We are only obliged to submit a notification about a unilateral decision on temporarily withdrawing from the EU ETS. In my legal opinion, Poland can unilaterally withdraw from it and notify, that is, inform about it. The information obligation is on our side. For loyalty’s sake it would be good to hold consultations, but that depends on the member state, in this case – Poland. Of course, the European Commission can complain to the CJEU and challenge the validity of the decision claiming that we launched this provision too early. There may be a dispute, but no one can have any objections to the procedure, said professor Waldemar Gontarski, a former Plenipotentiary of the Republic of Poland before the Court of Justice of the European Union associated with United Poland (Solidarna Polska party – ed.) in an interview with BiznesAlert.pl.
BiznesAlert.pl: How can Poland withhold payments under the EU ETS?
Waldemar Gontarski: Declaration 35 was added to the Treaty on the Functioning of the European Union. It makes it possible to infringe on EU’s environmental regulations, which impact energy policy. The strength of the declaration is that it identifies two Treaty provisions, Article 194 and Article 347. The declaration itself is not a binding law, but is used to interpret the law. Article 347 says that if we have particularly close economic and social ties between Poland and a third country like Ukraine, which is involved in a war, it is enough to apply this provision. It allows for the adoption of national measures which are incompatible with the law or the objectives of the European Union. This article allows Poland to unilaterally suspend its participation in the ETS, mainly due to Declaration 35 issued in connection with Article 194 that regulates energy policy.
Does Poland have enough arguments to exercise this right?
Article 347 provides: „Member States shall consult each other with a view to taking together the steps needed to prevent the functioning of the internal market being affected by measures which a Member State may be called upon to take in the event of serious internal disturbances affecting the maintenance of law and order, in the event of war, serious international tension constituting a threat of war, or in order to carry out obligations it has accepted for the purpose of maintaining peace and international security.” However, Declaration 35 states that Article 194 does not affect the right of member states to adopt the necessary provisions in order to ensure the supply of energy, in accordance with the conditions laid down in Article 347. In a nutshell, due to the war in Ukraine and the direct relations of Poland with this state, we have the right to take measures that are incompatible with the law or the goals of the EU, including, in particular, we have the right to suspend our participation in the ETS. It is despicable – especially after the fact that Poland has suffered the first casualties of the consequences of the war in Ukraine – to compare the possible suspension of our participation in the ETS with some kind of an attempt at withdrawing Poland from the EU.
On the basis of articles 194 and 347, in connection with Declaration 35, I drew a proposal for a unilateral suspension of the ETS, for the duration of the war. While it is true that Poland is not in a state of war, Poland’s direct relations with Ukraine and our commitment entitle us to do this. After the explosion of missiles in Przewodowo, we can also draw attention to Article 42 (7) of the Treaty on European Union, which states that in the event of a threat of an armed attack on Poland (this does not have to happen), individual member states, without the intervention of EU institutions and even without a request from Poland, should provide us with all assistance within the means at their disposal. In view of the immediate threat after two Polish citizens have died, it is all the more necessary to apply Declaration 35, which refers to articles 347 and 194 and allows us to suspend the ETS, and in connection with Article 42, paragraph 7, other states have a legal obligation to provide us with assistance, in particular regarding energy. The Treaty could be undermined if Poland was prevented from exercising this right of withdrawal from the ETS. On top of that, the duty of member states to provide all assistance to Poland after her citizens have died as a result of hostilities, makes my argument stronger.
Deputy Minister of Climate and Environment Jacek Ozdoba, talked about Article 347.
Minister Jacek Ozdoba is absolutely right. The event in Przewodowo, which, after all, was predictable, and the fact that we are a front-line state, make the Minister’s statements even more true. The Conference, that is, those who negotiated the Treaty, considers that „Article 194 concerns energy policy, does not affect the right of member states to adopt the necessary provisions to ensure the supply of energy in accordance with the conditions provided for in Article 347”. We are, therefore, to ensure the supply of energy without financial consequences in the form of ETS. It is about the supply of all sources of energy. In addition, Article 194 assumes the full sovereignty of a member state. The Court of Justice of the European Union ruled in this case, when the United Kingdom wanted to aid the development of its nuclear power. The European Commission was then asked for approval, the public aid agreed to it, but the Austrians complained. Then, in 2020, the court ruled that a state has a sovereign right to its energy mix as part of its own resources and can create these resources even by building a nuclear power plant with the support of state financial assistance.
What steps should Poland take to exercise this right?
The European Union does not have to approve this. We are only obliged to submit a notification about a unilateral decision on temporarily withdrawing from the EU ETS. In my legal opinion, Poland can unilaterally withdraw from the ETS and notify, that is, inform about it. The information obligation is on our side. For loyalty’s sake it would be good to hold consultations, but that depends on the member state, in this case – Poland. Of course, the European Commission can complain to the CJEU and challenge the validity of the decision claiming that we launched this provision too early. There may be a dispute here, but as for the procedure, no one can have any objections. There will only be a question on the conditions that would make it possible to use the Declaration, but today they are obvious.
Interview by Maria Andrzejewska