Energia Wiatrowa Energia Wiatrowa - BiznesPolska

Wind Power in Poland Business Directory 2010
New legislation triggers changes
10
There are probably no statistics available
for the number of investors in the wind
farm sector who have experience with the
pre-payment mechanism of “bonded
warehouses”. With the March amendments
to the Energy Law, however, wind
farm investors – and particularly speculators
who have had free access to grid connections
– will now have to “pay to play”,
and will no longer be able to keep their
free option on grid access.
A key change to the Energy Law is that connection
applications to the electricity grid
will now require a down-payment, payable at
the moment the request is made. The fee is
30 zlotys per kV of connection capacity (limited
to the lesser of: 3 million pln or actual
connection costs).
The change is meant to address criticism
that legitimate, well-capitalized industry investors
have been unable to get access to
Poland’s electricity grid, since earlier applicants
(in some cases without the financial resources
or industry experience to develop a
wind farm) had been granted grid access for
free and without demonstrating the intent or
ability to put power into the grid.
Recent Legal changes
Amendment to Energy Law (in force as of
11 March 2010) particularly affects:
a) Grid connection conditions
a. Fees for grid connection applications
= 30 pln per KW applied capacity
b. 9 September 2010 deadline for payments
- applicable to those who hold
valid grid connection conditions expiring
after this date
c. Fees capped at 3 million pln or actual
connection costs - the lower of.
d. Requires new documentation - local
zoning plan or zoning decision - to be
attached to application
e. Grid connection issuing authority
must issue decision within 150 days
f. Grid utility must publish full data on
existing and pending grid applications
b) New financial support system impacts
existing green certificates system
a. Entities trading with end customers
must purchase green or brown certificates,
and present to the regulator;
or pay substitution fee
The down-payment is not the only change
– the investor must also now enclose with the
request an excerpt and a sketch of the local
zoning plan (if such a zoning plan exists for
a given site) or decision regarding planning
permission (if there is no zoning plan) allowing
the wind farm to be located on a given
site. While the decision is made at the request
of an individual investor, it is in the general
public domain. Opportunistic “use” of a successful
request for amendment of the zoning
plan filed by a competitor will therefore become
possible.
“Grandfather” clauses and preexisting
rights
Prior to the acquisition of a wind farm project
at an early stage – before the construction
permit is obtained and the proverbial spade
slices into the ground – a painstaking due diligence
is carried out, including examination
of the grid connection conditions. Since the
March amendments are now in force, more
attention should be paid to the connections
conditions date than was previously warranted.
Here’s how it works: those investors that
obtained the connection conditions prior to
11 March 2010 and for whom the period of
validity of the connection conditions ends
after 11 September 2010 have the obligation
to make the down-payment by 9 May 2010.
If they fail to comply with these requirements
the connection conditions expire. In
a second scenario, if an investor obtained
the connection conditions far enough back
in time that they expire prior to 11 September
2010, he does not have to do anything –
their conditions will continue to be valid despite
the lack of down-payment – but of
course only until the validity period ends. Investors
of this type should therefore hurry
with the signing of the connection agreement.
For example, I once negotiated a connection
agreement for a client for almost a
year after the technical conditions for connection
had expired. Well, this will no longer
be possible.
A third scenario is investors who managed
to file the request for connection conditions
before the amendments came into force but
have not yet obtained them. They now have
the obligation to make the down-payment
but also to provide an excerpt from the local
zoning plan or planning permission. Time
limit? No later than the beginning of September
this year.
Dr Eligiusz Krześniak, Partner
Squire Sanders Święcicki Krześniak sp.k
Consolidation and “Musical Chairs”
– the music just stopped
The purpose of the amendments is to bring
order to the market, to speed up the procedure
for issuing grid conditions – which recently
has begun to look more and more
like a crawl – and eliminate from the game
small businesses that do not have the appropriate
financial resources and are hoarding
connection conditions for short-term
profit.
Also the introduction of a financial
threshold should free up grid connections,
consequently leading to an increase in the
number of wind farms feeding power into
the grid. There is a certain paradox that in
a country in which the number of major
wind farms actually operating is close to a
single digit, the number of issued grid connection
conditions for future “virtual”
wind farms has reached almost 20,000
MW.
It is difficult to assess the extent to
which these objectives will be realized. We
will certainly see an improvement in the
time needed for the procedure of issuance
of conditions. I am sceptical however of