The Ministry of Climate and Environment has prepared a draft amendment to the regulations concerning the procedure for issuing environmental decisions. The new provisions regulate, inter alia, the transfer of decisions to other entities, the introduction of the principle of joint liability, and the automatic transfer of rights and obligations to new owners.
The amendment to the Act on Providing Information on the Environment and its Protection, Public Participation in Environmental Protection and Environmental Impact Assessments (the “Act”), as well as certain other acts (the “Amendment”), is currently at the stage of legislative work of the Council of Ministers. In April this year, a new version of the draft Amendment was published. The Amendment mainly concerns the procedure for issuing decisions on environmental conditions (the “Environmental Decision”). The changes concern, inter alia, the rules for transferring the Environmental Decision, the liability of entities assuming obligations under the decision, and the determination of parties to the proceedings for issuing the Environmental Decision.
The Amendment covers a wide range of changes – in this article we will focus on those that are of key importance from the perspective of investors. This publication is part of a series of articles in which we present the solutions proposed in the Amendment.
Joint liability for the implementation of the Environmental Decision
The Amendment provides for a change to the provision allowing the transfer of the Environmental Decision to another entity. First of all, it has been clarified that the transfer takes place in the form of an amendment to the decision, and the authority competent in this matter is the authority of first instance. Moreover, the Amendment explicitly indicates that it is possible for several entities to simultaneously assume the rights and obligations under the Environmental Decision. In such a case, they will be jointly liable for the implementation of the conditions resulting from the Environmental Decision.
Automatic transfer of the Environmental Decision to a new property owner
Under the current legal framework, the issue of transferring obligations resulting from the Environmental Decision, in connection with changes in ownership concerning real property or the entity conducting a given activity, has not been clearly regulated.
The Amendment provides that in the event of a change of the owner or perpetual usufructuary of the real property on which a project is being carried out or has been carried out on the basis of the Environmental Decision, the new owner or perpetual usufructuary assumes the rights and obligations resulting from the Environmental Decision. A preliminary analysis of the draft Amendment allows for the conclusion that such a transfer of rights and obligations will occur automatically by operation of law. At the same time, if the project is related to the conduct of business activity, the rights and obligations resulting from the Environmental Decision will transfer to the entity conducting that activity at the moment of acquiring legal title to the real property.
Additionally, the author of the bill intends to eliminate gaps in the scope of liability for the performance of obligations resulting from the Environmental Decision. In a situation where the rights and obligations have been transferred to multiple entities (e.g. to several new owners), they are to be jointly liable for the performance of obligations under the Environmental Decision.
Status of a party to the proceedings only for the owner or perpetual usufructuary
Currently, the provisions of the Act do not specify which property rights to real property located within the area of impact of a project allow a given entity to be recognized as a party to the proceedings for issuing the Environmental Decision. This leads to numerous interpretative problems and a lack of uniformity in the application of the provisions. The Amendment explicitly indicates that such property rights may only be the right of ownership of real property, perpetual usufruct, or a cooperative ownership right to premises.