The End of the Energy Law
Electricity Law, Gas Law and Heat Law instead of Energy Law.
The enactment of the Energy Law Act on 10 April 1997 as a single Act governing entirely the three basic energy sectors: electricity, gas and heat, created for that time a coherent system of regulations which brought the Polish law in line with the conditions of market economy. The structure of the Act was imposed by the scope of the Energy Management Law of 6 April 1984, repealed by the Energy Law, which also covered the same sectors. The Energy Law was based on the assumption that, wherever possible, uniform legal solutions should be put in place for all energy sectors (e.g. as regards concessions, tariffs, access and grid connections, etc.) and that the solutions should be more diverse for individual sectors at the level of Regulations, i.e. acts implementing the Act.
The development of the energy sector, Poland’s accession to the European Union and the need to adapt national regulations to the changing European regulations, or the judgments of the Constitutional Tribunal, have resulted in the Act being amended over a hundred times since 1997. In addition, the Energy Law has been extended by separate special Acts regulating specific areas of the energy sector, the best example of which is the Act of 20 February 2015 on renewable energy sources or the Act of 8 December 2017 on the capacity market. These Acts are positioned in the Polish legal system as special provisions in relation to the Energy Law, referring to this Act in specific areas. As a result, the Energy Law has lost its earlier character of a legal act containing standards of the nature of fundamental principles applied in all sectors and comprehensively regulating the entire energy sector.
Currently, the provisions applicable to all sectors are separated by groups of provisions applicable only to individual energy carriers. Additional provisions can be found in special Acts. As a result, the Energy Law has become internally incoherent and the energy market participant faces many difficulties in applying the law, especially when a given issue is subject not only to the Energy Law but also to special Acts. For example, the catalogue of statutory definitions in the Energy Law itself has expanded fivefold since the date of its adoption. Subsequent amendments were often made in a very fast manner, and the addition of provisions to those previously added by the earlier amendment resulted in the Act being full of articles with exceptionally extensive and rare numbering, such as Article 5ab or Article 9 Section 3o.
The 2019 adoption by the European Union of a package of new directives, amendments to the existing directives and regulations for the energy sector makes it necessary to make another amendment to the Polish law, including the Energy Law. On this occasion it would be advisable to replace the Energy Law with a new Act. It would be advisable to follow the European Union in adopting new separate Acts for individual sub-sectors instead of a single Act for all energy carriers. The only such attempt was made in 2012, when the then Ministry of Economy developed a package of sectoral laws for energy. However, the package was not adopted. It was replaced by an amendment to the Energy Law and enactment of the Renewable Energy Sources Act. Since then, the quality of the Energy Law has deteriorated even more from the point of view of the comfort of applying this Act. A separate electricity law, gas law and heat law would make it possible to regulate all areas in an orderly manner using a consistent terminology. It would be easier to make further amendments to such Acts, following the changes made at the EU level, which from the beginning have been made on a sectoral basis. This is a major task that requires time and involvement of teams of specialists in different fields. The energy law we have known for over twenty years has exhausted its capacity to adapt.