Polish national implementation measure – the bill of 22 December 2004 of a greenhouse gas and other substances emission trading addresses contract of sale as an only one, that can be applied in relation to a disposal of emission allowances.

It is a classical mistake of legislators.


The said bill is in force for nearly 5 years now and one can wonder, why - till now – above mistake was not repaired.


There are many provisions, in which the bill of 22 December 2004 of a greenhouse gas and other substances emission trading points out at contract of sale as a only one form of a disposal of emission allowances – see art. 24, art. 26 para. 1 subpara. 2, art. 26 para. 2 – 4, art. 27 para. 1, art. 47 para. 3 and 4.


We must admit, that the Polish legislators were in such an erroneous assumption exceptionally consequent.


The bill does not observe such forms of contracts leading to a transfer of allowances as contract of donation, exchange or other contracts obliging to transfer of the ownership of allowances.


It is obvious, that statutory restriction of economic disposal of allowances to contract of sale only, is unreasonably and would exclude other forms of transfer of allowances.


The market in financial instruments would be also impaired.


However, reasonable will be opinion, that the said bill does not exclude contracts relating to disposal of emission allowances other than contracts of sale.


Such a view is supported by following remarks.


1. The substantiation of the said bill does not set out any reasons, for a contract of sale to be the only one contract in relation to the disposal of emission allowances.


2. Legal system should not – without important reasons – restrict the scope of admissible legal acts relating to emission allowances to contract of sale only. Such reasons are not mentioned by Polish and Community law.


3. It would be also difficult to address social substantiation - contrary to concluding contracts other than contract of sale in relation to allowances.


4. Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC does not use in relation to emission allowances the word “sale” but “transfer” – what suggests a broad scope of possible forms of contracts.


5. Available drafts of a new Polish national implementation measures in relation to ETS do not provide for above mentioned restrictions – they use the term: “disposal of” allowances.


6. In practice in the market - in Poland and in other Member States - there are many offers and contracts, for instance, of exchange of emission allowances.


So, where from originates the concept presented in the said Polish statute, that a contract of sale is the only one, that can be used in relation to emission allowances – it remains the mystery of the Polish legislators.

Polish emission trading bill – unfortunately with many mistakes

Copyright © by Michał Głowacki 2009



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