The obligation to conduct energy efficiency audits was supposed to be implemented into Polish law in 2015, but it hasn’t happened yet.
With the goal of reducing the consumption of electricity and achieving greater energy savings at the EU level, large enterprises are required to conduct energy efficiency audits, that is, a study of the consumption of energy, every four years. The purpose of the audits is to obtain the relevant knowledge about the profile of the current energy use by the enterprise and also to identify how and to what degree it is possible for the enterprise to achieve energy savings.
The obligation to conduct energy efficiency audits was supposed to be introduced into Polish law in 2015, but there are still no signs that enterprises in Poland will be subject to this requirement anytime soon.
EU obligation to conduct energy audits
The Energy Efficiency Directive (2012/27/EU) was adopted on 25 October 2012. The EU lawmakers focused on the issue of improving energy efficiency in the member states in light of their growing dependence on energy imports, limited energy resources, the fight against climate change and the economic crisis, and improvement of the EU’s industrial competitiveness, as well as to achieve economic growth and create high-quality jobs in sectors related to energy efficiency.
Adoption of the directive was also tied to the necessity to meet the targets identified in the “Europe 2020 Strategy,” which calls for energy savings in the EU of 20% by 2020. Art. 8(1) of the directive obligates member states to ensure that all enterprises other than SMEs undergo an energy audit. The audits were to be conducted pursuant to national regulations by 5 December 2015. The audits were to be conducted by qualified or accredited experts, or implemented and supervised by independent authorities. Energy efficiency audits were to be conducted at all large enterprises, i.e. those with annual average employment of 250 people or more, annual turnover of greater than EUR 50 million, or an annual balance sheet total of greater than EUR 43 million.
So far Poland has failed to implement the rules provided for in the directive.
Energy efficiency audits under Polish law
In Poland, energy efficiency audits are currently governed by the Energy Efficiency Act of 15 April 2011, which requires such audits to be conducted in certain instances.
This act imposes the requirement to conduct an energy efficiency audit only in the case of an enterprise seeking to participate in an energy efficiency tender organised by the President of the Energy Regulatory Office. Entering the tender requires submission of a declaration enclosing the findings of the energy efficiency audit. A condition for winning the tender is achievement of savings at a factor for approval of offers which is calculated annually and announced by the Minister of Economy. The enterprise that wins the tender obtains energy efficiency certificates (known as “white certificates”). Upon completion of the project in accordance with the tender declaration, the enterprise is required to notify the regulator accordingly within 30 days after completion of the project and to conduct a new energy audit.
Projects that have already been completed (on or after 1 January 2011) are also eligible to participate in tenders. However, projects that have received a thermo-modernisation bonus or funding from the EU or state budget are excluded from participation in tenders.
Therefore, the requirement for enterprises to conduct energy audits is currently limited to those taking in part in a tender organised by the President of the Energy Regulatory Office.
On 29 December 2015 the Sejm adopted an amendment to the Energy Efficiency Act extending by one year the regulator’s authority to conduct tenders for selection of projects encouraging improvements in energy efficiency which are eligible for white certificates, and to issue white certificates to the winners of the tender. On the same day the President of the Energy Regulatory Office announced a tender for 2016. Enterprises seeking to participate in the tender have until 28 January 2016 to file tender declarations with the regulator.
Efforts to implement the Energy Efficiency Directive
The previous Sejm was working on amending the Energy Efficiency Act in order to comply with the obligation to implement the Energy Efficiency Directive. That proposal is currently being worked on by the Permanent Committee of the Council of Ministers.
Under the proposal, large enterprises would be required to conduct energy audits every four years. After conducting the audit, the enterprise would be required to notify the regulator within 30 days together with information about the achievable energy savings identified in the audit.
But to date the directive has not been implemented. It is also not known whether Poland will face any sanctions for failing to implement the directive on time. Nonetheless, businesses operating in Poland will not need to worry about incurring additional costs in the immediate future to conduct energy efficiency audits.
Karol Czuryszkiewicz, Joanna Goryca, Energy Law Practice, Wardyński & Partners
