Michał Kubicz, a trainee legal adviser and lawyer with
GLN's Infrastructure and Energy Department, reviews the main aspects of
the document and discusses how permits may be transferred under the
environmental protection regulations. He also examines newly published
guidelines from the Environment Minister clarifying [the provisions of
the Waste Act which regulate] the use of waste delivery cards (karta
przekazania odpadu).
Frequent ownership changes among market participants are a phenomenon
which accompanies economic growth. These changes usually take the form
of trade in shares of commercial companies. It is very common, however,
that it is not shares that are the object of transactions but
enterprises within the meaning of Article 551 of the Civil Code as a
set of tangible and intangible assets used in business.
Investors should bear in mind, however, that in such cases the transfer
of ownership of a given enterprise does not result in an automatic
transfer of permits and other administrative decisions relating to this
enterprise onto the buyer. This rule applies in particular to the
so-called “environmental” decisions.
Principle of non-transferability of administrative decisions
Permits and other administrative decisions have, in principle,
a strictly individual character – they are addressed to particular
entities to which certain specific rights and obligations have been
extended. An addressee of a decision cannot freely dispose of such
rights (or obligations) as this competence rests with the
administrative authorities which had issued the decision in the first
place.
Exception to the principle – acquisition of an enterprise
Notwithstanding the above, in accordance with Article 552 of the Civil
Code, legal actions concerning the enterprise pertain to all its
elements (tangible and intangible). Thus, a buyer of an enterprise
takes over the rights granted to this enterprise by way of
administrative decisions.
"Exception to the exception" – Environmental Protection Law
It ought to be noted, however, that the issue of transferring licenses,
concessions, permits and other administrative acts is often governed by
special regulations which provide for a different procedure for
assigning rights and obligations extended under particular
administrative decisions. One such special act is the Act dated 27
April 2001 on Environmental Protection Law (uniform text, Journal of
Laws of 2006, No. 129, item 902, hereinafter the “EPL Act”).
In accordance with the EPL Act, irrespective of the rule provided for
in Article 552 of the Civil Code, a buyer of an installation does not
automatically become the addressee of some “environmental” decisions.
Pursuant to Article 190 of the EPL Act, rights and obligations
resulting from permits concerning a particular installation must be
transferred under a separate decision. Such permit transfer may only be
carried out, if an entity interested in acquiring a legal title to a
given installation files a relevant request. Please note that the
transfer of a permit to the applicant is conditional – it only becomes
effective after he acquires the legal title to the installation in
question.
The scope of application of the rule provided for in the EPL Act does
not apply, however, to certain administrative decisions ensuing from
the environmental protection regulations. The rule referred to in
Article 190 pertains only to permits listed in Article 181, namely:
- integrated permit,
- permit to emit gases or dust into the air
- water permit to discharge sewage into water or soil,
- permit to generate waste.
Under separate regulations, the rules provided for in the EPL Act apply also to water permits to use installations.
Exception to the exception to the exception
The limited scope of the above list gives rise to a question concerning
other permits, not listed in Article 181 of the EPL Act. It is worth to
mention, for instance, administrative decisions referred to in the Act
of 27 April 2001 on waste (Journal of Laws of 2001, No. 62, item 628,
as amended) such as decision on approving hazardous waste management
programmes or permit to carry out certain types of business
(collection, transport, recovery or neutralization of waste) and
certain water permits.
The problem is complex and each administrative decision deserves a
separate answer. However, it seems that other solutions applied in the
area of environmental protection are governed by the general rules of
legal succession provided for in the Civil Code. Thus, the fact of
acquiring an enterprise should result in an “automatic” transfer of
rights and obligations resulting from such decisions to the buyer (it
is recommended only to notify the relevant authorities about the change
of owner of an enterprise for the purpose of changing the addressee of
a given decision).
Such a narrow interpretation of Article 190 of the EPL Act is necessary
to maintain the special character of this Article with respect to the
general rules of the Civil Code, the ratio legis of which is to
facilitate the performance of operations consisting in disposing of
enterprises or organised parts thereof. One argument in favour of such
interpretation is one of the fundamental principles pertaining to the
interpretation of law regulations which consists in a narrow
interpretation of exceptions.
Conclusion
The presented rules of succession require that buyers of enterprises be
particularly cautious and careful. Legal successors should be aware
what rights and obligations are transferred to them as a result of
their acquisition of ownership of the enterprise and what
administrative decisions are subject to special requirements when they
are transferred to other entities.
BILLS:
Bill on amending the Act on Environmental Protection Law
On 12 July 2006, another amending bill to the Act on Environmental
Protection Law (hereinafter the „EPL Act”) as well as other acts was
published. The main purpose behind these amendments is to organise the
norms concerning the procedure of assessing the environmental impact,
protection against noise pollution and competences of the environmental
protection authorities. Moreover, the bill envisages the establishment
of a new institution, namely the National Pollutant Release and
Transfer Register.
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As part of the process of adapting Polish legislation to the EU
regulations, it is also expected that a distinction between different
levels of substances in the air will be introduced. At present, the
only applicable term is that of an admissible level, whereas the bill
in question provides for a new classification:
- admissible level – air quality standard referring to the amount of
sulphur dioxide, nitrogen dioxide, nitrogen oxide, dust, lead, benzene
and carbon oxide in the air,
- target level – term denoting desired amounts of ozone, arsenic, cadmium, nickel and benzopyrene in the air,
- long-term target level – standard set in the national ecological policy and concerning ozone.
The bill provides for a new definition of installation by adding a
reservation that “technologically related installations shall be
classified as one installation, even if they are run by different
entities”. According to the authors, this modification aims at
eliminating recurring attempts to divide installations artificially
between entities which run then for the purpose of evading a number of
obligations, including the obligation to obtain a permit to emit.
As for the changes pertaining to the procedure of assessing
environmental impact, the currently discussed bill extends the
catalogue of decisions which require obtaining the decision “on
environmental conditions of approval of an undertaking”. This decision
shall also be required in the case of:
- obtaining a decision determining the detailed conditions of
extracting ores (in accordance with Article 10 section 2 of the Act of
27 July 2001 on amending the Act on geological and mining law),
- obtaining a decision determining the terms of rehabilitation (in
accordance with Article 106 of the EPL Act) as well as a decision on
rehabilitation and development (in accordance with the Act of 3
February 1995 on protecting arable and forest lands), which concern
undertakings that may considerably affect the area Natura 2000.
One fundamental change resulting from the bill concerned consists in
establishing the Pollutant Release and Transfer Register (Rejestr
Uwalniania i Transferu Zanieczyszczeń), also referred to as the
“National PRTR”. The above data basis is to be a major step towards the
implementation of the provisions of the Parliament and Council
Regulation No 166/2006 of 18 January 2006 concerning the establishment
of a European Pollutant Release and Transfer Register (PRTR) and
amending the Council Directive 91/689/EWG and 96/61/WE, which
constitutes an integrated and publicly accessible system of
environmental information.
The National PRTR is to be maintained by the Chief Environmental
Protection Inspector (Główny Inspektor Ochrony Środowiska) on the basis
of information contained in the reports on pollution release and
transfer amounts submitted by particular installation administrators. A
template form of such a report shall be determined in the ordinance.
Non-fulfilment of the obligation to prepare the above report shall
constitute grounds for the imposition on a given entity running an
installation of a fine amounting to PLN 10,000.00.
Bill on the National Waste Management Plan 2010
On 27 June 2006, the Minister of the Environment presented a bill on
the National Waste Management Plan 2010. The obligation of the Council
of Ministers to adopt waste management plans follows from the Act of 27
April 2001 on waste (Journal of Laws of 2001 No. 62, item 628, as
amended). The said Act also requires that the above documents be
updated at least once every four years. In view of the fact that the
first national plan was adopted by the Council of Ministers on 29
October 2002, the deadline for the first update passes in 2006.
It ought to be emphasised that the Act on waste established a
hierarchical structure of management plans where particular documents
must comply with other reports drafted at a higher level. In
consequence, every change in the national plan is material because it
results in the necessity to modify documents adopted at the local
level.
Ordinance bill on product fee rates
On 24 July 2006, the Minister of the Environment published an ordinance
bill on product fee rates, which is to replace the existing ordinance
dated 9 August 2005 (Journal of Laws of 2005 No. 157, item 1325). The
new regulation is to become effective as of 1 January 2007.
The envisaged fee rates pertaining to particular types of products are
higher than the currently applicable ones. Consequently, entrepreneurs
who do not recover and recycle packaging and post-use waste might
notice a slight increase in expenses related to product fees.
MISCELLANEOUS:
Information on the adopted district waste management plans
Districts are increasingly effective in fulfilling the legally imposed
obligations pertaining to the adoption of waste management plans
determined in the Act of 27 April 2001 on waste (Journal of Laws, No.
62, item 628, as amended). Such is the conclusion which ensues from the
report published by the Ministry of the Environment which presents the
stage of preparation of the above documents as on 30 June 2006.
In accordance with the above-mentioned analysis, slightly more than 88%
of districts in Poland have adopted waste management plans, which
accounts for an increased of 8% in relation to the statistics as at the
end of the year 2005. The only voivodeship where all districts have
adopted their plans is the Kujawsko-Pomorskie Voivodeship. The worst
result has been obtained by the Mazowieckie Voivodeship where only 72%
of districts have fulfilled their obligations concerning the plans.
In view of the above, we would like to emphasise that the significance
of waste management plans in the overall regulation of the waste market
in Poland increases steadily. It is worth mentioning that waste
management plans at district level are legal acts which – together with
plans adopted at county and voivodeship level – constitute a framework
for all actions relating to waste management. Non-compliance of a
projected manner of managing waste with the applicable plans
constitutes a premise for refusing to issue a permit to generate waste,
a decision approving a particular waste management programme or a
permit to collect municipal waste. The requirement consisting in
observing the content of the above documents refers also to
entrepreneurs who only have to submit information on generated waste.
Land reclamation
In July of this year, GLN Law firm won a dispute before the Voivodeship
Administrative Court on the refusal to enter a plot of land in the
register of polluted lands as well as the exemption from the
rehabilitation obligation with respect to the plot concerned.
In accordance with the provisions of the Act of 27 July 2001 on
implementing the Act on Environmental Protection Law and the Act on
waste as well as amending certain other acts (Journal of Laws of 2001,
No. 100, item 1085, as amended), certain entities enjoyed the
possibility to report land (up to 30 June 2004), on which “historical”
pollution occurred, for the purpose of entering it in the relevant
register held by the starost. Such notification exempted the reporting
party from the obligation to rehabilitate the land concerned and to
bring it to the required quality standards.
The dispute before the Voivodeship Administrative Court concerned the
decisions issued by the starost as well as the Self-Government Board of
Appeal (Samorządowe Kolegium Odwoławcze) refusing that a polluted plot
of land be entered in the register.
GLN’s win in this difficult case prevented the authorities from
instituting proceedings against its client on imposing the
rehabilitation obligation with respect to the plot of land polluted by
the previous user.
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