The concept of replacing the Energy Law with separate Acts for individual energy carriers raises the question whether there are areas that should be governed by uniform standards and whether splitting the Energy Law into several different Acts will make it necessary to copy the same solutions in individual Acts. The answer to this question is positive, although there are not many such areas. One of them should be energy policy, the creation and implementation of which is currently regulated in Chapter 3 of the Energy Law. Such a policy must be a single policy, it must cover all energy carriers and constitute a coherent whole. A single authority responsible for energy policy must be designated within the government administration and this task cannot be fragmented.
Another question that needs to be answered is whether the state’s regulatory function over individual energy sub-sectors should be performed by a number of specialised regulatory authorities established under the Acts governing those individual sub-sectors, or rather a single multi-sectoral regulatory authority should be maintained. Should its tasks and competences be determined by a single Act or by individual Acts? If a single authority is chosen, should it be a single-person authority or rather a collective one? Finally, it is necessary to consider what should be the path of appeal from a decision of the regulatory authority. The options on the table are either to maintain the current path of appeal to the common court or to apply the appeal to administrative courts which is a standard for administration.
After more than twenty years of operation of the President of the Energy Regulatory Office, it may be concluded that this authority has not demonstrated in its operations the need to divide its competences into separate authorities regulating particular energy carriers. In the current legal status, the ERO President has been appointed by the Energy Law, but many other special Acts entrust him with various competences and tasks. The package of sectoral Acts which are to replace the Energy Law should not do away with this office and establish a new one. The same Act which will regulate the tasks of the Minister in charge of energy in the scope of energy policy should also provide a legal basis for further functioning of the ERO President, while maintaining, in principle, his powers in their current form. Of course, it may be a matter for discussion whether specific powers should be further assigned to the ERO President, but this does not change the fact that, as a rule, the powers of the ERO President and his tasks have been shaped correctly over the years. These powers will evolve, among others, due to the need to adapt Polish law to EU law. The Acts to be adopted for individual energy carriers should include provisions of substantive nature constituting the legal basis for decisions issued by the ERO President.
From time to time there is a repeated discussion of whether it is advisable to change the nature of the regulatory authority from a single-person authority to a collective one. Today, hardly anyone remembers that at the stage of working on the draft Energy Law between 1993 and 1997, the regulatory authority was for a long time planned as a collective body – a five-member Energy Regulatory Commission, whose President was only to be its chairperson. It was only at the end of the legislative work before the bill was submitted to the Sejm that the collective body was dropped in favour of the single-person management known to us today. The increase in the scope of tasks of the regulatory authority resulting from the constantly growing number of Acts assigning new tasks to that authority, makes it necessary to ask whether it is worth returning to the concept of a collective authority. There are enough collective regulatory authorities in the Polish administration system to be able to compare the pros and cons of such a solution if applied to the energy sector. The main advantage of a collective authority would be to increase its independence if, for example, the terms of office of individual commission members were longer than at present and at the same time expired at different times. It would be advisable for members of the Energy Regulatory Commission to have backgrounds in diverse specialties and experience in different energy sub-sectors.
The last system-related issue to be considered when designing the new legislation is appeals against decisions of the regulatory authority. The ERO President was the second authority, after the President of the Office for Competition and Consumer Protection (formerly the Antimonopoly Office), whose decision is subject to appeal to the common court, instead of a complaint to administrative courts. For this purpose, a separate division was established in the regional court adjudicating cases in the first instance – the Competition and Consumer Protection Court. Later, an analogous model of the procedure was applied as a path of appeal against decisions of a number of other regulatory authorities, President of the Railway Transport Office (UTK), President of the Electronic Communication Office (UKE) and, more recently, against decisions of the regulatory authority in cases involving the water and sewage market.
Leaving aside procedural issues which are mostly of interest to lawyers only, the activity of the courts should be assessed rather positively, and the legal solution applied should be considered well suited. Certainly, a great advantage of this path is the existence of a court specialising in cases with a similar substantive profile, cases concerning the market which in a certain significant part is a natural monopoly. This allows the judges adjudicating these cases to achieve in-depth specialisation, which is necessary in this type of cases. Unlike administrative courts, which, if a violation of the law is found, review the case setting aside a decision, in regulatory cases the court may not only set aside, but also vary the judgment and rule on the merits of the case based on the evidence gathered in the case. This makes the proceedings more effective. Any shortcomings or drawbacks that can be observed, such as the duration of proceedings, are rather due to the general weaknesses of the civil procedure applied to hear regulatory cases and the organisational deficiencies of all courts.