Consequences of Failure to Notify on Green Certificate State Aid
|The Great Polish Train Wreck of 2015?|
The Commission has apparently told UOKiK that it contends that the certificates are state aid. [An obvious point since every certificate program since 2001 has been classified as state aid by the Commission]. See references in "Why Poland Urgently Needs a New Green Certificate Law," gramwzielone.com [PL]. [English version]. The Commission has the authority to declare state aid unlawful and is required to do so if it is not notified. The Commission has at least one complaint on Green Certificates pending which requires a formal decision.
What in the world do Polish officials think will happen?
The only solution is to revive the 2012 draft law with levelized certificates based on costs of production. This is required by the State Aid Guidelines and was recognized as necessary by UOKiK. It will also be necessary to enact the ban of aid to depreciated hydro and anything else fully depreciated now or in the future. Co-firing of any type will have to be justified by its costs of production. After the many times that the Ministry of Economy and even the Prime Minister's office  have indicated that co-firing is overcompensated, this means some sharp reduction or termination of the support altogether. The Institute of Renewable Energy recommends no support based on a wide range of data.
Failure to promptly take up an emergency bill to enact this remedy and to then notify the Commission to repair the system will be one of the most irresponsible actions ever taken by the Polish Government.
 The Commission apparently has already advised the Office of Competition (UOKiK) in Warsaw that the certificates are state aid. See UOKiK correspondence to Ministry of Economy, November 28, 2013: :According to the OCCP, the certificate system constitutes state aid. Detailed clarification in regard has been presented in previous correspondence [citing June 5, 2012 and August 10, 2012 correspondence from UKOK to MG]'. Moreover, similar conclusions have been expressed by the European Commission within the framework of the ongoing process notification of the restoration of the certificate system for high-efficiency co-generation.” (emphasis added).
“Under the Treaty, the Commission is given the competence to determine whether or not the notified aid measure constitutes State aid in the sense of Article 87(1) of the Treaty, and if it does, whether or not it qualifies for exemption under Article 87(2) or (3) of the Treaty. Member States cannot grant any State aid unless it has been notified and authorised by the Commission. Any aid, which is granted in absence of Commission approval, is automatically classified as “unlawful aid”. DG Competition, Vademecum Community law on State aid , 30 September 2008, p. 13 (emphasis added). UOKiK pointed this out to the Ministry of Economy on June 5, 2012.