Brussels, 16/07/2013 (Agence Europe) - Poland must amend its law on shale gas exploitation after the EU Court of Justice found against it on 27 June (Case C-569/10) for having granted hydrocarbon exploitation and extraction authorisations in breach of the relevant directive (94/22/EC), Euractiv.com reports.
The Court thus upheld the action brought in December 2010 by the European Commission which denounced the Polish legislation in this respect as discriminatory. The Commission put forward three grievances: - 1) the Polish legislation on geological work and mining and the implementing regulations giving effect to that legislation set out requirements to be complied with when applying for authorisation for the prospection, exploration and production of hydrocarbons, and places a number of undertakings already operating within Polish territory in a more favourable position than other undertakings; - 2) the Polish legislation does not subject the whole of the procedure for the granting of authorisation (subject to the obtaining of a mining permit and concession) to the adjudication procedure as stipulated in the directive (opinion in the EU Official Journal 90 days before the deadline for submitting applications). Only the acquisition of a mining permit is, in principle, preceded by adjudication procedure subject, however, to the reservation of a two-year right of priority for an undertaking which “has identified and documented a deposit of hydrocarbons and has prepared geological documentation with the precision required for the purpose of obtaining a concession to extract such hydrocarbons”; - 3) the adjudication of applications submitted for the purpose of acquiring an authorisation is not conducted exclusively on the basis of the criteria set out in the directive (technical and financial capacity of the entity, and the way in which it plans to carry out its prospection/exploitation) and these criteria are not public.
In its ruling, the Court finds the Commission is partly right. It recognises, in particular, that Poland failed to meet the obligations imposed by the directive as it did not take all the measures necessary to ensure that: - all interested entities have non-discriminatory access to prospection, exploration and extraction of hydrocarbons on Polish soil; - and “the authorisations to carry out those activities should be allocated in accordance with a procedure under which all interested undertakings are able to submit applications and in accordance with criteria which are published in the EU Official Journal prior to the beginning of the period in which applications must be submitted”. On the other hand, the Court does not recognise as discriminatory the fact that only the acquisition of the mining permit is, in principle, procedure by adjudication procedure.
In practice, this ruling could revoke the arrangements of 100 permits for the exploitation of shale gas granted by Poland and expose the government to requests for compensation from companies excluded from shale gas exploitation. Poland, for its part, indicates that no permit will be affected and that it has already reviewed its legislation in order to eliminate the discriminatory aspects. The Commission will take a stance by the end of the month of August on the compatibility between the directive and this revised legislation. (FG/transl.jl)