Reality Bites

The last meeting of the Polish Parliamentary Energy Committee several days ago  may represent a turning point on the law. For the first time in four years, there was a real discussion of the implications of state aid requirements in the European Treaty. Don't expect to Google this and find a sophisticated discussion of the past Commission decisions or the ECJ decision in the Dutch NOx case, but there was a glimmer of realization.

Hey, we need to actually have a RES support system that meets the European Commission rules on state aid. That seems to require that the Commission approve of what support system is implemented.  The critical step of figuring out what is actually required to meet the state aid rules is still seemingly beyond the scope of legislative discussion... but there seems to be a new awareness that something important is involved.

This is ironic in many ways. The Polish Government had a competition specialist heading the Office of Competition and Consumer Protection, who was writing for the last two years on the subject, with apparently no effect except to make the Prime Minister nervous.

Ms. Tomkiel, former head of UOKiK, advised the Ministry of Economy that the certificates were state aid and that they had to be notified and approved in Brussels , which has never happened. She told them that unapproved aid was unlawful and would have to be returned. She advised them that support from certificates would have to be levelized across technologies, which gave rise to the idea of proposed correction coefficients in 2012-2013.

After a year long divorce from reality, some folks are now apparently aware that there is a problem here. No one in government has yet proposed the only possible solution, immediate enactment of a levelized green certificate program as almost was done in 2013, but it is likely that even politicians with no stomach for details will realize the need for this remedy. The plan for delaying all of this until after the Parliamentary elections probably seemed like a plausible idea, assuming that Poland controlled the schedule for the corrective surgery,  but that assumption is largely an illusion and one that is now rapidly fading. Without the enactment and notification of a revised green certificate law, the certificates issued since 2005 will be declared unlawful, null and void.

This has sounded far-fetched to the relatively unsophisticated folks who write Polish laws, but their own in-house expert on the subject has told them the same thing. Some MPs are now suggesting that maybe Poland will have no approved support system without  urgent action. Soon they will likely realize that it is not just about future support, but everything that has been done since 2005. The work has been done on the legislative fix and only needs to be dusted off and quickly enacted and notified to DG Competition in Brussels. The only issue left is how much blood will be left on the floor by the negligence of the government. State-owned utilities have the most to lose and should be leading the charge to get this fixed, but a rational response has yet to emerge from that quarter.


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