already binding limit values (which in relation to the implementation of this directive. stand for a level fixed on the basis of scientific knowl- The main objectives of the CAFE Directive are laid edge, with the aim of avoiding, preventing or reducing down in Article 1 and include: harmful effects on human health and/or the environment 1) defining objectives for ambient air quality designed as a whole, to be attained within a given period and to avoid, prevent or reduce harmful effects on human not to be exceeded once attained), the CAFE Directive health and the environment as a whole; introduces the terms of a target value (i.e. a level fixed 2) assessing the ambient air quality in Member States on with the aim of avoiding, preventing or reducing harm- the basis of common methods and criteria; ful effects on human health and/or the environment as a 3) obtaining information on ambient air quality in order to help combat air pollution and nuisance and to moni- tor long-term trends and improvements resulting from national and Community measures; 4) ensuring that such information on ambient air quality is made available to the public; 5) maintaining air quality where it is good and improving it in other cases; 6) promoting increased cooperation between the Member TerminDeadline transpozycji for transposition Dyrektywy States in reducing air pollution. ofminął the Directive11.VI.2010. passed 2. The main provisions of the Directive onTransponowana 11.VI.2010. Directive The main change to the already binding legislation is the introduction of air quality norms for PM 2.5. With respect transposedz opóźnieniem partly andi fragmentarycznie. with a delay. 1. Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ L 152, 11.06.2008, p. 1) (hereinafter The CAFE Directive). 83 whole, to be attained where possible over a given period) all appropriate measures have been taken at the national, and a long-term objective (i.e. a level to be attained in the regional and local levels to meet the deadlines. long term, save where not achievable through proportion- The CAFE Directive also introduces new mechanisms ate measures, with the aim of providing effective protec- for air quality management in zones and agglomera- tion to human health and the environment). tions. It obliges Member States to designate competent The Directive defines limit values and the time in authorities and bodies responsible for the following: the which they should be attained for sulphur dioxide, nitro- assessment of ambient air quality; the approval of meas- gen dioxide, benzene, carbon monoxide, lead, PM10 urement systems (methods, equipment, networks and and PM 2.5. Moreover, target values are provided for laboratories); ensuring the accuracy of measurements; ozone and PM2.5, while a long-term objective is given for the analysis of assessment methods; the coordination ozone. For atmospheric concentrations of sulphur dioxide on their territory of Community-wide quality assurance and nitrogen dioxide the Directive defines alert thresh- programmes which are organised by the Commission; olds, while for PM2.5 it sets a national exposure reduc- cooperation with the other Member States and the Com- tion target. mission and designation of zones and agglomerations Article 22 of the Directive introduces the possibility throughout their territory. The CAFE Directive defines of postponing the attainment of deadlines and speci- the system for air quality assessment (based on fixed fies exemptions from the obligation to apply certain limit measurements, modelling techniques and indicative values – three years for PM10 and five years for nitrogen measurements as well as criteria for the distribution and monoxide and benzene. These decisions are made on the number of measurement points). the basis of the conditions specified by the European Pursuant to Article 13 (1) of the CAFE Directive, Commission and an assessment conducted by this body. Member States have to ensure that, throughout their Where, in a given zone or agglomeration, conformity with zones and agglomerations the limit values that are the limit values for nitrogen dioxide or benzene cannot be specified in the Directive are not exceeded. Where, in achieved within the deadlines, a Member State may post- given zones or agglomerations, the levels of pollutants in pone those deadlines by a maximum of five years, i.e. to ambient air exceed any limit value or target value, plus the end of 2014, for that particular zone or agglomera- any relevant margin of tolerance in each case, Member tion, on condition that an air quality plan is established. States have to ensure that air quality plans are estab- Where, in a given zone or agglomeration, conformity lished for those zones and agglomerations in order to with the limit values for PM10 cannot be achieved be- achieve the related limit value or target value (Article 23). cause of site-specific dispersion characteristics, adverse Air quality plans should set out appropriate measures, so climatic conditions or transboundary contributions, a that the period when limit values are exceeded can be Member State is exempt from the obligation to apply those kept as short as possible. limit values until 11 June 2011 provided that an air quality Moreover, where, in a given zone or agglomeration, plan is established and that the Member State shows that there is a risk that the levels of pollutants will exceed one or more of the alert thresholds, Member States should draw up action plans indicating the measures to be taken in the short term in order to reduce the risk or duration of such an exceedance (Article 24). Where any alert thresh- old, limit value or target value plus any relevant margin of tolerance or long-term objective is exceeded due to significant trans-boundary transport of air pollutants or their precursors, the Member States concerned have to cooperate and, where appropriate, draw up joint activi- ties in order to remove such exceedances through the application of appropriate but proportionate measures. The CAFE Directive obliges Member States to inform the public and relevant organisations about ambient air quality, postponement decisions and exemptions from the obligation to attain limit values as well as air quality pro- grammes. Moreover, Member States have to make avail- able to the public annual reports for all pollutants covered by the CAFE Directive (Article 26). Member States are also obliged to ensure that information on ambient air quality is made available to the Commission within the required timescale (Article 27). 3. When the Directive came into force

The Directive came into force on the day when it was published in the Official Journal of the European Union, i.e. 11 June 2008. 4. Deadline for transposing the Directive Member States were obliged to bring into force the laws, regulations and administrative provisions necessary to com- ply with the CAFE Directive before 11 June 2010. Moreover, 84 Member States had to ensure that a sufficient number of 25 August 2012; urban background measurement stations of PM2.5 neces- 4) The Regulation of the Minister of the Environment of sary for the calculation of the average exposure indicator is 11 September 2012 on air protection programmes and established at the latest by 1 January 2009. short-term action plans (Dz. U. of 2012, item 1028) came into force on 3 October 2012; 5. Transposition 5) The Regulation of the Minister of the Environment of 10 September 2012 on the scope and manner of provi- The Act of 13 April 2012 amending the Act on Environ- sion of information on air pollution (Dz. U. of 2012, mental Protection Law and other acts came into force item 1034) came into force on 3 October 2012; as late as 28 May 20122. In footnote 1 it states that 6) The Regulation of the Minister of the Environment of “to the extent of its regulations, it implements Direc- 13 September 2012 on the calculation of average ex- tive 2008/50/EC of the European Parliament and of posure indicators and the verification of the fulfilment the Council of 21 May 2008 on ambient air quality and of the exposure concentration obligation (Dz. U. of cleaner air for Europe (OJ L 152, 11.06.2008, p. 1)”. 2012, item 1029) came into force on 3 October 2012; This wording suggests that, albeit with nearly a two- 7) The Regulation of the Minister of the Environment of year-long delay, the CAFE Directive was fully trans- 14 August 2012 on the national exposure reduction posed into Polish legislation by the Act of 28 May 2012. target (Dz. U. of 2012, item 1030) came into force on 3 However, this is not the case. October 2012. The new legal measures that implement the CAFE Direc- First, the relevant regulations came into force later, namely: tive into Polish legislation provide for the following: 1) The Regulation of the Minister of the Environment of ● the introduction of definitions for: national exposure 24 August 2012 on the levels of selected substances reduction target, national average exposure indicator, in ambient air (Dz. U. of 2012, item 1031) came into urban background locations, target value, information force on 15 October 2012; threshold, exposure concentration obligation, envi- 2) The Regulation of the Minister of the Environment of ronmental quality norm, average exposure indicator 13 September 2012 on the assessment of the concen- for agglomerations and for cities in excess of 100,000 tration of substances in ambient air (Dz. U. of 2012, inhabitants, contribution from natural sources; item 1032) came into force on 3 October 2012; ● the specification of principles with regard to PM2.5: 3) The Regulation of the Minister of the Environment of air quality assessment, calculation of indications, 2 August 2012 on the zones in which air quality is as- verification of the fulfilment of the exposure concentra- sessed (Dz. U. of 2012, item 914) came into force on tion obligation and the national exposure reduction

2.  The Act of 13 April 2012 amending the Act on the Environmental Protection Law and other acts (Dz.U. of 2012, item 460, hereinafter referred to as the Act of 28 May 2012). 85 air protection programmes have been adopted and where air quality norms have been exceeded, the Board of the Voivodship is obliged to prepare a review of the programme within three years of the day on which the resolution of the Voividship Parliament on the air protec- tion programme was adopted. The three-year-long period during which air quality norms are exceeded clearly will not ensure that the period with exceedances is as short as possible. Secondly, Article 30 of the CAFE Directive obliges Member States to lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to the Directive and take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Act of 28 May 2012 introduces to the Act of 27 April 2001 a chapter on financial penalties for infringements in the preparation and implementa- tion of air protection programmes and short term action plans. Pursuant to Article 315a, the body guilty of the infringement may be fined with a penalty of PLN 10,000 – 500,000 when: 1) it fails to implement control requirements with respect to the deadlines for the adoption of the air protection programmes and short term action plans, 2) it fails to comply with the statutory deadline for the adoption of the air protection programmes and short term action plans, target, introduction of a new air quality norm for PM2.5 3) it fails to comply with the deadlines for the implemen- concentrations by means of target and limit values, tation of the measures specified in the air protection establishment of a measurement network for PM2.5, programmes and short term action plans. development and operation of the air quality monitoring Therefore, this provision refers only to the preparation of and assessment system with regard to PM2.5 as well air protection programmes and short-term action plans. as a short term forecast system; No measures provide for penalties with respect to the ● new definitions of zones where air quality is to be as- implementation of the aforementioned programmes and sessed and the division of the country into new zones plans. The lack of a system of penalties and other meas- (their number was reduced from 170 to 46); ures that ensure the implementation of air protection ● the introduction of new principles and requirements for programmes and short-term action plans constitutes a air protection programmes and short term action plans; significant flaw in the transposition of the CAFE Direc- ● the introduction of a “derogation” measure, which al- tive. As a consequence, the Directive has not been fully lows the postponement of the deadline for limit values transposed, and its objectives are jeopardised. with regard to nitrogen dioxide and benzene, following a positive decision from the European Commission in 6. Implementation this respect. Due to the delayed and faulty transposition of the It should, however, be noted that the transposition of the provisions of the CAFE Directive on air protection pro- CAFE Directive contains significant flaws. In Article 23 grammes, this legal act cannot be fully implemented. (1), the second sentence of the CAFE Directive, stating Despite the fact that the air protection programmes and that “in the event of exceedances of those limit values short term action plans, which contain information and for which the attainment deadline has already expired, measures specified in the Directive, should come into the air quality plans shall set out appropriate measures, force by 11 June 2010, plans that are prepared according so that the exceedance period can be kept as short as to the old rules are still binding in Poland (as of Septem- possible.” should be regarded as improperly transposed ber 2013). Pursuant to the schedule, defined in Article 91 into Polish legislation. The national provisions on air pro- of the Act on Environmental Protection Law, the air pro- tection programmes do not require these documents to tection programmes have to be adopted within 18 months ensure that the period in which limit values are exceeded of the day on which the voivodship environmental protec- is reduced to the minimum. tion inspector submits the results of the assessment of The Regulation of the Minister of the Environment on pollutant concentrations in ambient air and information air protection programmes and short term action plans with regard to the classification of zones. states that air protection programmes have to comply The inspector is obliged to assess pollutant concen- with “a schedule of measures and expenses, including trations in ambient air in respective zones for a particular respective medium term measures, drawn up for a period year by 30 April the following year. Pursuant to the Act of no longer than five years, and long term measures, of 28 May 2012, new air protection programmes will be for a period of no longer than ten years,” which clearly therefore adopted as late as November 2013. As these counters the purpose of Article 23 of the CAFE Direc- programmes are being prepared, it is impossible to assess tive. Moreover, the amendments to the Act on Environ- the implementation of the provisions referring to these mental Protection Law, introduced by the Act of 28 May programmes. However, due to the faulty transposition of 2012, stipulate that with respect to the zones for which Article 23 of the CAFE Directive, it may be assumed that 86 these programmes will not ensure that the period in which the limit values are exceeded is minimised. It is worth noting that despite the fact that Poland did In 2012, the daily limit value not transpose the CAFE Directive, on 30 October 2008, Stworzenie warunków the Polish government sent notifications to the European fordla PM10 zwiększenia has been zatrud exceeded- Commission on the derogation from the obligation to in Polandnienia i inrozwoju 38 of the regional 46 - achieve limit values for PM10 for 83 zones within the nego, zwłaszcza na ob- country (based on Article 22 (2) of the CAFE Directive). areas, and the annual value Only four zones were granted the requested derogation szarach with respect to PM10. Next, the Polish government, on 2 in 18 areas. September 2010 and on 30 September 2010, sent noti- fications on the exclusion of deadlines for the PM10 limit values in zones located in the Śląskie and Małopolskie Voivodships and notifications on the postponement of deadlines for NO2 limit values in one zone of the Mazow- 8. Infringement procedures initiated ieckie Voividship. The European Commission voiced its by the European Commission reservations with regard to the notifications submitted by the Republic of Poland.3 On 31 January 2012 the European Commission filed a 7. The fulfilment of the Directive’s complaint to the Court of Justice of the European Union, objectives where it accused Poland of failing to transpose into national legislation and bring into force all the neces- sary provisions required by the CAFE Directive. At the The main objective of the CAFE Directive, i.e. the pre- same time the European Commission filed a motion to vention and reduction of the negative impact of air pol- impose a temporary financial penalty on Poland of EUR lution on human health and the environment as a whole, 71,521.38 a day.5 As Poland informed the European has not been achieved in Poland. This results from the Commission that the Directive had been transposed, the delayed and partially flawed transposition of the CAFE Commission withdrew the complaint in case C-48/12. As Directive into Polish legislation and its subsequent de- a result, on 8 January 2013, the President of the Court layed implementation. Obligations resulting from Article ordered that the case be removed from the register. 13 of the CAFE Directive, which should ensure that limit Moreover, the European Commission decided to values are not exceeded for respective pollutants, consti- institute infringement proceedings with regard to the tute the main area of infringement. zones where limit values for PM10 were exceeded and An assessment prepared for 2011 shows that admis- for which derogations were not granted due to the Com- sible concentrations were exceeded in each zone for at mission’s reservations with respect to the notifications least one pollutant. As a result, zones were classified as submitted by Poland. The proceedings were initiated class C with respect to this pollutant. In class C zones on the basis of Article 258 or 260 of the Treaty on the it is required to conduct measures that are aimed at at- Functioning of the European Union (former Article 226 taining limit or target values for atmospheric pollutants and 228 of the TEC) and are in progress (infringement (e.g. within air protection programmes). These measures No 2008/2199).6 should be carried out for areas and substances with respect to which the threshold values were exceeded. A large number of zones was classified as C with respect to PM10. In 2011 as many as 42 zones out of 46 were categorised as class C (around 91%). In each of these zones limit values for daily concentrations of PM10 were exceeded. In some of them (55%) the average an- nual limit values were exceeded as well. A large number of zones were classified as C with respect to PM2.5. This substance was taken into consideration in the air quality assessment in Poland for the second time. Threshold values that categorise zones as class C (the limit value augmented by the tolerance margin) were exceeded in 21 zones (around 46% of all zones). Six zones were categorised as class B. The total number of zones in class B and C (i.e. where limit values were exceeded) was similar as in the assessment for 2010. The results of the final assessment for 2011, based on the criteria aimed at health protection, are similar to the results of the final air quality assessment for 2010, which was conducted for the same division into zones.4

3. http://powietrze.gios.gov.pl/gios/site/content/derogations_postponement 4. Ocena jakości powietrza w strefach w Polsce za rok 2011, http://powie- trze.gios.gov.pl/gios/site/air/quality/type/R?year=12 5. European Commission v Republic of Poland, case C-48/12, 2012/C 80/19. OJ C 80/12, 17.03. 2012. Available at: http://eur-lex.europa.eu/Le- xUriServ/LexUriServ.do?uri=OJ:C:2012:080:0012:0013:PL:PDF. 6. http://powietrze.gios.gov.pl/gios/site/content/derogations_postponement 87 DyrektywaDirective w sprawie on emisjiiindustrial przemysłowych emissions1 Marcin Stoczkiewicz

88 1. The Objective of the Directive The Directive of the European Parliament and of the Council 2010/75/EU of November 24, 2010 on industrial emissions, hereinafter referred to as “Directive 2010/75/ EU” is a legal act integrating and modifying seven other TerminDeadline transpozycji for transposition Dyrektywy directives, in particular Directive 2008/1/EC (concerning integrated pollution prevention and control)2 and Directive minąłpassed 7.I.2013. on 7.I.2013. 2001/80/EC (on the limitation of emissions of certain pol- lutants into the air from large combustion plants)3. NieNo transposition. została transponowana. The most general objectives of Directive 2010/75/EU are determined in section 44 where ensuring a high level of environmental protection and the improvement of envi- ronmental quality is listed, which constitutes a reference to Art. 191 of the Treaty on the Functioning of the European The scope of application of Directive 2010/75/EU is Union. Section (2) of Directive 2010/75/EU indicates that very broad; it is determined in Art. 2 by the indication of the objective of this legal act is to prevent pollution which types of industrial activities which cause pollution indicated results from industrial activities, its reduction and, as far in its Schedules II – IV. The key provision is contained in as possible, elimination in line with the “polluter pays” prin- Art. 4.1, the first paragraph of Directive 2010/75/EU, in ciples and the principle of pollution prevention. According line with which the Member States shall take the neces- to section (3) of Directive 2010/75/EU, in order to obtain sary measures to ensure that no installation or combustion the above-stipulated objective, each installation should be plant, waste incineration plant or waste co-incineration operated only when it has a relevant permit; according to plant is operated without a permit. The Member States section (12), the conditions of the permit should rely on the shall grant permits if the installation complies with the best available techniques. requirements of Directive 2010/75/EU (Art. 5.1) and shall Art. 1 of Directive 2010/75/EU stipulates that the take the necessary measures to ensure that the permit directive lays down rules on the integrated prevention and conditions are complied with (Art. 8.1). The last obliga- control of pollution arising from industrial activities. The tion encompasses, in particular, a sanction of suspension general objectives of Directive 2010/75/EU are to be met of the operation of an installation where the conditions via integrated prevention and control of pollution; preven- of a permit are breached, posing immediate danger to tion and control consist in permitting the operation of only human health or threaten to cause an immediate sig- those installations which, thanks to the application of best available practices, comply with the volume of emissions laid down in the directive. 2. Main Provisions of Directive 2010/75/EU On account of the limited scope of this study, only the most important elements of the regulations regarding integrated pollution prevention and control in the European Union introduced by Directive 2010/75/EU are discussed in this study. The directive is extremely important for the imple- mentation of the European Union’s environmental policy within the scope of energy. As indicated in section 29 large combustion plants contribute greatly to emissions of polluting substances into the air resulting in a significant impact on human health and the environment, therefore “it is necessary to set more stringent emission limit values at the Union level for certain categories of combustion plants and pollutants.” Directive 2010/75/EU significantly tightens the emission standards of SO2, NOx and dusts and introduces an obligation of ongoing measurement of the concentration of such pollution for power sources greater than 100 MWt and an obligation of the measurement of the total emission of mercury in coal-fuelled sources.

1. Directive of the European Parliament and of the Council 2010/75/EU of November 24, 2010 on the industrial emissions (integrated pollution pre- vention and control) (transformed version) Official Journal of the EU L 334 of December 17, 2010 p. 2. Directive of the European Parliament and of the Council 2008/1/EC of Ja- nuary 15, 2008 concerning integrated pollution prevention and control, Of- ficial Journal L 24 of 29.1.2008, p. 3. Directive of the European Parliament and of the Council 2001/80/EC of October 23, 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants Official Journal L 309 of 27.11.2001, p. 1. 89 nificant adverse effect upon the environment (Art. 8.2, emission values ensuring emission levels related to best second paragraph). Emissions of greenhouse gases, available techniques determined in decisions concerning encompassed by the scope of the application of Directive conclusions related to BATs are not exceeded (Art. 15.2 2003/87/EC are in principle excluded from the scope of and 15.3). The procedure for issuing permits takes into conditions determined in the permit (Art. 9.1), yet through account access to information, the participation of society the tightening of emission standards for fuel combustion in the decision-making process, access for the interested facilities, Directive 2010/75/EU indirectly contributes to community (including non-governmental organizations) to the implementation of the climate policy of the European the , as well as an evaluation of trans-boundary Union. Industrial installations encompassed by the scope effects (Art. 24 – 26). of Directive 2010/75/EU have to comply with very strict Chapter III of Directive 2010/75/EU contains detailed environmental protection standards; the Member States provisions regarding combustion facilities with power have to ensure that such installations do not cause any exceeding 50 MW, irrespective of the fuel used. Art. 30.2 significant pollution and the best available techniques of Directive 2010/75/EU constitutes a general obligation of (BATs) are applied. Directive 2010/75/EU has significantly compliance with permissible emission values by combus- extended the provisions regarding BATs, including the tion facilities. Emission Limit Values were determined in introduction of an obligation of including BATs as refer- detail in parts 1 and 2 of extensive Schedule V to Direc- ences to determine permit conditions (Art. 14.3). Permis- tive 2010/75/EU. In line with Directive 2010/75/EU, both sible emission values rely on the best available practices existing and new combustion facilities should comply with and a competent authority determines that permissible tightened emission standards as of January 1, 2016. In the case of the latter, the emission standards are particularly restrictive. The EU legislator has foreseen four ways of meeting such standards on the part of large combustion plants. The first option consists in the adjustment of emission from such sources to permissible emission standards by January 1, 2016 (Art. 30.2 second paragraph of Directive 2010/75/EU). The second option consists in making use of the mechanism of gradual reduction of emission between 2016 and 2020 by including the installation in the Transi- tional National Plan (TNP) which may only include “older” combustion facilities, i.e. facilities which were granted their first permit before November 27, 2002 and which were commissioned not later than on November 27, 2003 (Art. 32 of Directive 2010/75/EU). The third option consists in exempting combustion plants from compliance with a permissible emission volume between January 1, 2016 and December 31, 2023 on the condition of limiting the operation of the plant to a maximum of 17,500 hours (Art. 33 of Directive 2010/75/EU). The fourth option consists in turning off, as of January 1, 2016, combustion plants which are not included in the TNP and do not comply with permissible emission standards on that date. The above- indicated general options are secured by very detailed conditions and many exceptions are foreseen with respect to the principles above. 3. Date of Entry into Force of Directive 2010/75/EU Pursuant to Art. 83 of Directive 2010/75, it entered into force on January 6, 2011. 4. Deadline for Transposition of Direc- tive 2010/75/EU to National Law

In line with Art. 80.1 first sentence of Directive 2010/75/ EU, the Member States were required to introduce the statutory provisions, as well as the executive and admin- istrative provisions indispensable for the performance of a definite majority of the provisions of this Directive by January 7, 2013. In line with Art. 80.1 second sentence, the application of such provisions should take place by the same deadline. Art. 82 of Directive 2010/75/EC contains a very extensive determination of transitional provisions which determine different (extended) deadlines for the ap- plication (but not transposition) of its detailed provisions in reference to individual categories of installations. 90 5. Transposition and 2023, with standards determined in Schedule V.I of Directive 2010.75/EU. Such installations shall have to Directive 2010/75/EU had not been transposed into Polish comply with emission standards determined in the permit law by January 7, 2013 and this status persisted until the for installations which shall be applicable on December date of completion of the work on this study (September 31, 2015 and additionally comply with annual maximum 14, 2013). On the Internet sites of the Ministry of the emission thresholds determined in the TNP. The draft TNP Environment, a draft act on the amendment of the Envi- includes, in total, 75 combustion plants. The European ronmental Protection Law and certain other laws was pub- Commission has not yet issued (by September 2013) a lished (draft 2012-07-27), which, according to reference 1) decision on the draft TNP. of the amended Environmental Protection Law is sup- posed to constitute the transposition of Directive 2010/75/ 7. The Implementation of the Objective UE into Polish law.4 An analysis of this draft significantly of Directive 2010/75/EU exceeds the frame of this study.

6. Implementation The objective of Directive 2010/75/EU consisting in the improvement of the quality of the environment via a In relation to the absence of a timely transposition of Di- significant reduction in industrial pollution is to be met rective 2010/75/EU into Polish law, in principle there is no via integrated prevention and control of pollution; this implementation into the Polish legal arena. consists in allowing only those installations which comply However, making use of the facultative derogation with permissible emission values to operate. The imple- determined in Art. 32 of Directive 2010/75/EU, the Council mentation of the objective of Directive 2010/75/EU is of Ministers adopted a draft Transitional National Plan by significantly threatened on account of the absence of its means of resolution No. 212/2012 on December 27, 2012. timely transposition and implementation. The objective of The Ministry of the Environment submitted the draft TNP to the directive will be particularly difficult to meet in the case the European Commission within the deadline stipulated in of energy installations. As indicated by Blumberg New En- Art. 32.5, i.e. by December 31, 20125. In line with Art. 32.5 ergy Finance, combustion facilities which exist in Poland of Directive 2010/75/EU, the European Commission has with a total power of 33 GW do not comply with emission 12 months to indicate reservations and approve the plan or standards of Directive 2010/75/EU8. reject it. The evaluation of the draft TNP takes into account the provisions of the Directive discussed and the Executive 8. Proceedings Initiated Decision of the Commission of February 10, 2012 establish- by the European Commission ing provisions regarding transitional national plans, referred to in the directive of the European Parliament and of the On account of the absence of a transposition of Directive Council 2010/75/EU on industrial emissions6. 2010/75/EU into domestic law, the European Commission The draft TNP was published at the Internet site of commenced the procedure determined in Art. 258 of the the Ministry of the Environment7. The combustion plants Treaty on the Functioning of the European Union9. included in the TNP will not have to comply, between 2016

4. http://ippc.mos.gov.pl/ippc/custom/Ustawa_mr.pdf 5. http://www.mos.gov.pl/artykul/4903_ppk/19838_informacja_na_temat_podjecia_uchwaly_rady_ministrow_212_2012_w_sprawie_przyjecia_projektu_przej- sciowego_planu_krajowego.html 6. Executive Decision of the Commission of February 10, 2012 establishing provisions regarding transitional national plans referred to in Directive of the Euro- pean Parliament and of the Council 2010/75/EU on industrial emissions, Official Journal EU L 52 of February 24, 2012, p. 13. http://eur-lex.europa.eu/LexU- riServ/LexUriServ.do?uri=OJ:L:2012:052:0012:0025:PL:PDF 7. http://www.mos.gov.pl/g2/big/2012_11/d84e3819d24702d732f1c4fc7419bc50.pdf 8. Blumberg New Energy Finance, European Power Research Note, Industrial Emissions Directive. 18 October 2012, p. 1 and 7. 9. http://ec.europa.eu/environment/air/pollutants/stationary/ied/transposition.htm

91 Directive on environmental impact assessment

Bolesław Matuszewski

92 1. Full name of the Directive Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of DyrektywaDirective transposed pomimo the effects of certain public and private projects on the en- uchybień transponowana vironment (OJ L 26, 28.01.2012, p. 1) (hereinafter referred correctly. to as The EIA Directive or The Directive). prawidłowo. 2. The purpose of the Directive

\The purpose of the Directive is to lay down general prin- ciples for the assessment of environmental effects, with a view to supplementing and coordinating development consent procedures governing public and private projects which are likely to have a major effect on the environ- ment. The Directive should also ensure that development consents for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. 3. Main provisions of the Directive

Considering the purpose of the Directive, Article 1 defines the scope of this legal act. It states that the Directive ap- plies to the assessment of the environmental effects of those public and private projects that are likely to have significant effects on the environment. In the case of projects which, pursuant to Article 4, In Article 2, the Directive imposes on Member States are to undergo an environmental impact assessment in the obligation to adopt all measures necessary to ensure accordance with the Directive, Member States are obliged that, before a consent is given, projects likely to have to adopt necessary measures to ensure that the developer significant effects on the environment by virtue, inter alia, supplies, in an appropriate form, the information specified of their nature, size or location are made subject to a in Annex IV inasmuch as: requirement for development consent and an assessment a) the Member States consider that the information is with regard to their effects. relevant to a given stage of the consent procedure and Pursuant to Article 3, the environmental impact as- to the specific characteristics of a particular project or sessment (EIA) has to identify, describe and assess in an type of project and of the environmental features likely appropriate manner, in the light of each individual case to be affected; and in accordance with the principles laid down in the b) the Member States consider that a developer may rea- Directive, the direct and indirect effects of a project on the sonably be required to compile this information having following factors: regard, inter alia, to current knowledge and methods of assessment.\ a) human beings, fauna and flora; b) , water, air, climate and the ; Member States are obliged to take the necessary meas- c) material assets and the cultural heritage; ures to ensure that, if the developer so requests before d) the interaction between the factors referred to in points submitting an application for a development consent, the (a), (b) and (c). competent authority should give an opinion on the infor- mation to be supplied by the developer. In Article 4, the Directive specifies two types of projects: The Directive specifies the minimum scope of informa- (i) those for which an environmental impact assessment, tion that has to be provided by the developer. It includes based on the principles laid down in the Directive, is among other things: (i) a description of the project, always conducted (enumerated in Annex I to the Directive) comprising information on the site, design and size of the and (ii) those for which such an assessment is conducted project; (ii) a description of the measures envisaged in only when certain conditions are met (enumerated in An- order to avoid, reduce and, if possible, remedy any signifi- nex II to the Directive). As far as projects from Annex II are cant adverse effects; (iii) the data required to identify and concerned, Member States decide whether they should be assess the main effects which the project is likely to have assessed in accordance with the principles stipulated in on the environment; (iv) an outline of the main alternatives the Directive. They determine it through: studied by the developer and an indication of the main a) case-by-case determination or reasons for his choice, taking into account the environ- b) thresholds or criteria set by the Member State. mental effects. Article 6 of the Directive stipulates that Member States Member States may decide to apply both procedures are also obliged to designate the authorities to be con- referred to in points (a) and (b). sulted, either in general terms or on a case-by-case basis. The relevant selection criteria set out in Annex III They also have to take the measures necessary to ensure should be taken into account when a case-by-case exami- that these bodies are given an opportunity to express their nation is carried out or thresholds or criteria are set for the opinion on the information supplied by the developer and aforementioned purpose. on the request for a development consent. 93 The Directive attaches significant importance to the comments and opinions when all options are open to the proper provision of information to the public1 and the public competent authority or authorities, before the decision on concerned2 about projects that fall under the environmen- the request for development consent is taken. tal impact assessment procedure. To this end, the Direc- The Directive also takes account of projects that may tive obliges Member States to inform the public, whether have a significant environmental impact that would occur by public notices or by other appropriate means, such in other Member States than the country where the project as electronic media where available, about the following is implemented. Where a Member State is aware that a matters in the environmental decision-making procedures project is likely to have significant effects on the environ- referred to in Article 2(2) of the Directive3, at the latest, ment in another Member State or where a Member State as soon as information can reasonably be provided: (i) likely to be significantly affected so requests, the Member the request for development consent; (ii) the fact that the State in whose territory the project is intended to be car- project is subject to an environmental impact assessment ried out has to send to the affected Member State as soon procedure and, where relevant, the fact that Article 7 of as possible and not later than when informing its own pub- the Directive applies; (iii) details of the competent authori- lic, inter alia: (i) a description of the project, together with ties responsible for taking the decision, those from which any available information on its possible transboundary relevant information can be obtained, those to which impact; (ii) information on the nature of the decision which comments or questions can be submitted, and details of may be taken. the time schedule for transmitting comments or questions; Pursuant to Article 9, when a decision to grant or (iv) the nature of possible decisions or, where there is one, refuse a development consent has been taken, the com- the draft decision; (v) an indication of the availability of the petent authority or authorities inform the public thereof in information gathered pursuant to Article 5 of the Direc- accordance with the appropriate procedures and make tive; (vi) an indication of the times and places at which, available to the public among other things the following and the means by which, the relevant information will be information: made available; (vii) details of the arrangements for public a) the content of the decision and any conditions attached participation. thereto; Member States have to ensure that among other b) having examined the concerns and opinions expressed things the following information is made available to the by the public concerned, the main reasons and con- public concerned within a reasonable timeframe: (i) a siderations on which the decision is based, including description of the project comprising information on the information about the public participation process. site, design and size of the project; (ii) a description of the measures envisaged in order to avoid, reduce and, if The same information should be made available to other possible, remedy significant adverse effects; (iii) the data Member States where the project may have significant required to identify and assess the main effects which the environmental impacts. project is likely to have on the environment; (iv) an outline As far as non-governmental organisations (NGOs) are of the main alternatives studied by the developer and an concerned, Article 11 of the Directive is of key significance. indication of the main reasons for his choice, taking into It obliges Member States to ensure that, in accordance account the environmental effects. with the relevant national legal system, members of the Ensuring the public concerned have an opportunity public concerned: to participate in consent procedures is treated with equal (a) having a sufficient interest, or alternatively; importance. Article 6 (4) of the Directive stipulates that the (b) maintaining the impairment of a right, where the admin- public concerned have to be given early and effective op- istrative of a Member State requires this portunities to participate in environmental decision-making as a precondition; procedures and, for that purpose, are entitled to express have access to a review procedure before a court of law

1. Pursuant to Article 1 (2) (d) of the Directive, “public” means one or more natural or legal persons and, in accordance with national legislation or practice, the- ir associations, organisations or groups. 2. Pursuant to Article 1 (2) (e) of the Directive, “public concerned” means the public affected or likely to be affected by, or having an interest in, the environmen- tal decision-making procedures referred to in Article 2(2). For the purposes of this definition, non-governmental organisations promoting environmental pro- tection and meeting any requirements under national law shall be deemed to have an interest. 3. Decisions issued within existing procedures for consent to projects in the Member States, or, failing this, within other procedures or within procedures to be established to comply with the aims of the Directive.

94 or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participa- tion provisions of this Directive. What constitutes a sufficient interest and the impair- ment of a right is determined by the Member States, con- sistently with the objective of giving the public concerned wide access to justice. To that end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2) should be deemed sufficient. Such organisations are also deemed to have rights capa- ble of being impaired. 4. When the Directive came into force

The Directive came into force on 17 February 2012. 5. Deadline for implementing the Directive in the Polish legal system

The Directive does not specify any deadline for adopt- ing national measures aimed at its implementation, as it codifies existing legal solutions that have already been implemented. 6. Transposition

In the context of the Directive’s transposition into national legislation, it should be noted that this legal act attempts to improve the uniformity of the EU provisions on environ- submission of comments and motions; (ii) the term “public mental impact assessment of projects that are included concerned” and (iii) the term “development consent”. Due in the Council Directive 85/337/EEC of 27 June 1985 on to these failures the measures related to the EIA proceed- the assessment of the effects of certain public and private ings did not remain in accordance with the Directive. projects on the environment. The latter was amended by: Considering the above, it may be concluded that the (i) Council Directive 97/11/EC, (ii) Directive 2003/35/EC of current provisions of the EIA Act as well as regulations the European Parliament and of the Council and (iii) Direc- issued on their basis should properly transpose Directive tive 2009/31/EC of the European Parliament and of the 2011/92/EC. Council (OJ L 175, 5.07.1985, p. 40, as amended; Official The EIA Act transposes the definitions provided for in Journal of the European Union, Polish special edition, the Directive, including the terms: “development consent” chapter 15, v. 1, p. 248, as amended). and “public concerned”, i.e. the terms about which the This is significant, as national provisions on envi- European Commission expressed serious reservations. In ronmental impact assessments were adopted when the Polish legislation “development consent” refers to two de- Directive 85/337/EEC was still binding. They are con- cisions, i.e. a decision on the environmental requirements tained in the Act of 3 October 2008 on the provision of for a consent to implement a project (hereinafter referred information on the environment and its protection, public to as a decision on environmental requirements) and a participation in environmental matters and environmental final decision on a consent to initiate the implementation impact assessments (Dz. U. of 2008, No 199, item 1227, of a project. Given that the Directive defines a “develop- as amended) (hereinafter referred to as The EIA Act). The ment consent” as “a decision of the competent authority same holds true for regulations issued on the basis of or authorities which entitles the developer to proceed with the EIA Act. Therefore, when assessing the current state the project,” the EIA Act rightly imposes an obligation to of the Directive’s transposition into Polish legislation it is conduct a separate EIA for each decision. One EIA should helpful to look at the circumstances in which these provi- be conducted during the procedure for issuing the decision sions were adopted. on environmental requirements. The EIA Act was adopted for two main reasons. Firstly, The other one, if the relevant body deems it necessary it constituted an attempt at facilitating the EIA process with due to a lack of sufficient data during the first EIA, during regard to projects that present a significant environmental the procedure for issuing the decision that allows to initiate impact. Secondly, and this was clearly stressed in the justi- the project (e.g. a building permit). However, it is worth fication for the act4, it provided a response to the reserva- noting that although the EIA Act rightly requires that the tions voiced by the European Commission in the case No assessment be conducted on the respective stages of the 2006/2281, regarding the improper transposition of Direc- investment process, there still exist certain reservations tive 85/337/EEC. The charges referred among other things about its conformity with Article 2 (1) of the Directive5. Arti- to the following issues: (i) the manner of providing infor- cle 88 (1) of the EIA Act limits the possibility of a repeated mation to the public, its scope, the manner of providing EIA to projects that are enumerated in Art 72 (1) (1, 10, 14 documentation to the public and solutions allowing for the and 18) of the EIA Act. This may reduce Poland’s capabil-

4. Paper of the Parliament of 6th term, No 768, http://orka.sejm.gov.pl/Druki6ka.nsf/0/AA43EF8B99A49D1DC125748D003C8B61?OpenDocument 5. See: K. Gruszecki (Commentary on Article 88 of the EIA Act, System LEX OMEGA, state for 31.01.2013). 95 ity of taking all the necessary measures to ensure a proper oper. This part of the EIA Act contains provisions on an assessment of the environmental impacts resulting from environmental impact assessment report, provisions that the implementation of a particular project. make it possible for the developer (the applicant) to submit National provisions on public participation in the EIA a project specification sheet together with an application procedure to a large extent follow the Directive. With a for the scoping of the EIA report as well as provisions that few exceptions/ one exception, the EIA Act remains in oblige the authority that conducts the procedure to consult accordance with the Directive and ensures that the public the relevant bodies (including a regional environmental is informed in a timely and direct and direct manner protection director). This fulfils the obligations specified in about a number of issues, including: the initiation of a Article 5 of the Directive. procedure for issuing a relevant decision, how the public The EIA Act defines the bodies that should be consult- can become familiar with the necessary documents (this ed within the EIA procedure as well as the manner of such also refers to the application for the decision and relevant consultations. This transposes Article 6 (1) of the Directive. annexes), how and where comments and motions should Section VI of the EIA Act transposes the provisions on the be submitted. transboundary environmental impact assessment, which is (One of )The abovementioned exception refers to required in Article 7 of the Directive. Article 85 (3) of the EIA Act. This provision defines the obligation to inform the public about the decision, as well 7. Implementation as opportunities for becoming familiar with the decision and the relevant documents. Pursuant to Article 9 of the Although the Directive has been properly transposed by Directive, when a decision to grant or refuse a develop- means of the EIA Act and the Regulation of the Council of ment consent has been taken, the competent authority or Ministers of 9 November 2010 on projects that may have a authorities have to inform the public thereof in accordance significant environmental impact (Dz.U. of 2010, No 213, item with the appropriate procedures and make available to the 1397, as amended), its implementation contains certain flaws. public inter alia the content of the decision and any condi- tions attached thereto. Therefore, Article 85 (3) of the EIA Act “is inconsistent with Article 9 of the Directive 2011/92/ EU, which creates an obligation to directly inform the pub- lic about the content of the decision.”6 Article 44 of the EIA Act properly implements the obli- gation specified in Article 11 of the Directive to ensure that members of the public concerned who have a sufficient interest or alternatively maintain the impairment of a right, where the administrative procedural law of a Member State requires this as a precondition, have access to a re- view procedure before a court of law or another independ- ent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions. The EIA scope is defined in Article 62 of the EIA Act. It transposes Article 3 of the Directive. The Directive specifies two types of projects: (i) those that always have a significant environmental impact and for which an EIA is always required and (ii) those that require such an assessment only when a Member State decides so. Projects of the first type are enumerated in Annex I to the Directive, while projects of the second type in Annex II. Both annexes were transposed to Polish legislation by means of the Regulation of the Council of Ministers of 9 November 2010 on projects that may have a significant environmental impact (Dz. U. of 2010, No 213, item 1397, as amended). Selection criteria for projects of the second type are included in Article 63 of the EIA Act, which transposes Annex III of the Directive. The requirements of the Directive on the EIA proce- dure itself are transposed mostly in Section V of the EIA Directive. The Directive has been correctly transposed in this area. Section V, Chapter 2 of the EIA Act codifies the obliga- tion of a Member State to ensure that a developer pro- vides the information specified in Annex IV of the Directive and that its scope is suitable. It also lays down provisions that require Member States to ensure that, if the developer so requests before submitting an application for a devel- opment consent, the competent authority should give an opinion on the information to be supplied by the devel-

6. A. Haładyj, Podanie do publicznej wiadomości i obwieszczenie w przepi- sach prawa ochrony środowiska, Prawo i Środowisko, 2012, No 2, p. 79 96 In order to achieve the Directive’s purpose, an envi- developer as more credible, not bothering to investigate ronmental impact assessment has to be conducted on the the matters raised by other participants in the proceed- basis of suitable information provided by the developer ings. Many judgements of Polish courts clearly state that (i.e. mainly the project specification sheet and the report). an EIA report constitutes a private document provided This information can be supplemented by relevant public by the developer that serves as evidence in administra- administration bodies and the public concerned (recital 7 tive proceedings (e.g. Voivodship Administrative Court in of the Directive). Lublin, the judgement of 31 March 2011, II SA/Lu 845/10). However, an analysis of the judgements passed by Therefore, EIA reports have the same force of evidence as Polish courts regarding environmental impact assess- other documents presented by the remaining participants ments proves that public administration bodies frequently of the proceedings (in particular expert opinions). base their decisions in the EIA procedure on incomplete Pursuant to the Directive, the public should be in- or unverified documentation (see: the judgement of the formed about the details of the EIA procedure “at the Voivodship Administrative Court in Warsaw of 8 November latest as soon as information can reasonably be provided” 2010, IV SA/Wa 929/10, LEX No 759071). (Article 6 (2) of the Directive). The report should be made This is brought about by the manner in which admin- available to the public concerned “within reasonable istration bodies treat evidence presented by the public timeframes” (Article 6 (3) of the Directive). In the case of (frequently represented by environmental NGOs that Poland this means that the report is presented to the pub- participate in the administrative proceedings). It has the lic shortly after it is provided by the investor, i.e. before it is same force of evidence as information contained in the thoroughly examined by the relevant administrative body documents presented by the developer. Usually, however, for the purposes of a preliminary verification and screening such evidence counters the information provided by the for missing information or data. developer. In some cases, public administration bod- Therefore, if the developer is obliged to provide addi- ies treat reports and other documents presented by the tional information, public participation needs to be ensured once again. This means that the report has to be made publicly available and the public has to be provided with opportunities for submitting comments. Although, formally, this procedure does fulfil the requirements of the Directive, it unnecessarily prolongs the proceedings. It also reduces the transparency of the proceedings, as the introduction of new annexes, even extensive ones, does not oblige the developer to submit either a new report or a new unified text of the report. It is also worth noting that in some cases supplementing the report with new information does not result in the repetition of the public participation procedure nor consultations with relevant bodies7, despite the fact that this is a statutory obligation. Although reports frequently include all the legally required formal elements, i.e. those that are provided for in relevant provisions, their content is not appropriate for an environmental impact assessment. This constitutes a significant problem, in particular for environmental NGOs. Considering that administrative courts can analyse reports taking only formal issues into account8, the substantive value of the report cannot be verified by courts. It can be assessed only by the public body in charge of the EIA proceedings. As has already been mentioned, this assess- ment is frequently far from being perfect. It is also not unheard of in Polish legal practice for a formally faulty report to be accepted and serve as the basis of the decision. This is exemplified by problems with the description of analysed variants. Article 66 (1) (5) of the EIA Act states that the report should contain a description of: the solution proposed by the developer, a rational alternative and a variant that would be the best for the environment. It should also present a justification for the choice made. In some proceedings the bodies in charge issued decisions on the basis of reports that contained only a description of the variant proposed by the developer and the alternative where the project is abandoned altogether.

7. See: E. Smoktunowicz [in:] System ocen oddziaływania na środowi- sko planowanych przedsięwzięć w aspekcie problemów proceduralnych i innych, doświadczenie i praktyka RDOŚ w Łodzi, Meeting of the EIA Working Group, Poznań, 18-20 February 2013, http://www.gdos.gov.pl/ files/ENEA/Gurupy-robocze/OOS/18-20.02/System-ocen-oddzialywania- na-srodowisko-planowanych-przedsiewziec-w-aspekcie-problemow- proceduralnych-i-innych.pdf. 8. See: e.g. the Voivodship Administrative Court in Olsztyn, judgement of 10 May 2011, No II SA/Ol 176/11, LEX No 795681. 97 However, a variant where the project is abandoned 8. The fulfilment of the Directive’s cannot be treated as a rational alternative to the variant objective chosen by the developer (see: e.g. the Voivodship Adminis- trative Court in Gdańsk, judgement of 24 March 2011, II SA/ Despite the abovementioned problems with the Directive’s Gd 864/10, ONSAiWSA 2012/3/48). The Voivodship Court transposition and implementation, it may be concluded in Gdańsk stated that: “if the EIA report has to describe that its purpose has been achieved – development permits several variants of the project, and not only the variant pro- for public and private projects that may have a significant moted by the developer and the variant where the project is environmental impact are issued only when this impact is abandoned, and if pursuant to the aforementioned Article 81 assessed. The majority of these assessments is conduct- (1) [of the EIA Act], the applicant does not decide about the ed in line with the Directive. choice of the variant to be implemented, but has to cooper- ate in this area with the body that issues the decision on 9. Infringement procedures initiated environmental requirements for the consent to implement by the European Commission the project, it is of particular importance that variants are analysed taking into consideration the reservations about the project that have been voiced during the proceedings.” According to the information available, the European Com- If a decision is issued on the basis of a report that mission is not conducting any procedures against Poland violates the provision of the EIA Act, the whole EIA proce- due to the improper transposition or implementation of the dure becomes faulty. As a consequence, the Directive has Directive. not been not properly implemented, i.e. it is impossible to assess the possible significant environmental impact of 10. NGO initiatives projects on the basis the information provided inter alia by the developer. Environmental NGOs actively participate in EIA proceed- Improper description of the project by the developer ings, submitting comments or appealing against deci- constitutes another problem in the area of implementation. sions issued. If this is not verified by public administration, the project Moreover, NGOs carry out initiatives aimed at ensur- may be incorrectly classified and as a result the wrong ing that the full force of the provisions of the EIA Directive administrative proceedings may be applied. Sometimes is exercised in the Polish legal system. In this context it is developers divide the project in order to exclude some or worth mentioning the objection of NGOs from the Climate all of its elements from the obligation to conduct an EIA, Coalition, including Foundation ClientEarth Poland, to the which also leads to flawed implementation practice.9 proposed amendment of Article 44 of the EIA Act10. Pursuant to this amendment, Article 44 (1) of the EIA Act

10. http://legislacja.rcl.gov.pl/docs//2/141245/141276/dokument83642.pdf?lastUpdateDay=03.09.13&lastUpdateHour=17%3A04&userLogged=false&date=wto rek%2C+3+wrzesie%C5%84+2013 9. See: E. Smoktunowicz [in:] System ocen oddziaływania na środowisko planowanych przedsięwzięć w aspekcie problemów proceduralnych i innych, doświad- czenie i praktyka RDOŚ w Łodzi, Meeting of the EIA Working Group, Poznań, 18-20 February 2013, http://www.gdos.gov.pl/files/ENEA/Gurupy-robocze/ OOS/18-20.02/System-ocen-oddzialywania-na-srodowisko-planowanych-przedsiewziec-w-aspekcie-problemow-proceduralnych-i-innych.pdf. 98 will have the following wording: “Environmental non- governmental organisations that referring to their statutory objectives express willingness to participate in proceed- ings that requires public participation, will participate with the rights of a party to the proceedings if they have conducted statutory activities in the area of environmental protection or nature conservation for at least 12 months prior to the day on which the proceedings was instituted. The provisions of Article 31 (4) of the Code of Administra- tive Proceedings are not applied.” According to NGOs, the proposed amendment will hinder access to administrative proceedings for environ- mental organisations. For this reason, its compliance with the Constitution of the Republic of Poland, the Aarhus Convention11 and the EIA Directive raises justified doubts. The new wording of Article 44 (1) of the EIA Act would provide the relevant public administration body with much more freedom in deciding whether a particular environ- mental NGO may or may not participate in the administra- tive proceedings with the rights of a party. According to the amendment, only those environmental organisations that have conducted statutory activities in the area of envi- ronmental protection and nature conservation for at least 12 months before the day on which the proceedings are instituted will have the right to participate in them. This wording suggests that this period refers to 12 months before the proceedings are initiated by the body of the first instance, regardless of whether these are the first proceedings or the case is being re-examined by a public administration body after previous decisions have been overruled (such re-examination may take place even several years after the primary proceedings). This means that environmental organisations would have to prove that they have conducted activities in environmental protection or nature conservation for 12 months prior to the initiation of the procedure by the first-instance body, even if they want to join the proceedings only at the appeal stage. Due to this temporal criterion NGOs will have to specify the calendar date marking the beginning of their activities in environmental protection or nature conserva- tion. Moreover, public administration bodies will have to assess whether the organisation in question really acts in the area of environmental protection or nature conserva- tion. In other words, this amendment would provide public administration bodies with the right to decide whether activities conducted by a particular environmental NGO should be classified as relating to environmental protection or nature conservation. This is a significant problem, as, unlike the other criterion, i.e. statutory objectives, the criterion of activity in the aforementioned areas refers more to the practical operation of the NGO in question (and not to the formal expression of statutory objectives). Moreover, a thorough case-law analysis does not exist for this criterion, there- fore, it would be difficult for NGOs to adjust their operation so as to fulfil it. For the above reasons, in May 2013, Foundation ClientEarth Poland, in a letter to the Ombudsman, referred to problems resulting from the proposed amendment of Article 44 of the EIA Act.

11. Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters, adopted in Aar- hus, on 25 June 1998 (Dz. U. of 2003, No 78, item 706). 99 Maria Magdalena Kenig-Witkowska Professor, Head of Chair of ; Deputy Director of International Law Institute at the Faculty of Law and Admi- nistration, University of Warsaw; member of Scientific Council of the University of Warsaw Center for Environmental Research; member of International Law Association; member of European Law Association; international and national expert on environ- mental issues (consultant to UNEP, ILO, ECA, and governmental institutions). Author of numerous publications on international and European environmental law. Judge Manfred Lachs prize winner in 2006; in 2012 Minister of Science and Higher Educa- tion Award or outstanding scientific achievements in environmental law. Visiting professor at European, North American, Afri- can and South-East Asian Universities. Member of the Program Board of ClientEarth Poland.

Sharon Turner Professor Turner leads the Climate and Energy Programme which spans London, Brussels and Warsaw ClientEarth offices. She is an environmental with a background as an academic and government legal advisor. She has spent most of her (25 year) career working as an academic in the School of Law at Queen’s University Belfast, where she was the Professor of Environmental Law and the Director of the Masters in Environmental Law & . She has also worked as a legal adviser to the Northern Ireland Government, as an external expert, and from 2002-2004 was seconded to its Depart- ment of the Environment where she worked as the Senior Legal Adviser on Environmental Law. She is honorary professor at University College London and at the University of Sussex.

Marcin Stoczkiewicz ClientEarth senior lawyer, head of the Polish team for Climate and Energy, a member of the board of the Foundation ClientE- arth Poland. He has over 15 years of experience in the field of environmental law. Prior to joining ClientEarth, a partner in the law firm " Jendrośka, Jerzmański, Bar and Partners", which specializes in Polish and European environmental law. He obta- ined a degree in Law at the Faculty of Law and Administration of the Jagiellonian University. In 2002 he received the degree of Doctor of Law in the same department. In the years 2002-2013 Adjunct Professor at the Law Faculty of the Jagiellonian Uni- versity in the Department of Public Economic Law (2002-2010) and then at the Department of Environmental Protection Law (2010-2013).

Agata Bator Polish qualified lawyer. Her work focuses on energy efficiency and its promotion, in particular in the context of using EU funds. Prior to joining ClientEarth she was employed in leading Polish and international law firms, specializing in advising clients from the energy sector. Her professional experience covers in particular legal aspects of renewable energy sources, combine heat and power generation, and legal aspect of grid connections. Agata Bator graduated from the Faculty of Law and Administration and the Faculty of Philosophy and Sociology of the Maria Curie-Skłodowska University in Lublin.

Robert Rybski ClientEarth lawyer in the Climate and Energy team, based in Warsaw, Research fellow within the Constitutional Law Chair at the Faculty of Law and Administration of the Warsaw University; Robert holds a Master of Laws from the University of Warsaw and a LL.M. degree from the Humboldt-Universität zu Berlin; Robert has been rooted into the Polish civil society, worked i.a. for the Polish Ombudsman and Helsinki Foundation of Human Rights; Robert is currently working on a PhD thesis in the area of constitutional environmental and energy law.

Bolesław Matuszewski Bolesław Matuszewski is an advocate and has been Fundacja ClientEarth Poland’s attorney since October 2012. He runs his own law practice in Warsaw specializing in administrative and . Prior to establishing his own law practice, Bolesław Matuszewski gained experience in international law firms specializing in , as well as in a Polish law firm speciali- zing in procedural law. Bolesław Matuszewski is also a lecturer in the field of Anglo-American law and English legal terminology.

Małgorzata Smolak ClentEarth lawyer in the Climate and Energy team based in Warsaw. She has 13 years of professional experience in the areas of legal advice, development, project management, local governance and public relations. Before joining ClientEarth, she held roles in the Institute of Environmental Economics, several local government bodies, private sector and in peacekeeping mis- sion in Bosnia and Herzegovina. She is a lawyer with a Master's Degree from Jagiellonian University. She also obtained post- graduate diplomas in diplomacy and international relations and in European integration.

100 Summary

Marcin Stoczkiewicz

The aim of this report has been to review and analyze the 1990 levels) and Art. 1, paragraph 3 (introducing stricter state of the implementation in Poland of the most impor- Community reduction commitment exceeding 20% after the tant directives which make up the climate protection law of approval of an international agreement on climate change) the European Union. It mainly covers the so-called direc- are significantly compromised. In relation to the failure by tives of the climate and energy package and the associ- Poland to transpose Directive 2009/29/EC, on 31 January ated functional directives on energy efficiency, industrial 2013 the European Commission sent to the Polish authori- emissions, air quality, and the environmental impact ties a formal note pursuant to Art. 258 of the Treaty on the assessment of projects. Their complete implementation Functioning of the European Union. could have a positive effect with regards to solid reduction trends in greenhouse gas emissions. An analysis of the RES Directive implementation of the directives and a preceding introduc- Directive 2009/28/EC of the European Parliament and of tory chapter explain to the reader obligations of the Mem- the Council of 23 April 2009 on the promotion of energy ber States of the European Union. The report takes into from renewable sources and amending and subsequently account the state of the implementation of the directives repealing Directives 2001/77/EC and 2003/30/EC entered as of 14 September 2013. into force on 25 June 2009. The deadline for transposition Of the 11 analyzed, only one directive (Directive expired on 5 December 2010. Directive 2009/28/EC has not 2011/92/EU on the environmental impact assessment) was been fully and correctly transposed into Polish law. Some transposed into Polish law within the required deadline. The of the provisions of Directive 2009/28/EC on energy were other directives analyzed have all been transposed into implemented with a delay of almost three years by the so- Polish law with considerable delay and the transposition called "Small three-pack", the Act of 26 July 2013 amending process has not been completed. the Act on Energy Law and other Acts. There is a risk that Two very important directives, from the point of view of the national objectives and the so-called trajectory of their climate protection, have not been transposed into Polish achievement will not be met by Poland, due to the lack of law, although the deadlines for transposition have passed: support for fixed renewable energy sources. In the transport the second Directive on Emissions Trading (2009/29/EC) sector, due to the failure to transpose Directive 2009/28/ and the Directive on Industrial Emissions (2010/75/EU). EC regarding the criteria for sustainable development, the Shortcomings in transposition or bad (incomplete) trans- share of energy from renewable sources in transport that position have resulted in gaps in the practical implementa- meet these criteria in Poland is close to zero. On 21 March tion of eight directives. 2013 the European Commission brought a case against With regard to the two directives, it cannot be said at Poland before the Court of Justice of the European Union all, that they have achieved their objectives, whereas the due to its "failure to transpose" Directive 2009/28/EC. objectives of the next five directives are significantly com- The Commission is seeking the award of a penalty for the promised. amount of the daily rate for each day of non-transposition The European Commission has initiated proceedings of € 133,228.80. This means that for each year that Poland on the absence of transposition of eight directives in Po- remains in a non-transposition state a fine of approximately land under Article 258 and Article 260 of the Treaty on the 205 million PLN may be imposed. Functioning of the European Union; one of these proce- dures has been discontinued. CCS Directive Directive 2009/31/EC of the European Parliament and of EU ETS Directive the Council of 23 April 2009 on the geological storage of Directive 2003/87/EC of the European Parliament and of carbon dioxide and amending Council Directive 85/337/ the of 23 April 2009 amending Directive so as to improve EEC, European Parliament and Council Directives 2000/60/ and extend the EU system greenhouse gas emissions EC, 2001/80 / EC, 2004/35/EC, 2006/12/EC, 2008/1/EC trading - has not been transposed into the Polish legal and Regulation (EC) No 1013/2006 entered into force on 25 system. The Directive entered into force on 25 June 2009. June 2009. The deadline for the transposition of the direc- The period for transposition passed 31 December 2012. tive into national law expired on 25 June 2011. It was only Due to the lack of transposition and implementation into on 30 August 2013 that the Lower Chamber of the Polish Polish law of Directive 2009/29/EC, in particular, the lack Parliament passed a bill amending the Act – The Geologi- of imposition on operators of the obligation to purchase cal and Act and certain other acts with drafts of allowances at auction and the rules of allocation of income executive regulations, which aim to transpose the Directive arising from the sale of emission allowances, the purpose into Polish law. Due to the prolonged absence of relevant of the Directive has not yet been achieved. The Emissions provisions in national law, it is difficult to talk about the Trading Scheme operating in Poland does not in fact com- proper implementation of Directive 2009/31/EC. The cases ply with the provisions laid down in Directive 2009/29/EC. in which an attempt have been made in Poland to use

However, due to the transposition and the very advanced technology for the capture and storage of CO2, as well as to nature of the process of the implementation of Art. 10c of explore the possibility of its use in the future, were very few the amended Directive 2003/87/EC, to the extent that these and unsuccessful. In the absence of a timely transposition, rules allow for power plant operators to obtain free emis- Poland has not been adhering to the so-called CCS-read- sion allowances, the achievement of the objectives set out iness assessment. According to Directive 2009/31/EC the in Art. 1, paragraph 2 (reduction by 2020 of the total EU competent authority should require any investor applying for greenhouse gas emissions by at least 20 % compared to permission to build a large fuel combustion plant to evalu- 101 ate the CCS-readiness, i.e. assess whether (i) transport force on 1 February 2013), for now (September 2013) it is facilities are technically and economically feasible, and (ii) difficult to assess the practical implementation of its provi-

a retrofit for CO2 capture is technically and economically sions. Directive 2010/30/EU does set a specific target, but feasible. In the absence of a proper transposition and im- its requirements are associated with the overall objective plementation of Directive 2009/31/EC, the objective has not of the reduction of energy consumption in the EU by 20% been achieved in Poland. On 18 July 2011 the European by 2020. An evaluation of the contribution of information on Commission decided to initiate proceedings against Poland energy-using products to achieve this goal will be possible for the non-transposition of Directive 2009/31/EC. only after a certain time, and the final verification of the objective of reducing energy consumption by 20% will be The Directive on energy end-use possible in 2020. The European Commission has carried Directive 2006/32/EC of the European Parliament and of out a procedure related to the lack of a notification of na- the Council of 5 April 2006 on energy end-use efficiency tional laws transposing Directive 2010/30/EU. On 26 March and energy services, repealing Council Directive 93/76/EEC 2012, the European Commission addressed Poland with a came into force on 17 May 2006. The deadline for the trans- reasoned opinion. As of 21 February 2013 the investigation position and implementation of this Directive expired on 17 was still ongoing. May 2008. Directive 2006/32/EC has been transposed into Polish law by the Act of 15 April 2011 on energy efficiency. Directive on the energy performance of buildings The transposition of the Directive is incomplete and to some Directive 2010/31/EU of the European Parliament and of extent incorrect. The general objective of Directive 2006/32/ the Council of 19 May 2010 on the energy performance of EC is to achieve energy savings of 9% by 2016 in relation buildings came into force on 8 July 2010, and the deadline to the average consumption in the years 2001-2005. An for the transposition of the directive into national law passed evaluation of the implementation of this objective will there- on 9 July 2012. Directive 2010/75/EU was transposed into fore be possible in 2016. In addition, it appoints an interme- Polish law only rudimentary by Article 4 and Article 6, by diate indicative target of 2% of the average consumption regulations issued by the Minister of Transport, Construc- of the years 2001-2005. According to the second National tion and Maritime Economy on 5 July 2013 and 21 June Action Plan on energy efficiency, by 2010, Poland achieved 2013. Due to a lack of full transposition and implementa- energy savings of 5.9% of the average consumption in tion of Directive 2010/31/EC, its objective has not been the years 2001 to 2005, and thus the intermediate indica- achieved in Poland. In relation to the failure by Poland to tive target had been achieved. By 1 September 2013, the transpose Directive 2010/31/EU, on 20 June 2013, the Commission published a report on the assessment of the European Commission sent to the Polish authorities a second national action plans on energy efficiency provided reasoned opinion. by the Member States. Proceedings initiated by the Com- mission against Poland for its failure to transpose Directive Directive on fuel quality 2006/32/EC have been waived. Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC The Ecodesign Directive regarding the specification of petrol and diesel fuels and Directive 2009/125/EC of the European Parliament and of introducing a mechanism to monitor and reduce green- the Council of 21 October 2009 establishing a framework house gas emissions and amending Council Directive for the setting of ecodesign requirements for energy-related 1999/32/EC as regards the specification of fuel used by in- products came into force on 20 November 2009. The dead- land waterway vessels and repealing Directive 93/12/EEC line for implementing the Directive into national law expired came into force on 25 June 2009. The Directive has been on 20 November 2010, Directive 2009/125/EC was trans- transposed only in a very limited part. The fundamental posed into Polish law by enacting a regulation of the Minis- failure to transpose Directive 2009/30/EC is reflected in ter of the Economy of 17 December 2010 on the conformity the lack of any appropriate implementation of the Direc- assessment procedures of energy-using products and their tive in the Polish legal system. In the case of Directive labeling. Most of the provisions of Directive 2009/125/EC 2009/30/EC, it is possible to identify four objectives which have been correctly transposed into Polish law. Additionally, are to be achieved by a correct implementation: (1) a level the measures necessary for the practical implementation of air quality that does not result in a significant adverse of its provisions have been taken. The overall aim of the impact on human health and the environment - this is directive of ensuring the free movement of energy-related the main objective, (2) the monitoring and reduction of products on the internal market, as a result of the frame- greenhouse gas emissions in the lifecycle of fuels, (3) the work setting ecodesign requirements for energy-related decarbonisation of transport fuels by appropriate speci- products, has been achieved. fications of fuel, and (4) the compliance of biofuels with sustainability criteria. Out of the above four goals, only one The Directive on Product Information has been partially fulfilled (the fuel specification). Currently about the Consumption of Energy the European Commission has not initiated any proceed- Directive 2010/30/EU of the European Parliament and of ings against Poland related to Directive 2009/30/EC. the Council of 19 May 2010 on the indication by labeling and standard product information of the consumption of CAFE Directive energy and other resources by energy-related products Directive 2008/50/EC of the European Parliament and of came into force on 19 June 2010. The deadline for the the Council of 21 May 2008 on ambient air quality and transposition of the Directive expired on 20 June 2011. cleaner air for Europe entered into force on 11 June 2008. Directive 2010/30/EU was transposed into Polish law by Member States were obliged to transpose it by 11 June enacting the Act of 14 September 2012 on the obligations to 2010. It was not until 28 May 2012 that the Act of 13 April provide information on energy-using products. The trans- 2012 amending the Act on Environmental Protection Law position is complete and correct. Due to the fact that the and other laws was enacted and Directive 2008/50/EC was provisions of the Act of 14 September 2010 have only been transposed. The transposition has ​​significant shortcomings. functioning for a short period (the provisions entered into Due to the delayed and a partially defective transposition of 102 the provisions of Directive 2008/50/EC relating to air quality environmental impact assessment, which transpose Direc- plans, its implementation is incomplete. Although air quality tive 85/337/EEC were included in the Act of 3 October 2008 plans and short-term action plans containing, as described on the provision of information about the environment and in Directive 2008/50/EC, information and measures should its protection, public participation in environmental protec- have entered into force by 11 June 2010, in Poland there tion and environmental impact assessments. Basically, are currently (September 2013) plans being drawn up under the transposition of the directive is correct. Despite some the old rules. The new plans will be adopted, therefore, only problems with the implementation of Directive 2011/92/EU, in November 2013, and due to the fact that these programs it must be noted that the purpose of the directive in principle are currently under preparation it is difficult to determine has been reached, i.e. permits for investments in public and the quality of the implementation of the provisions on the private projects, which are likely to have significant effects plans, but due to the incorrect transposition of Art. 23 on the environment shall be provided only after an assess- Paragraph 1 of Directive 2008/50/EC into Polish law, it can ment of the likely significant environmental effects of these be assumed that these programs will not ensure that the projects, and in most cases, the assessment is made in ac- period of non-compliance with the limit values will be ​​"as cordance with the spirit of the directive. At the moment there short as possible." The purpose of Directive 2008/50/EC, are no ongoing proceedings against Poland initiated by the which is to prevent and reduce the harmful effects of air European Commission because of the incorrect transposi- pollution on human health and the environment as a whole tion or implementation of Directive 2011/92/EU. has not been achieved in Poland. According to data from 2011, in each zone, concentrations exceeding the standard values ​​for one or more than one pollutant were recorded. Against the zones where the limit values ​​for PM10 have been exceeded, the European Commission has decided to initiate infringement proceedings under Art. 258 or 260 of the Treaty on the Functioning of the EU TFEU (violation No. 2008/2199). This procedure is still ongoing.

IED Directive Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions came into force on 6 January 2011. The deadline for the transposition and implementation of the vast majority of the provisions of the Directive expired on 7 January 2013. Directive 2010/75/EU had not been transposed into Polish law by 7 January 2013, and this state persisted on the day of the completion of the work on this study. In the absence of a timely transposition of Directive 2010/75/EU into Polish law, there is no implementation into the Polish legal system. However, using the optional derogation provided for in Art. 32 of Directive 2010/75/EU, the Council of Ministers adopt- ed a draft Interim National Plan (PPK) and on 27 December 2012, the Ministry of the Environment provided the PPK project to the European Commission by the deadline of 31 December 2012 as instituted by Art. 32 Paragraph 5. The implementation of the objectives of Directive 2010/75/EU is very significantly compromised by the absence of its timely transposition and implementation. The objective of the Directive will be particularly difficult to reach with regard to power installations. As indicated in Blumberg, New Energy Finance Poland's existing fuel combustion plants with a total capacity of 33 GW do not meet the emission standards of Directive 2010/75/EU. Due to the failure to transpose Direc- tive 2010/75/EU into Polish law the European Commission has started the procedure laid down in Art. 258 of the Treaty on the Functioning of the European Union.

EIA Directive Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environ- ment, which came into force on 17 February 2012, does not specify a deadline for the adoption of national schemes aimed at its implementation. Directive 2011/92/EU is merely a of the existing legal solutions that have al- ready been implemented. It is an attempt to harmonize EU rules on the assessment of the environmental impact previ- ously contained in Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. Polish regulations on 103