POLAND Law and Practice Contributed by: Tomasz Młodawski, Krzysztof Cichocki, Łukasz Wyszomirski and Krzysztof Fasula, Sołtysiński Kawecki & Szlęzak
1.4 Sale of Power Industry Assets The sale of power industry assets in Poland is sub- ject to general corporate law (the Commercial Com- panies Code and the Civil Code), competition law and sector-specific regulation. Transactions involving elec- tricity generation, storage, transmission or distribution assets may trigger regulatory notification and approval requirements under several regulations. Merger Control Concentrations of undertakings meeting the relevant turnover thresholds require prior approval from the President of UOKiK, or from the European Commis- sion where the EU Merger Regulation applies. Polish thresholds are met where the combined worldwide turnover of the parties exceeds EUR1 billion, or the combined turnover in Poland of the undertakings par- ticipating in the concentration exceeds EUR50 mil- lion. The President of UOKiK examines whether the proposed concentration would significantly impede effective competition, particularly by creating or strengthening a dominant position, and may clear transactions unconditionally, impose remedies, or prohibit the transaction. Strategic Investment Screening As described in 1.3 Foreign Investment Review Process , transactions involving entities designated as protected under the Strategic Investments Act (including major electricity producers and distributors) require the prior consent of the competent minister. The review considers the potential impact of the trans- action on national security and the continuity of critical energy infrastructure. 1.5 Central Planning Authorities Central planning and regulatory functions in the Polish electricity sector are distributed between three prin- cipal bodies: • the Minister of Energy and the Minister of Climate and Environment; • the Plenipotentiary for Strategic Energy Infrastruc- ture; and • the Presidents of ERO and the TSO. The Minister of Energy and the Minister of Climate and Environment are the principal governmental bodies
responsible for energy policy, including formulating and updating Poland’s long-term energy strategy (cur- rently, the Energy Policy of Poland until 2040, and the National Energy and Climate Plan). They also draft and consult the power market-related regulations submit- ted to the Parliament for adoption. The President of ERO is the independent regulator for the energy sector. The President’s remit includes: • issuing, amending and revoking licences for power generation, transmission, distribution and trading; • approving tariffs for transmission and distribution; • monitoring markets; • allocating the CfD-based incentive schemes; and • enforcing compliance with the Energy Law and directly applicable EU electricity regulations, including Regulation (EU) 1227/2011 on Wholesale Energy Market Integrity and Transparency (REMIT). The President of ERO co-operates with the Agency for the Co-operation of Energy Regulators (ACER) in mat- ters relating to cross-border regulation and wholesale market monitoring. PSE S.A., acting in its capacity as TSO, performs the core system planning and operational functions, including: • ensuring short- and long-term system adequacy; • developing the national ten-year network develop- ment plan; • allocating cross-border capacities; • operating the balancing market and markets for ancillary services; and • administering the capacity market. PSE S.A. is also required to prepare annual reports on the security of electricity supply. 1.6 Recent Changes in Law or Regulation One of the most significant recent regulatory devel- opments concerns the reform of the grid connection process. Legislative amendments to the Energy Law have introduced measures aimed at enhancing grid flexibility, optimising the utilisation of existing network infrastructure, and tackling the queue for grid connec- tion. In particular, the concept of flexible and config-
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