The draft of a new Polish law on energy efficiency envisages inter alia the framework for the system of “white certificates” that will be issued by the Polish Energy Regulatory Office (URE) and serve as a confirmation of the energy savings as a consequence of energy efficiency improvement measures. But the negative verification of energy savings will be very risky...

Poland is still striving for implementation of the 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 repealing Council Directive 93/76/EEC – but so far without effect.

The current achievement in this area is the draft of the Law on energy efficiency (version of 5 November 2009), published at the website of the Polish Ministry of Industry (www.mg.gov.pl).

The draft law envisages inter alia the framework for the system of “white certificates” that will be issued by the Polish Energy Regulatory Office (URE) and serve as a confirmation of the energy savings that follow energy efficiency improvement measures

The interesting concept of the Polish framework for the “white certificates” are tenders organised by the URE in order to choose these energy efficiency improvement measures, which will be entitled to obtain energy efficiency certificates.

I’m afraid that some of these provisions require some corrections. It relates especially to article 22 of the draft. Art. 22 par. 6 provides that the President of URE immediately informs the entity, which was granted the white certificates, of the negative verification of energy savings. The procedure laid down in art. 23 of the draft doesn’t mention that on such an occasion an issuance of a administrative decision is required – enabling thus the entity which obtained the notification to appeal against the decision.

The matter seems to be essential, because the consequence of the aforementioned negative verification of energy savings is the exclusion from tenders for the period of five years (art. 23 par. 6). It could be costly.

Furthermore, the articles 22 par. 6 and art. 23 provide for no gradation, even small discrepancies thus could result in the aforesaid exclusion from tenders. Legal framework constructed in such a manner, in my opinion, entails to much uncertainty and risk for business.

Excessively repressive attitude towards the future stakeholders of the system is seen also in these provisions of the draft law that lay down entire set of fines (art. 36). Fines are simply draconian and amount up to 10 % of the annual income – for instance, when an entity taking part in the system, submitted to the URE an application for “white certificates”, and that application was erroneous and contained false data. Also in this situation the draft law  unfortunately doesn’t mention, that when an error occurred without any fault on the part of the applicant, there could be no fine. It will therefore be appropriate to add at least the reservation in art. 37 that the amount of the aforesaid fines will depend, in particular, on the degree of the fault of the applicant.