Introduction

On November 28 2016 the energy sector regulator announced the final version of the auction bylaws required under the new renewable energy support scheme. The bylaws set out detailed rules for:

  • preparing and conducting auctions;
  • creating and maintaining auction participant profiles on the online auction platform; and
  • processing data regarding auction participants.

They also set out the requirements that must be satisfied to obtain access to the online auction platform.

Further, on November 30 2016 the dates of the first auctions to be held under the new support scheme were announced.

Auction bylaws

In accordance with the Renewable Energy Sources (RES) Act of February 20 2015 (Journal of Laws 2015, Item 478), the Energy Regulatory Office president recently published the auction bylaws required to launch the new auction-based renewable energy support system. The auction bylaws mirror the RES Act with regard to auctions. However, they include detailed information directly concerning potential participants' access to the online auction platform, including:

  • the creation of online auction platform profiles;
  • the submission of declarations of participation in an auction (this option is available for RES installations that started operating before July 1 2016) and their verification by the Energy Regulatory Office president;
  • applications for admission certificates to participate in an auction (such certificates must be obtained for RES installations that will start operating after the closing of the relevant auction);
  • the conduct of auctions (including requirements applicable to the submission and amendment of bids and the finalisation of auctions); and
  • the submission of a cash deposit or bank guarantee of PLN30 per kilowatt (kW) of installed electrical capacity of the RES installation concerned before its participation in an auction (the cash deposit or bank guarantee is returned to the winner of the auction within 60 days from the date of generating electricity for the first time and to losing bidders within 14 days from the auction's closing).

The auction bylaws' key information includes the following:

  • Operators of RES installation that started operating before July 1 2016 should submit to the online auction platform a declaration of participation in a given auction that includes key information about the installation, including:
    • its name;
    • its location;
    • its installed electrical capacity; and
    • the method of feeding power into the distribution system.
  • The declaration of participation must be verified by the Energy Regulatory Office, which verifies the date on which the installation fed electricity for the first time into the grid for which it was awarded green certificates. Once the declaration of participation is verified and approved by the Energy Regulatory Office, the RES installation may participate in auctions.
  • The auction bylaws set no specific deadline for the verification of submitted declarations of participation in auctions. In accordance with the auction bylaws, a declaration of participation should be submitted to the online auction platform sufficiently in advance to "objectively allow for the verification of the declaration". Further, if a declaration of participation is submitted too late to allow for its verification before the relevant auction is closed, the installation concerned will not be allowed to participate in such auction. The associated risk is borne by the investor.
  • The auction bylaws set out similar rules for investors developing RES installations that will start operating after the closing of the relevant auction. Such investors should apply for certificates of admission to participate in an auction. However, the application should be submitted sufficiently in advance to "objectively allow for the verification of the application". Considering the deadline set out in the RES Act, the Energy Regulatory Office president should issue or refuse to issue the admission certificate to participate within 30 days from the filing of the application.
  • In general, an investor may act personally (ie, through its management board) or through its attorney in fact or authorised agent. However, according to the auction bylaws, a bid may be signed only by the relevant investor and not by its attorney in fact or authorised agent.
  • Auctions will be held at least once a year and an auction session should last at least eight hours.
  • An auction should be held if at least three valid bids meeting the requirements set out in the RES Act and the auction bylaws have been submitted.
  • A bank guarantee submitted before an installation's participation in an auction (equal to PLN30 per kW of the relevant installation's installed electrical capacity) should be valid (from December 31 of the year in which the relevant auction is held) for:
    • two months in the case of existing RES installations (which started operating before July 1 2016);
    • 25 months in the case of planned photovoltaic projects;
    • 73 months in the case of planned offshore wind farms; and
    • 49 months in the case of any other planned renewable energy installations.

Dates of first auctions

On November 30 2016 the Energy Regulatory Office president announced the dates of the long-awaited first auctions to be conducted under the RES Act. The following auctions will be held on December 30 2016:

  • from 6:00am to 2:00pm – the auction for existing installations that use only agricultural biogas and have an installed capacity of up to 1 megawatt (MW);
  • from 7:00am to 3:00pm – the auction for existing installations that use only agricultural biogas and have an installed capacity of over 1 MW;
  • from 8:00am to 4:00pm – the auction for installations that:
    • belong to categories other than those explicitly listed in the RES Act;
    • have an installed capacity of up to 1 MW (in practice, this means photovoltaic projects, wind farms and hydro power plants); and
    • will start operating after the closing of the auction; and
  • from 9:00am to 5:00pm – the auction for existing installations that:
    • emit no more than 100 kilograms of carbon dioxide per megawatt hour (MWh);
    • have a capacity utilisation rate of more than 3,504 MWh/MW per year; and
    • an installed capacity of up to 1 MW.

For further information on this topic please contact Grzegorz Filipowicz at Norton Rose Fulbright Piotr Strawa and Partners, LP by telephone (+48 22 581 4900) or email (grzegorz.filipowicz@nortonrosefulbright.com). The Norton Rose Fulbright website can be accessed at www.nortonrosefulbright.com.

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