There are, however, some doubts with respect to legal grounds for such ex post correction of the NAP. When it comes to the details, the legal basis for the draft Regulation is Article 15(4) and the Article 95(1) of the Law of 28 April 2011 on the greenhouse gas emissions trading scheme (Journal of Laws No. 122, item 695, hereinafter referred as the ‘Law on the ETS”)
Pursuant to the said Article 15(4) of the Law on the ETS the Council of the Ministers adopts the NAP in the form of the Regulation, mindful of the necessity for ensuring the equality of the treatment of installations covered by the scheme and listed in the NAP, ensuring the access to emission allowances for new entrants, the necessity for ensuring energy security of the State, as well as the common character of the NAP. Moreover, according to the Article 95(1) of the Law on the ETS, implementing measures issued under the previous provisions are binding for as long as the new implementing acts, issued on the basis of the Law on the ETS will enter into force. Article 95(1) of the Law on the ETS further states that the implementing measures issued under the previous provisions (consequently also the Regulation on NAP for the period 2008-2012) may be amended, pursuant to the above-quoted Article 15(4), where ‘it is justified by the economic reasons and the reasons for the energy security of the State’.
The official reasons for the draft Regulation explain that the said Article 95(1) constitutes a transitional provision making possible the amendment to currently-in-force Regulation of the Council of Ministers of 1 July 2008 adopting of the present NAP (published in the Journal of Laws No. 202, item 1248, referred to as the ‘Regulation on NAP’). The document also mentions that the intention of the amendment to the Polish NAP is to correct the allocations for the emission allowances which, in effect, will cause the covering of the real emissions from installations. Notably, new entrants and installations subject to change will have a chance for allocation of free emission allowances, thus enabling level playing field between them and incumbents.
If there occur legal disputes between the Polish Government and the installations subject to a decrease in allocations, the important matter may potentially be the interpretation of the judgement of the Court of the First Instance (in case T-374/04) the Federal Republic of Germany v the Commission of the European Communities on the admissibility of the ex-post adjustments in NAP’s.
It seems, however, not entering into details, that there are significant differences as regards the factual circumstances in both situations (the current correction of the Polish NAP and the case being subject to the above-mentioned judgment).
Some interesting considerations that may be useful in resolving the present doubts flow also from the judgment of the Court of First Instance of 23 September 2009 in Case T‑183/07 the Republic of Poland against the European Commission.