On 16 July 2009 the Polish Minister of Economy presented the latest version of a draft Act on Energy Efficiency (the Draft Act). The main aim of this regulation is to create a new system for supporting energy efficiency in Poland by implementing provisions of Directive 2006/32/EC on energy end-use efficiency and energy services. This Directive places upon EU Member States the obligation to achieve an overall national indicative energy savings target of 9 per cent by the ninth year of application of the Directive (starting from 1 January 2008).
According to the Draft Act, the Minister of Economy must prepare a national action plan for energy efficiency presenting programmes which will enhance energy efficiency in the country and the projected energy efficiency investments within particular sectors of the economy. Under the Draft Act, the first action plan should be prepared by the Minister of Economy by 30 June 2011. The Draft Act also binds the Polish public sector to undertake energy efficiency measures resulting in energy savings of one per cent each year.
A major part of the Draft Act is the so-called “white certificates” system. Power companies selling energy to final recipients will be obliged to meet specific annual energy efficiency goals by submitting the relevant number of white certificates to the President of the Energy Regulatory Office (ERO). The specific annual energy efficiency goals will be set by the Minister of Economy under a separate regulation. White certificates must be presented by power companies to the President of the ERO by the end of March in order to fulfil their energy efficiency duty for the preceding year. If power companies do not meet the goals, they will be obliged to pay a substitute payment by 31 March. White certificates will be issued by the President of the ERO as a confirmation of energy savings accomplished as a result of energy efficiency improvement investment.
The President of the ERO shall only issue white certificates in respect of energy efficiency undertakings which were chosen within the specific public tendering procedure. Under the Draft Act, at least once a year the President of the ERO will announce and conduct a public tender for choosing energy efficiency investments concerning the following types of undertakings:
- enhancing energy savings among final recipients
- enhancing energy efficiency of energy generation (electricity or heat) and
- reducing the loss of electricity or heat in the transmission and distribution processes.
Each type of investment should be covered by a separate public tendering procedure. Therefore, investments which were completed before 1 January 2008, which were supported by EU funds, or which were financed on the basis of the Act dated 21 November 2008 on thermal modernisation support, cannot be submitted for any type of public tender. The specific types of energy efficiency undertaking which are allowed to be submitted for public tendering will be listed by the Minister of Economy under a separate regulation.
It is important that the entity which is chosen during the public tender receives the relevant amount of white certificates covering the anticipated energy efficiency after the specific efficiency undertaking has been provided. The entity should inform the President of the ERO of the finalisation of the energy efficiency investment (and provide documentation evidencing the accuracy of the undertaking) within 14 days from its completion. The white certificates should be registered in the relevant account within 30 days from the date of submitting the information to the President of the ERO.
It should be noted that the Draft Act provides for financial penalties for power companies which fail to fulfil energy efficiency duties. Such companies must either submit the relevant amount of white certificates or pay a substitute payment. The maximum level of the penalty should not exceed 15 per cent of the power company’s income in the preceding tax year.
A property right under a certificate of energy efficiency arises once the certificate is registered with the special register operated by the Power Exchange. The register is based on the information on the certificates issued in a given period and given to the Power Exchange by the ERO. The property right is recorded in the account of a given entity, and as such should represent a tradable commodity. A transfer of property rights arising from the certificate of energy efficiency will be effective once a relevant entry is made in the register.
According to the latest information provided by representatives of the Ministry of Economy, the Draft Act is expected to be accepted by the Council of Ministers in September 2009. It will then be submitted to the Parliament. The Draft Act is expected to enter into force in January 2010.