Financial penalties in the law on electromobility and alternative fuels

In order for legal norms to actually have a real effect and impact on reality, it must be borne in mind that they must be adequately sanctioned. Otherwise, a disposition devoid of sanction, the so-called lex imperfecta, will not be able to achieve the relevant intended objectives. The issue of this type of norms has been addressed in doctrine for many years. The name leges imperfectae and the normative solutions related to it already existed in Roman times, where a distinction was made between leges perfectae – norms the breach of which results in the invalidity of actions taken; leges plus quam perfectae – resulting in the invalidity of actions and an additional penalty; lex minus quam perfectae – the breach of which, while maintaining the validity of actions, results in a penalty; and leges imperfectae – devoid of any legal sanctions. In Roman law, an example of a law of the latter type was the lex Cincia (year 204 BC), which prohibited – outside a certain range of persons – excessive donations, but did not provide for any negative consequences in the event of a breach of this prohibition [1].

In order to ensure the proper implementation of the provisions that the legislator introduced in the Act of 11 January 2018 on electromobility and alternative fuels (hereinafter: the Electromobility Act), it was decided to apply protective instruments in the form of a catalogue of administrative torts and relevant fines [2]. These mechanisms are among the basic types of legal-administrative sanctions and have a significant impact on shaping the model of state-citizen relations. Often, administrative fines are addressed exclusively to entrepreneurs, but they may also – as, for example, in the Act of 7 July 1994 Construction Law – affect natural persons.

Pursuant to Article 189b of the Code of Administrative Procedure, an administrative fine is understood to be a pecuniary sanction specified by law, imposed by a public administration authority, by way of a decision, as a result of a breach of law consisting of a failure to comply with an obligation or a breach of a prohibition imposed on a natural person, a legal person or an organisational unit without legal personality [3].

Administrative penalties in the Electromobility Act

Administrative fines are referred to in Article 45 of the Electromobility Act. According to it, an entrepreneur who:

1. does not comply with the obligation to provide charging service providers with access referred to in Article 3(1)(10) – a fine of between PLN 5,000 and PLN 150,000;
2. makes the provision of a charging service at a public charging station conditional on the prior conclusion of a written or electronic agreement by the owner of the electric vehicle or hybrid vehicle – a penalty of between PLN 1,000 and PLN 50,000;
3. does not ensure at a publicly accessible charging station the use of electricity for the sole purpose of: charging; charging or replacing the battery used to power an electric vehicle, hybrid vehicle, zero-emission bus or non-electric motor vehicle; ensuring the operation of the station – a penalty of between PLN 5,000 and PLN 50,000;
4. nie zapewnia przeprowadzenia odpowiednich badań, o których mowa w omawianej ustawie lub eksploatuje stacje ładowania, punkty ładowania zainstalowane na stacji ładowania lub stanowiące element infrastruktury ładowania drogowego transportu publicznego, stacje gazu ziemnego lub stacje wodoru pomimo wydania decyzji o wstrzymaniu eksploatacji – kara wynosi 20 000 zł w przypadku niezapewnienia przeprowadzenia badań, o których mowa w art. 16 ust. 1, lub eksploatacji stacji ładowania lub punktu ładowania zainstalowanego na stacji ładowania lub stanowiącego element infrastruktury ładowania drogowego transportu publicznego pomimo wydania decyzji, o której mowa w art. 16 ust. 4; PLN 50,000 – in the event of failure to ensure that the tests referred to in Article 27(1) or Article 29c(1) are carried out; PLN 100,000 – in the event of operation of a charging station or a charging point which is part of the infrastructure for charging road public transport or a natural gas station or a hydrogen station, despite the decision referred to in Art. 27(4), Article 29c(4) or Article 29f(7) or (8)(1) and (2). The penalty shall be paid for each charging station, also in the case of charging points installed on a charging station, a charging point forming part of a road public transport charging infrastructure, a natural gas station or a hydrogen station, respectively;
5. operates shore-side electricity or liquefied natural gas (LNG) bunkering points despite the issuance of a decision to stop operation – in the amount of PLN 20,000 to PLN 100,000;
6. being an operator of a gas distribution system, fails to develop a programme for the construction of natural gas stations as referred to in the Act in question – penalty of PLN 5,000 to 500,000;
7. builds a natural gas station contrary to the requirements stipulated by the Act in question – a fine of between PLN 10,000 and PLN 2,000,000;
8. being an entity managing a port belonging to the TEN-T core network, does not ensure that a bunkering point for liquefied natural gas is available at this port – penalty from PLN 50,000 to PLN 1,000,000;
9. being obliged to do so, fails to comply with the information obligations referred to in Article 41 of the said Act – a fine of PLN 500 to 2000;
10. does not comply with the obligation according to which the operator of a public charging station, the operator of a natural gas station or the operator of a hydrogen station providing a hydrogen refuelling service is obliged to report to the register using an electronic form – fine of PLN 2,000.

However, it is worth bearing in mind that, pursuant to Article 45(3) of the Act on Electromobility and Alternative Fuels, the amount of the fine may not exceed 15% of the fined entrepreneur’s revenue generated in the previous fiscal year.

Depending on the source of the administrative penalty in question, the authorities obliged to impose it are:

– President of the Energy Regulatory Authority;

– President of the Road Transport Authority;

– Director of Transport Technical Supervision;

– the territorially competent director of the maritime office;

– the provincial inspector of the Trade Inspection.

The President of the Energy Regulatory Office (URE) imposes penalties by way of a decision, which may be appealed to the District Court in Warsaw – the Court of Competition and Consumer Protection. The fine shall be paid within 14 days from the date on which the decision imposing the fine became final. The act of the provincial inspector of the Trade Inspection may be appealed to the President of the Office of Competition and Consumer Protection, whereas in cases where the decision is issued by the director of the maritime office – the appeal body is the minister in charge of maritime economy. If the act was issued by the President of the ERO, the appeal body is the minister in charge of energy, and if the Director of the TDT – the minister in charge of transport.

As noted by A. Piotrowska in the Commentary to the Act on Electromobility and Alternative Fuels edited by F. Grzegorczyk and A. Mitusia, ‘the commented article contains a catalogue of administrative torts and administrative fines constituting an ailment for their commission. Administrative monetary penalties are one of the types of administrative sanctions related to administrative liability. At the same time, they constitute an element of the administrative-legal model of regulating social relations. As pointed out by the TK in the judgment of 15.01.2007, an administrative penalty is not in fact a retribution for an act committed, but constitutes a coercive measure serving to ensure the realisation of the executive management tasks of administration. The legislator, by introducing the institution of administrative liability, influences the market behaviour of entrepreneurs, inducing them to pursue public goals desired by the legislator. These will be both national goals (especially those indicated in the Strategy for Responsible Development until 2020 (with an outlook until 2030) and EU goals by virtue of the fact that the Act is an implementation of Directive 2014/94. Moreover, the structure used here is an instrument for the implementation of environmental goals, among others resulting from the UN Sustainable Development Goals (especially goals 7, 9, 11-13). These objectives are to implement the obligations imposed by laws on entrepreneurs, which, due to the threat of an administrative sanction in the event of non-fulfilment, are of a public law nature. Some of them may result from norms with a dual public- and private-legal effect. Thus, entrepreneurs in certain factual situations related to their economic activity are administered subjects. Through the construction of administrative sanctions, in the form of administrative fines, the legislator interferes in the sphere of property rights of the individual and the rights of entrepreneurs arising from the freedom of economic activity. However, it does so in the public interest against those entrepreneurs who do not comply with the manner in which this right is implemented in the area of electromobility. Non-compliance of the behaviour of a given entrepreneur with the statutory pattern is the basis for the imposition, by way of an administrative decision, of a financial penalty by the authorised regulatory authority [4].

Nature of administrative liability

From the perspective of entrepreneurs operating on the market of alternative fuels and electromobility, it seems important that administrative liability has been objectivised in the Polish legal system [5]. This means that the imposition of the fines in question does not require proof of fault on the part of the infringer, but only the unlawfulness of their behaviour [6]. In view of the wide “ranges” of amounts envisaged by the legislator when setting the limits of the amount of penalties, it is worth bearing in mind the provisions of Article 189d of the Code of Administrative Procedure: “When imposing an administrative fine, the public administration body shall take into account:

1) the gravity and circumstances of the violation of the law, in particular the need to protect life or health, to protect property of significant size or to protect an important public interest or an exceptionally important interest of a party, and the duration of the violation;

2) the frequency of past non-compliance with an obligation or violation of a prohibition of the same type as the non-compliance with an obligation or violation of a prohibition as a consequence of which the penalty is to be imposed;

3) previous punishment for the same conduct for a criminal offence, a fiscal offence, a misdemeanour or a fiscal offence;

4) the degree of contribution of the party on whom the administrative financial penalty is imposed to the violation of the law;

5) the actions taken by the party voluntarily to avoid the consequences of the violation of the law;

6) the amount of the benefit gained by the party or the loss avoided;

7) in the case of a natural person, the personal conditions of the party on whom the administrative financial penalty is imposed”.

Pursuant to the judgement of the Supreme Administrative Court of 19 June 2020, ref. II OSK 141/20, an administrative fine is understood to be a pecuniary sanction specified by law, imposed by a public administration authority, by way of a decision, as a consequence of a breach of law consisting of a failure to comply with an obligation or a breach of a prohibition imposed on a natural person, a legal person or an organisational unit without legal personality. […] The majority of administrative fines are mandatory in nature, and possible mitigation is possible within the limits set by the law. However, this does not exclude the application of Article 189f § 1(1) of the Code of Administrative Procedure, provided of course that the prerequisites under this standard are met [7].

According to the case law, cases of possible waiver of an administrative penalty must have their basis in an individual and concrete act – an administrative decision. According to judgment of the Voivodship Administrative Court in Warsaw of 13 February 2020. with the reference VI SA/Wa 2339/19, the public administration body is obliged, firstly, to assess which objectives are fulfilled by the previous penalty and the current administrative monetary penalty; secondly, to determine which of the objectives of the previous penalty and the administrative monetary penalty coming into account are identical; thirdly, to assess whether and to what extent the previously imposed penalty fulfils the objectives for which the administrative monetary penalty would be imposed [8].

In its judgment of 8 August 2019. On the other hand, the Provincial Administrative Court in Łódź emphasised that the essence of waiving the imposition of an administrative fine is not to impose the fine, despite the fact that there has been an infringement of the law by the obliged party (addressee of the prohibition). At the same time, this does not mean basing administrative liability on the principle of fault [9]. In general terms, it can be assumed that the case law on fines has been highly developed over the last decades and, for the time being, it is possible to make extensive use of the body of work developed by the courts.

In addition, other provisions of the PAC on the imposition and mitigation of penalties apply to the financial burdens in question, including, inter alia, Article 189e: “Where a breach of the law has occurred as a result of force majeure, the party shall not be subject to a penalty”, Article 189f on waiving the imposition of a penalty, and Articles 189g and 189h on the statute of limitations for administrative fines.

As can be seen from the presented legal status, entrepreneurs operating in the electromobility industry should bear in mind that in the event of non-compliance with the provisions of the laws, they may incur severe financial liability, reaching up to several million PLN [10]. This makes it all the more important to highlight a number of advantages of ongoing cooperation with professional legal advisors.

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REFERENCES:

[1] https://prawo.ug.edu.pl/sites/default/files/_nodes/strona-pia/33461/files/38niesiolowski.pdf

[2] https://gjw.pl/regulacje-w-energetyce/wysokie-kary-pieniezne-wymierzane-przez-prezesa-ure-na-podstawie-ustawy-o-elektromobilnosci/ .

[3] Act of 14 June 1960 Code of Administrative Procedure (i.e. Journal of Laws 2023, item 775, as amended).

[4] A. Piotrowska [in:] Law on Electromobility and Alternative Fuels. Commentary, ed. F. Grzegorczyk, A. Mituś, Warsaw 2021, art. 45.

[5] https://www.kpazdyb.pl/administracyjne-kary-pieniezne/ .

[6] https://serwisy.gazetaprawna.pl/samorzad/artykuly/8439756,sankcje-administracyjne-zasady-o-jakich-powinny-pamietac-organy.html .

[7] Judgment of the Supreme Administrative Court of 19 June 2020, ref. II OSK 141/20.

[8] Judgment of the Voivodship Administrative Court in Warsaw of 13 February 2020, ref. VI SA/Wa 2339/19.

[9] Judgment of the Wojewódzki Sąd Administracyjny w Łodzi of 8 August 2019, ref. III SA/Łd 464/19.

[10] https://www.gazetaprawna.pl/firma-i-prawo/artykuly/8325923,punkt-ladowania-pojazdow-elektrycznych-przepisy-prawo.html .

SOURCES:

– legal acts:

1. Act of 11 January 2018 on electromobility and alternative fuels (Journal of Laws 2023.875 t.j. of 2023.05.09).
2. Act of 25 August 2006 on the system for monitoring and controlling fuel quality (i.e. Journal of Laws 2022, item 1315, as amended).

• Act of 7 July 1994 Construction Law (i.e. Journal of Laws 2023, item 682, as amended).

– other:

1. M. Frańczuk [in:] Law on Electromobility and Alternative Fuels. Commentary, ed. F. Grzegorczyk, A. Mituś, Warsaw 2021, art. 1.
2. A. Piotrowska [in:] Law on Electromobility and Alternative Fuels. Commentary, ed. F. Grzegorczyk, A. Mituś, Warsaw 2021, art. 45.
3. I. Gontarz, Literature [in:] Effectiveness in administrative law, ed. C. Martysz, Warsaw 2022.
4. Judgment of the Supreme Administrative Court of 19 June 2020, ref. II OSK 141/20.
5. Judgment of the Wojewódzki Sąd Administracyjny w Warszawie of 13 February 2020, ref. VI SA/Wa 2339/19.
6. https://prawo.ug.edu.pl/sites/default/files/_nodes/strona-pia/33461/files/38niesiolowski.pdf
7. https://gjw.pl/regulacje-w-energetyce/wysokie-kary-pieniezne-wymierzane-przez-prezesa-ure-na-podstawie-ustawy-o-elektromobilnosci/ .
8. https://www.kpazdyb.pl/administracyjne-kary-pieniezne/ .
9. https://serwisy.gazetaprawna.pl/samorzad/artykuly/8439756,sankcje-administracyjne-zasady-o-jakich-powinny-pamietac-organy.html
10. https://www.gazetaprawna.pl/firma-i-prawo/artykuly/8325923,punkt-ladowania-pojazdow-elektrycznych-przepisy-prawo.html