Renewable Energy sources as the public objective of Energy security i.e. de lege ferenda proposal for Polish legal regulations in the context of German and EU law

Abstract

This paper addressess the issue of the lack of clear recognition of investments in renewable sources as a public objective in Polish legal system and the consequences of this status quo for energy security and protection of property rights. The purpose of this paper is to formulate de lege ferenda proposal concerning the supplementation of public objectives catalogue specified in Article 6 of Real Estate Management Act with investments in renewable Energy sources as an instrument for implementing strategic national tasks. The analysis is dogmatic and legal in nature and encompasses the interpretation of constitutional standards of property protection, statutory regulations and the case law of the Constitutional Tribunal. Furthermore, the complemetary elements of comparative legal analysis were used, with the German model of property protection and statutory recognition of the energy transition as a public task serving as a normative reference point. This paper presents that the lack of systemic recognition of investments in renewable Energy sources as public objective results in regulatory inconsistency and encourages the use of extraordinary measures in the form of special laws which may paradoxically weaken the consitutional protection of property owners. Taken into consideration the obligations which stem from the law of European Union, in particular directives RED II and RED III, the authoress notices that the proposed legislative change promotes the Energy security while maintaining the principles of proportionality and fair compensation.