February 27, 2012

  Renewable Energy Sources Act not to be adopted in 2012

According to the head of the Parliamentary Commission for Energy Policy, Andrzej Czerwinski from the ruling party PO, the Parliament will not deal with the draft of the Renewable Energy Sources Act before September of this year. Therefore, the new RES Act won’t come in force before 2013. The draft published by the Ministry of the Economy before Christmas 2011 scheduled July 1, 2012 as the date, on which the new act should come in force. The main criticisms of the draft RES act are the calculation basis for correction coefficients implemented in the royalty system and as well a lack of purchasing obligation for electric green energy at the so-called URE-price – the average electric energy price for the previous year. According to leading specialists such as Prof. Zmijewski from the Warsaw University of Technology, the main renewable type to benefit from the proposed royalty scheme is co- firing coal/lignite with biomass, mainly forest biomass imported from outside of the EU. As the carbon footprint for this type of “green energy” is rather doubtful, further legal steps by the EU Commission to stop forest biomass imports from outside EU have to be expected in the following years. The strong emphasis of co-firing may well be a result of Polish fiscal policy, as the State owned utilities, which run most of the coal- and lignite fired power plants, provide significant dividend payments to the public budget every year (e.g. for PGE 850 mln PLN in 2011, for Tauron 100 mln PLN in 2011). 

  Many master plans being questioned

Under the procedure of adopting a master (zoning) plan, municipalities have to apply for approval of the Polish Ministry of Agriculture for redesignation of agricultural land classes I to III to non- agricultural use, if the redesignated sites exceeds a “consistent project area” of 0.5 ha. In the statements of municipalities included in relevant planning documentation for wind farms, municipalities generally declare a total area exceeding 0.5 ha of agricultural land as designated for non agricultural purposes; however, usually none of the redesignated sites exceed 0.5 ha. Thus, the municipalities interpreted the law to provide that such redesignation does not require the approval of the Minister of Agriculture. In this case, every site planned for locating a wind farm turbine, including accompanying infrastructure has been calculated individually. Such interpretation has also been also presented so far by the Ministry of Agriculture in an individual interpretation issued in 2008. However, apparently having been influenced by rising protests of citizens against wind farms – see, the Ministry of Agriculture recently changed its approach, and according to their new interpretation, the whole area dedicated in a master plan for rededication – all sites dedicated for wind farm operation, e.g. towers, parking position for cranes and access roads – has to be taken into account when calculating the legal threshold. As there is no legal definition of “consistent project area”, it is hard to clarify which interpretation is lawful. The jurisprudence of Administrative Courts in Poland is inconsistent. The Minister of Agriculture has already asked Voivodes to clarify this matter. The Voivode is entitled to lodge a complaint to the Administrative Court to declare the master plan invalid whenever irregularities are found. Although the invalidation of an existing master plan does not automatically lead to the invalidation of an already issued building permit, it creates an extraordinary basis on which it may be possible to demand its cancellation. Nevertheless municipalities have to take in mind potential damage claims by wind farm investors, as every master plan is accepted by the Voivode before being issued – and the same Voivode lodges a complaint to the Administrative Court to declare the respective master plan invalid. 

  Duration of long-term lease agreements

On May 3, 2012 amendments to the Polish Civil Code - impairing significantly the durability of long- term lease agreements - enter into force. According to these amendments, the purchaser of a property, which was sold at auction by a Court Bailiff, will be entitled to terminate a lease agreement even if such agreement was concluded for a definite period of time with authenticated date. In view of these changes the rights of the wind farm operator to use the land under WTGs might additionally be secured by establishing additional limited property rights (transmission easements and/or rights of use – prawo uŜytkowania/PL) consisting in the right to use the property within the designated scope. In case of sale of a property in enforcement proceedings, transmission easement encumbering the property (always) and right of use (under certain conditions) do not expire. 

  What to do in case of noise in a developing residential area?

Local citizens are getting more and more aware of Wind Turbine Generators (WTG) producing noise. The acceptable noise level at the outside façade of residential building – in a residential area - is generally 50 decibels during the day and 40 decibels at night. Although the EU directive 2002/49/EU does not introduce this level directly, most member states implemented the level into national law. Common WTGs in Poland, as the Vestas 90, emit a guaranteed noise level of 104 decibels at 12 m/s, which leads to a noise level 40 decibels in a distance of more than 400 meters from the WTG depending on other noise sources and landscape. As the period from initial planning to building permit lasts a few years, there is a potential risk that after micro-siting, new residential buildings have in the meantime been erected close to the WTG, or buildings with other use have been qualified as residential buildings. How to react to this? An easement seems to be a proper way to burden the residential property. As the burden is a passive easement for the owner of a property, a transmission easement does not qualify as the right legal tool, but a land easement, which has a broader scope, should be taken in mind. A land easement burdens the subservient property in favour of the dominant property, where the WTG will be located. 


For more information please contact:



dr Christian Schnell
venture agreements
C. David DeBenedetti J.D.
project finance
Joanna Świostek
project development/planning
and building law/commercial

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”




The aim of this Newsletter is to provide a summary of the subject matter. No part of this Newsletter constitutes legal advice or can replace expert legal advice in specific circumstances. If you would like any further information, contact us.

Subscribe now or click here if you wish to unsubscribe from the DMS Newsletter