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... for a law counters the principle of rule of law.

It is difficult to accept a situation in which the State Treasury draws financial benefits at the expense of an entrepreneur due to legislative inaction on the part of a government minister. However, this is the case as evidenced by the struggle of company X to relieve it of the duty to incur an increased (sanction) fee for disposing of waste at its own so-called plant facility.

The provincial governor decided to increase fees since the company did not obtain instructions on utilisation of the facility. Meanwhile, it could not obtain a proper instruction due to the lack of regulations enabling proper specification of the type of its facility. The reason? For three years a government minister failed to issue an executive regulation for the Waste Act of 27 April 2001 (art. 4 sec. 1 point 2.). It was to set the terms under which it could be established that the waste detailed on the hazardous waste list is not hazardous. Such a regulation was only signed on 14 May 2004. On its basis, waste generated by the company was considered to be “other than hazardous”. The company knew that this would be the case, since both the law as well as the regulation were to introduce European regulations in this matter.

Polish regulations during the period 2002–2004 did not provide for the ability to recognise the waste stipulated on the hazardous list as “other than hazardous” (there were no statutory reference methodologies). Had the company filed for instructions in 2002–2004, it would have obtained that provided by regulations governing hazardous waste. Its implementation would have entailed the need to bear significant costs that were, moreover, irrelevant from the standpoint of environmental protection. Since it did not file for such a decision, it should therefore pay a sanction fee.

“In this situation, the company was deprived of the right to file a motion consistent with the factual status. For this reason, it is not liable for the absence in 2002–2004 of a proper decision confirming waste utilisation instructions,” underscores Mirella Lechna, partner with Wardyński & Partners.

The Provincial Administrative Court recognised these circumstances. However, it found that the company should file for instructions and incur costs of rebuilding the facility. It could then subsequently pursue its claims at a common court in a civil suit directed against the State Treasury.

“I do not concur with such an assessment,” states Mirella Lechna. “The administrative law system cannot accept norms countering principles of justice that can only be met through a common court judgment.”

In a complaint filed in the name of the company at the Supreme Administrative Court, mec. Lechna emphasised, among others, that increased fees were introduced for the purpose of disciplining entrepreneurs with regard to environmental protection. In this case, however, all administrative instances reviewing it were fully aware that company activities in no way endanger the environment. Yet, they undertook decisions assuming this to be the case. This formalistic approach toward the company's problems is even reflected in the date of issue of decisions specifying the level of increased fee. They were issued in 2007, thus, already after entry into force of a regulation dated 14 May 2004 on the basis of which they themselves recognised that company waste is not hazardous.

The NSA has not yet set a date for proceedings.