Informacje

DMS
  August 28, 2012

  Husum WindEnergy 2012 – Save the date
 

From September, 18 to September, 21, 2012 DMS lawyers are present at Husum WindEnergy fairs. Please note the seminar about the Polish market on Tuesday, 12am at the Congress facilities, room 3. On Tuesday 4pm we invite as well to a Get-Together with Polish drinks and snacks at stand 4f12 (joint stand of w4e and windhunter).


  The National Fund for Environmental Protection and Water Management still has no idea how to spend money and no president to take the chair in 2013
 

According to the post-inspection findings, during the first six months of the last year the Fund managed to spend as little as 20 percent out of PLN 2.8 billion which it received in the years 2008-2011. The funds placed in the Fund’s accounts are derived, in the first place, from the compensation fees paid by the energy companies. The fees should be designated for the development of the renewable energy system, while the inspectors proved that not all funds were spent to support the renewable energy sources in compliance with their designation. The Supreme Chamber of Control criticized that the criteria of classification of “green” projects to be supported from the Fund’s means are too stringent. For years the commissions have been dismissing the majority of the applications filed. This in turn hinders the process of spending the funds faster than they accrue in the accounts of the Fund. For this reason, the improvement of this situation will most probably constitute the most important objective to be achieved by the new management of the institution. This will not be an easy task though since the institution seems to have found itself in a tight corner now as a certain part of the funds coming from the governmental agreements on trade in rights to CO2 emissions under the Kyoto protocol needs to be spent by 2013. Otherwise, it will be lost.
More to the point, the situation of the Fund has discredited it as a potential administrator of funds from the trade in the European rights to CO2 emissions under the ETS, which currently constitutes subject of disputes in the government. Even though Polish power plants will soon buy rights worth hundreds of millions of zloty, and at least half of these funds was to be designated for the development of the “green” energy sector, the Fund is not perceived as an institution that will be capable of spending even greater streams of cash. Mid August the supervisory board of the Fund announced elections of a new president and two vice presidents of this institution. Jan Rączka informed that he planned to perform his function only until the end of this year.


  Investments in photovoltaic power plants – is a building permit required?
 

In principle, according to building law it is necessary to obtain a building permit for all construction works when the building works take place. Nevertheless, the building law provides for certain exceptions when a notification of carrying out building works is required rather than a building permit, or none of these requirements applies. One of the explicit exceptions constitutes the assembly of solar collectors. But should solar collectors and photovoltaic installations be treated in the same way? A confirmation of the relevant municipality is generally advisable. It is worth mentioning that the only large solar farm in Poland located in the Wierzchosławice municipality in the South Eastern Poland close to Tarnów required no building permit. But it needs to be added that when the new RES Act will enter into force photovoltaic installations with more than 40kW installed capacity require a building permit for installation and montage, as the building law will be amended accordingly.


  How to interpret Clause 41 Sec.3 RES Act draft?
 

Thus, the Act is setting - contrary to the regulations currently in force – a maximum price at which an ex officio supplier is obliged to make purchases.
Clause 41 Sec. 3 provides that "if the sale of electric energy or gaseous fuel generated from renewable energy sources at an renewable energy source installation connected to the distribution or transmission grid situated within the area of operation of such ex officio supplier, as offered by the power company, shall be effected at a price higher than the purchase price, as set out in Art. 38, the confirmation of generating such electric energy in the form of a certificate of origin or a certificate of origin of biogas shall not be granted."  Thus, Clause 41 Sec. 3 introduces an exception to the aforementioned rule, whereby in the event of sale of energy generated from RES at a price higher than that set out based on Clause 38, ”the confirmation of generating such energy” in the form of a certificate of origin shall not be granted. Thus, Clause 41 Sec. 3 constitutes a sanction for exceeding the purchase price set out in Clause 38. This clause may be interpreted in various ways, as follows:
(1)    Interpretation 1: In order to obtain confirmation of generating energy from RES in the form of a certificate of origin, the producer of energy from RES has to sell such energy (i) exclusively at the price set out in Clause 38 and (ii) exclusively  to the ex officio supplier pertinent to the location of its energy source. Otherwise, (in the case of sale to a different entity or/and sale at a different price) it shall not be granted a certificate of origin.
(2)    Interpretation 2: In order to obtain confirmation of generating energy from RES in the form of a certificate of origin, the producer of energy from RES may sell such energy to anyone (i.e. to the ex officio supplier or to another entity) but exclusively at the price set out in Clause 38 of the Act draft. Otherwise, (in the case of sale at a different price) it shall not be granted a certificate of origin.
(3)    Interpretation 3: In order to obtain confirmation of generating energy from RES in the form of a certificate of origin, the producer of energy from RES has to sell such energy from RES either (i) to the ex officio supplier pertinent to the location of its energy source at the price set out in Clause 38 of the Act draft or (ii) to another entity at any price. Otherwise, it shall not be granted a certificate of origin.
The literal meaning of Clause 41 Sec. 3 suggests interpretation 2 since this provision pertains to electric energy “offered by a power company” and does not limit the group of addressees of this offer to the ex officio supplier. The sanction in the form of the loss of the right to obtain certificates of origin pertains to any case of sale of electric energy in excess of the purchase price as set out in Clause 38, irrespective of the fact to whom such energy is being sold. However, a conclusion may be drawn from the Justification to Clause 41 of the Act draft that it is the intention of the draft’s author i.e., the Ministry of Economy to implement the regulation with the contents determined in accordance with interpretation 1. Interpretation 3 seems to be the least correct in light of the linguistic systemic and objective interpretation.


  The Office for the Protection of Competition and Consumers and the Ministry of Economy still discordant about the need for notification of the RES Act draft
 

Hence, according to the President of the Office for the Protection of Competition and Consumers the support system provided for in the RES Act draft as a type of public aid should be notified to and approved by the European Commission before its implementation. The Ministry of Foreign Affairs seems to share this opinion. As it follows from the Justification of the RES Act draft, the Ministry of Economy, contrary to the opinion of the President of the Office for the Protection of Competition and Consumers, did not treat the support mechanisms contained in the Act draft as a public aid, and thus did not consider it necessary to notify such aid to the European Commission.
In this context, one should take into consideration the negative consequences of the failure to notify the public aid to the European Commission and also of deeming such aid as non-compliant with the European Union laws. As the President of the Office for the Protection of Competition and Consumers noted: "...state aid that has not been reported to the Commission constitutes illegal aid. In case of such aid, having established its non-compliance with the EU laws, the Commission may pass a decision ordering the state to recover it from the beneficiary (the enforcement obligation is vested with the state, i.e. the authority that granted the aid). The aid shall be returned including interest accrued from the date of granting such aid until the date of its actual full return). In fact, it means that all financial consequences resulting from the failure to comply with the notification obligation shall be borne by the beneficiary. If it used such aid in good faith, it is entitled to claim for damages from the state.”
In case of a notification the legislation process postpones by minimum half a year, which is a delicate issue as Poland is already late with implementation of the Directive 2009/28/EC and fines for Poland are imminent.


 

For more information please contact:

 

       

dr Christian Schnell
coordination/transactions/
venture agreements
cschnell@dms.net.pl
 
C. David DeBenedetti J.D.
project finance
ddebenedetti@dms.net.pl
 
Joanna Świostek
project development/planning
and building law/commercial
jswiostek@dms.net.pl




DeBenedetti Majewski Szcześniak has been chosen
by Corporate Intl Magazine 2012 as the:

“Renewable Energy Law, Firm of the Year in Poland”

“Project Finance Law, Firm of the Year in Poland”

“Investment Funds Law, Firm of the Year in Poland”

 
 

 

 
 

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