Environmental exploitation fees must be paid by the end of March
Businesses exploiting the environment are required to calculate and pay the relevant fees. The deadline for fees for 2016 is 31 March 2017. Certain exemptions entered into force on 1 January 2017.
Under the Environmental Protection Law of 27 April 2001, anyone who causes environmental contamination shall bear the costs of eliminating the effects of the contamination. This is a fundamental principle of environmental law, known as the “polluter pays” principle. In light of this principle, businesses emitting gases and dusts into the atmosphere, discharging wastewater to water or ground, storing wastes, and the like, are required to pay regular fees for exploitation of the environment.
Duty imposed by operation of law
Under the Environmental Protection Law, entities exploiting the environment are business entities within the meaning of the Business Freedom Act, organisational units that are not business entities, as well as individuals who are not business entities, making use of the environment in a manner that requires a permit. Fees are charged primarily for emitting gases and dusts into the atmosphere (including emissions from vehicles propelled by combustion engines), discharging wastewater to water or ground, abstracting water, and storing wastes.
As stressed in the case law, the duty to pay these fees arises by operation of law (Supreme Administrative Court judgment of 3 November 2015, Case II OSK 498/14). This means that the obligation to pay the fees arises out of the very exploitation of the environment in the respect provided for in the statute.
Amount of fees and record-keeping duties
The amount of fees to be paid depends on the volume of emissions (e.g. the quantity of abstracted water, gases and dusts emitted into the atmosphere, and so on) and the assigned rate. The rates are set by the Minister of the Environment in a notice published in Monitor Polski by 31 October of the preceding year. As a rule, the rates are adjusted each year in accordance with the consumer price index announced by the president of the Central Statistical office. The rates used for calculating the fees are those in force at the time the environmental exploitation took place.
The user is required to determine the amount of the fee and pay it to the account of the relevant province marshal’s office. This does not mean there is no oversight of the correctness of the calculations and payments. Record-keeping and reporting obligations are imposed on entities exploiting the environment, to enable inspections to be carried out.
Under the regulations, a record of data must be maintained and updated each year, in order to calculate the fees and prepare a list of information used for the calculations. The list is filed with the marshal of the relevant province. The deadline for paying the fees for each year and filing the list of information is 31 March of the following year.
It should be pointed out by the way that the record-keeping obligation mentioned above may raise some practical doubts. The provisions of the Environmental Protection Law on this issue date from prior to 18 September 2009. Contrary to the current wording of the act, the records must still contain information about the quantity and type of gases and dusts emitted into the atmosphere and the data on the basis of which these quantities were determined. This is also confirmed in the case law (Supreme Administrative Court judgment of 6 February 2014, Case II OSK 2139/12). For the sake of order, it should also be pointed out that there are separate recording-keeping obligations applicable to wastes.
Exemption from fees and obligation to file list of data
Under the act, fees are not paid for types of exploitation of the environment for which the annual amount of the fee does not exceed PLN 800. This exemption may be raised by up to half through a resolution of the province legislature. So before paying the fee it should be determined whether the entity is exempt from payment.
Moreover, from 1 January 2017, if the annual fee for each type of environmental exploitation indicated in the act does not exceed PLN 100, there is also no obligation to submit the list of information and data used for calculation of the fee. But even in that case, the law does not exempt entities from the record-keeping obligation.
The exemption from the obligation to file the list was introduced by the Act of 16 December 2016 Amending Certain Acts to Improve the Legal Environment of Businesses (we reported on the portal previously about other important changes introduced by this act). According to the justification for that bill, the exemption was a rational effort to eliminate an unnecessary administrative burden that businesses were often not even aware of.
Sanctions
Fees for exploitation of the environment are governed as relevant by the Tax Ordinance. Thus the failure to pay fees on time also requires the user to calculate and pay interest on delay. If the user completely fails to pay, the competent authority can, as in tax cases, issue a decision assessing the fee that is due. Unpaid fees can be enforced through administrative execution proceedings.
Annual reporting obligations
The need to pay fees does not exhaust the periodic obligations connected with exploitation of the environment. For example, the Act on the System of Management of Emissions of Greenhouse Gases and Other Substances of 17 July 2009 requires entities exploiting the environment to prepare and file with the national emissions database, by the end of February each year, a report for the prior calendar year with detailed information about the level of emissions of greenhouse gases and other substances to the atmosphere. Another set of reporting obligations which must be fulfilled by 15 March of each year are provided for in the Waste Act of 14 December 2012 (aggregate set of data on quantities of generated wastes) and in the Act on Management of Packaging and Packaging Waste of 13 June 2013 (report on management of packaging and packaging waste).
Serious consequences of lateness
Without doubt, the catalogue of obligations connected with exploitation of the environment is extensive. Moreover, compliance is generally left up to the entities themselves. These obligations must not be ignored. Any failures in this respect may carry serious consequences even in the case of minor infringements. For example, failure to pay the fees when due creates arrears, and presenting a certificate of no arrears is frequently a formal condition for seeking funds from national or EU sources. Lack of timely payment of environmental fees may make it difficult or impossible to obtain the relevant document when it is needed. Thus businesses need to be vigilant about properly fulfilling their duties as provided for by environmental regulations.
Wojciech Szopiński, Environment practice, Wardyński & Partners
