Currently, there is no dedicated hydrogen law in Poland. Existing provisions of the Polish legal framework primarily capture hydrogen in transportation, although this area is also not well covered. According to the draft Poland’s Energy Policy for 2040, the legal framework for hydrogen will be enacted in 2021 and, pursuant to the latest announcements of representatives of the Ministry of the Climate, a dedicated Act on hydrogen is scheduled to be published in 2021. Poland’s Hydrogen Strategy shall be presented still in 2020.
Policy and government programmes
As previously mentioned, there are a number of government initiatives such as the National Centre for Research and Development, the Low Emission Transportation Fund, as well as the Hydrogen Technology Development Programme that has formulated the National Energy and Climate Plan 2021-2030.
Hydrogen legislation in Poland is fragmented. There is no dedicated act for hydrogen in the Polish legal framework. Thus, the stakeholders are forced to follow general rules arising from the Polish system of energy law, which are currently not always suitable for the development of the hydrogen technology.
However, to the extent that it is technically possible to transport hydrogen via the gas network, hydrogen could be treated as a gaseous fuel under the definition provided by the Energy Law Act. Thus, general provisions for gaseous fuels are applicable in this respect. Nevertheless, there are currently no direct provisions concerning hydrogen’s injection into a gas system or a storage system.
Recently, the Ministry of the Climate has proposed an amendment to the Act on the Fuel Quality Monitoring and Scrutinising System. The draft legislation classifies hydrogen within the definition of fuels under this Act and outlined its use for transportation. Furthermore, the Act deals with the quality of such hydrogen. Under this Act, the minister responsible for energy matters was authorised to issue the regulation, which provides in detail the quality conditions for hydrogen and for collecting samples of it for control purposes.
A licence for the generation of gaseous fuels is not required by the Energy Law Act. It is worth mentioning that there is a general requirement to obtain a licence in order to generate electricity from hydrogen.
Connection and distribution
Pursuant to the Energy Law Act, there is a requirement to arrange a connection agreement to the gas network and the Distribution System Operator (“DSO”) is responsible for providing conditions concerning connection to the grid. Activity of DSOs is also regulated, in particular a relevant licence is required alongside a number of other regulatory requirements.
The Act on Electromobility and Alternative Fuels deals with the use of hydrogen and liquid biofuels in transportation. It sets out rules for the development and operation of infrastructure and relevant disclosure requirements concerning alternative fuels and applies in particular to hydrogen. This act also provides a framework for refuelling stations for hydrogen-fuelled zero-emission buses.
The Act on Bio-components and Liquid Bio-fuels sets out the operating principles for the Low Emission Transportation Fund, which provides support for hydrogen transportation projects, amongst other alternative fuel projects.
The Building Law and the Act on Spatial Planning and Land Development are fundamental in determining where and how hydrogen installations can be constructed. They are also crucial in the permitting process of planned projects as they determine aspects connected with occupancy and security, since hydrogen is considered as a flammable and explosive gas.
Secondary legislation and other legal documents
Relevant secondary legislation includes the Minister of Energy’s Regulation on the granting of support by the Low Emission Transportation Fund for the acquisition of new, hydrogen fuelled vehicles by natural persons for non-business purposes. However, stakeholders claim that there are still issues related to the lack of support for vehicles which are leased or rented long-term.
The Regulation of the Minister of Energy has detailed rules for shaping and calculating tariffs and settlements in gas trading and is vital for matters associated with tariffs.
Another regulation worth mentioning here is the Regulation of the Minister of the Economy on the detailed conditions for the functioning of the gas system. This Regulation governs, inter alia, the detailed conditions related to the transport, distribution and storage of gaseous fuels and the quality parameters of such gaseous fuels.
The draft of Poland’s Energy Policy for 2040 and the National Energy and Climate Plan 2021-2030 each recognise the key role that hydrogen will play in the Polish energy mix and the need to develop hydrogen technology.
Regulation of hazardous activities
The Act on Protecting the Environment (together with its secondary legislation), is key in Poland as it concerns environmental protections, in particular for the scope of the integrated permit, which is a required and crucial permit for hydrogen generation installations. This Act is also important as it regulates other permits, such as emission permits.
The Act on Preventing Environmental Damage and the Remediation of Environmental Damage deals with liability and subsequent remediation for damage caused by, inter alia, installations for which an integrated permit is required. According to the Regulation of the Council of Ministers on projects that may significantly affect the environment, the installations required for hydrogen storage would qualify as such installations under this Act.
The Act on Providing Information on the Environment and its Protection, Public Participation in Environmental Protection, and on Environmental Impact Assessments concerns the carrying out of environmental impact assessments and includes an obligation to conduct such assessments in particular with respect to planned hydrogen generation projects. For this reason, it is vital for the development phase of hydrogen projects. Moreover, this Act is a guarantee of the participation in the proceedings concerning the issuance of the integrated permit for hydrogen generation installation. Installations that generate gases, such as hydrogen, are treated as potentially materially polluting installations under the regulation published by the Minister of the Environment.
Transport, import and export of hydrogen
Since there are no dedicated regulatory solutions for hydrogen under the existing legal framework in Poland, the provisions applicable for gaseous fuels should be taken into account in this respect. There is a general obligation to obtain a licence for the business activity of the distribution of gaseous fuels, however, the distribution of gaseous fuels in the network with a capacity below 1 MJ/s is not subject to the licensing requirement. Specific rules related to transport of dangerous goods apply to the road and railway transportation. The Regulation of the Ministry of Health on the method of marking places, pipelines, containers and tanks for storing or containing hazardous substances or hazardous mixtures would also apply to the transportation and storage of hydrogen.