In previous articles their authors mentioned various issues that concern projects relating to Offshore Wind Farms in the Polish marine areas.
In this article, considering the puzzling optimism prevailing during the recent execution of the sector deal for Polish OWFs, it will be revealed how defenceless Polish Offshore Wind Farms remain, deprived of both necessary and urgent changes to the Polish legal system.
Maritime Law Enforcement Agencies in the Republic of Poland
Polish authorities of maritime administration, which is not a secret, are highly fragmented, while some of their competences overlap. There is no single authority in Poland that would act as a maritime law enforcement agency, and institutions involved in the protection of Polish sea areas are not prepared for this task in terms of their competences and equipment. This situation hangs a question mark over the security of Polish Offshore Wind Farms, which will become a part of critical infrastructure and be owned by the Polish power system.
The first institution that comes to mind in the context of law enforcement agencies is obviously the Police. Let us examine the maritime component of this service.
Pursuant to art. 1(2)(2) of the Act of 6 April 1990 on Police, basic tasks of the Police include the protection of security and public order, including ensuring peace in public places and in means of public transport, in road traffic and in water areas designated for common use.
In order to explain the term ‘water areas designated for common use’ one needs to refer to the Act of 20 July 2017 Water Law, and more specifically to art. 32(2) of this legal act, which states: everyone has the right to generally use public inland water areas, marine internal water areas, and waters of territorial sea, unless regulations of the Act provide for otherwise. From this regulation alone it is clear that the territorial competences of the Polish Police do not cover the water area in which the first OWFs will be located, that is the contiguous zone.
There are 3 provincial Police Departments in coastal areas (in Szczecin, Gdańsk and Olsztyn) and 19 poviat (town) Police Departments (nine in Zachodniopomorskie Province, eight in Pomorskie Province, and two in Warmińsko-Mazurskie Province). Duties of the maritime Police in sea waters and in coastal areas are fulfilled, among other, by the specialist Water Police Station that belongs to the structures of the Provincial Police Department in Gdańsk, four seasonal supernumerary organizational units, including: Water Cells (Poviat Police Department in Puck and City Police Department in Gdynia), and Supernumerary Water Teams (Poviat Police Department in Nowy Dwór Gdański and Poviat Police Department in Kołobrzeg). Moreover, in five poviat (town) Police Departments in: Świnoujście, Police, Goleniów, Kamień Pomorski and Elbląg, duties of the maritime Police are fulfilled by officers who are temporarily designated from other organizational units and departments of the Police.
This structure shows also the extent to which the maritime component of the Police is not ready to ensure the safe operations of the critical infrastructure of our state, namely OWFs in the Polish marine areas. The equipment of this ‘maritime’ law enforcement agency is also interesting from this perspective, consisting of 14 boats, including three boats of R-1 category (total length of hull above 6.5 m), ten R-2 category boats (hull length from 5.4 m to 6.49 m) and one R-3 category boat (hull length from 3.9 m to 5.39 m). All such vessels are boats with hulls made of laminate, surrounded with a pneumatic tube. These boats:
1. are, first of all, completely useless when water areas are iced, and
2. secondly, which probably results from the main procurement criterion applied by budget entities, in this configuration version their efficiency leaves much to be desired, which means that in case of worse hydro-meteorological conditions these vessels are useless.
Unfortunately, the Report by NIK (Supreme Audit Office) has presented the situation of the maritime component of the Police in a similar tone. The report concerned organizational units of the Police designated to protect public order in marine areas. The report states, among other, that in the controlled police departments the structures of maritime Police were established that were supernumerary and were not subject to an applicable standard. Moreover, the provision with boats differed from needs. Two Police departments were not equipped with R-1 category boats (the total length of hull above 6.5 m), and in one Police department the only boat available was inoperable for most period of the Maritime Police work. This presents a very sad picture of the maritime component of the Polish Police.
In addition to the obvious shortages of equipment in the form of watercraft, the organizational units of the Police responsible for public security in marine waters suffer from the lack of adequate infrastructure and specialist equipment used to supervise marine areas that are subject to the jurisdiction of the Police or the sufficient number of persons with an adequate level of training and experience in conducting operations on marine waters.
Another law enforcement agency that fulfils duties of protecting security and public order in the Polish marine areas are the Border Guards. With respect to this service, both the status of watercraft and the system of monitoring Polish marine areas are much more favourable than in the case of the maritime component of the Police forces.
However, a problem arises during the analysis of legal acts that establish both the scope of duties and competences of the Maritime Department of Border Guards. According to art. 1(2)(1) of the Act of 12 October 1990 on Border Guards, tasks of the Border Guards include the protection of the state border, both onshore and offshore.
In addition, in section 10 of that regulation the legislator listed among tasks of the Border Guards the supervision over the exploitation of the Polish marine areas and over following by ships regulations in effect in such areas. The powers of this service have been determined in two legal acts.
The first legal act is obviously the above-mentioned Act on Border Guards. According to art. 14(1) of the Act, if required for purposes of state defence or integrity of the state border, commanders of watercraft of the Border Guards in internal marine areas and in the territorial sea have the right to:
1. summon a ship to reduce its sailing speed, stop it for inspection and to follow a determined course of sailing;
2. stop a ship, check documents of the ship and cargo, identify crew of the ship and passengers on board, control the cargo and search premises of the ship as well as detain a person suspected of committing a crime; and
3. force a ship to call at an indicated port, if a master does not follow instructions issued.
On the other hand, according to section 2, commanders of watercraft of the Border Guards have the right to take actions mentioned in section 1 also if a ship in internal marine waters or in the territorial sea:
1. embarks or disembarks persons against applicable regulations;
2. loads or discharges cargo outside of designated sites;
3. leaves a port without undergoing a border control;
4. communicates with the coast for criminal purposes;
5. fishes or exploits waters and the seabed otherwise contrary to applicable regulations;
6. enters the area of a zone that is closed or hazardous for sailing or fishing;
7. anchors outside a designated site;
8. violates regulations that concern safety of navigation; or
9. violates sanitary or environmental protection regulations.
Section 3 of the above-mentioned regulation extends the authorization of a commander of watercraft of Border Guards, albeit only to a certain scope, also to the exclusive economic zone. According to this legal standard, the authorizations mentioned in section 1 are held also when fulfilling tasks within the protection of the rights of the Republic of Poland in its exclusive economic zone, whose status and scope are determined in other regulations and international conventions.
The intentions of the legislator remain a secret when he used the term ‘commander of watercraft of the Border Guards’, because this unfortunate narrowing down of powers only to this one specific crew member of Border Guards vessels makes the daily service of officers in this unit quite problematic. According to the analysis of the above-mentioned regulations, the scope of competences of Border Guards does not overlap with the marine area in which investments in the Polish Offshore Wind Farms are planned.
A simple legislative measure, according to the authors, would be to add the following provision in art. 14(3) of the Act on Border Guards: ‘… the scope of protecting rights of the Republic of Poland and in the case set forth in section 2(6) in its exclusive economic zone as well as in the contiguous zone…’ Why should this provision be narrowed down to this case? The answer is simple: according to art. 24 of the Act on marine areas of the Republic of Poland and maritime administration, a director of the maritime office concerned may establish a security zone. In this area, the director of the maritime office determines conditions of traffic in a security zone, and may in particular introduce limitations in navigation, fishing, practising water sports, diving, or underwater work. The introduction of the proposed provision in art. 14(3) of the Act on Border Guards proposed by the authors would eliminate potential criticism or doubts about exceeding their competences by officers of the Border Guards.
Another legal act that governs the scope of powers of officers of the Border Guards that belong to crews of watercraft in this unit is the Act of 21 March 1991 on marine areas of the Republic of Poland and the maritime administration. According to art. 50(5), in case of the absence of a maritime inspection controller on board of a vessel of the Border Guards, the Border Guards may exercise the following rights on their own:
a) to control if ships are entitled to carry out their operations and if they hold required permits,
b) to control if navigation or another activity is carried out according to regulations of Polish law and international conventions,
c) to detect contaminations of the marine environment caused by offshore operations and their perpetrators,
d) to control if ships fulfil requirements within the security of navigation, and
e) to control if a carrier, a terminal operator, or a seller of tickets, in the meaning of Regulation No 1177/2010, fulfil obligations set forth in Regulation No 1177/2010 on behalf of a local maritime administration authority.
This regulation does not include a provision either that would give officers the right to react in case of hazards to the operation of OWFs in the Polish marine areas.
Lack of Suitable Maritime Services and Negative Consequences for an Average Recipient of Energy from OWFs
In the present legal status there are two authorities, i.e. the Police and the Border Guards, which are responsible for protecting order and public security.
Unfortunately, with respect to the Police there is no effective legal authorization to react in situations that affect the direct security of Offshore Wind Farms in the Polish marine areas. What is more, neither does the Police have adequate equipment necessary to detect potential hazards and to reach an area of hazard effectively and quickly.
On the other hand, the Border Guards have much better equipment, both for detecting and reacting to potential hazards in the area where OWFs will be located in the Polish marine areas; however, they do not have the authorization (competences) in the present legal status to carry out such activities.
Another problem in case of Border Guards is the selection of crews of their watercraft. One of the criteria applied by the management of this unit is to require from a future crew member to hold an integrated security course (STCW), which encompasses four basic courses: individual rescue techniques (ITR), fire fighting, basic medical first aid rules, own security and common responsibility.
Next, a candidate who has received a certificate of completing the integrated security course (STCW) is delegated for a 6-month training at one of the training centres of the Border Guards. However, the curriculum of the training does not include any future services in the Polish marine areas or even any basic nautical knowledge.
The lack of maritime law enforcement agencies provided with adequate legal instruments, equipment and personnel, will affect directly the assessment of investment risk of Offshore Wind Farms in the Polish marine areas and their subsequent operation.
A high level of risk of such projects will affect directly a final price of kWh, which will have to be paid by an average consumer of power from OWFs. Obviously, there are some opinions that a duty of the private sector will be to ensure the security of OWFs in the Polish marine areas. This position seems to be the consequence of the misunderstanding of two completely separate concepts, namely the on-going security of a facility and a reaction to an actual hazard related directly to the power security of our country.
As regards the current security of OWFs, some solutions will certainly be developed. However, as regards the second case, considering the lack of the adequate Polish law enforcement agencies and relevant regulations, a very bizarre situation may occur, where the power security of Poland will depend on the reaction or no reaction of a private security contractor. And due to the lack of any statutory protection of local content in OWFs, such a contractor may be a foreign firm (sic!).
Summing up, this article presents fundamental legal gaps in ensuring the sufficient level of security of Offshore Wind Farms in marine areas that are subject to jurisdiction of the Republic of Poland. Is there a solution to this problem?
According to the authors, the system should be remedied as follows:
1. First of all, the Border Guards should be given adequate competences, as soon as possible, because time counts against us.
2. A next step should be to create an operational coordination centre for individual organizational units that belong to the Navy of the Republic of Poland.
3. A last stage should be to establish a uniform service that would focus its operations on tasks that are fulfilled by the presently fragmented maritime administration.
The structure and tasks of the future Polish Coastal Guards could be similar to the Finish Rajavartiolaitos, the Swedish Kustbevakningen or the Netherlands Kustwacht. It seems that the Dutch model would be fastest and most probable for the effective implementation in Poland.
Last but not least, it is noteworthy that contrary to numerous mistaken opinions, the Polish Navy has no statutory competences or suitable equipment required to ensure the security of Polish OWFs, unless a military conflict occurs.
Mateusz Romowicz – Legal Adviser
mgr Przemysław Niewiński – Lawyer, consultant of the Law Firm
Legal Counsel's Office
Legal Consulting-Mateusz Romowicz
In previous articles their authors mentioned various issues that concern projects relating to Offshore Wind Farms in the Polish marine areas.