Amendment to the RES Act – what is worth knowing in 2025?

The explanatory memorandum to the draft Act of 17 August 2023 amending the Act on Renewable Energy Sources and certain other Acts states that the ratio legis of the amendment is to fulfil the obligations arising from the RED II Directive regarding the promotion and development of the renewable energy sector  — both in the electricity and heat markets — increasing the share of renewable energy in the country’s overall energy mix, reducing greenhouse gas emissions, and enhancing the energy security of the Republic of Poland.

Importantly, the REDII Directive has already been partially transposed into Polish law by virtue of the Act of 14 August 2020 amending the Act on Biocomponents and Liquid Biofuels and certain other acts (Journal of Laws of 2020, item 1565). The aforementioned amendment to the RES Act introduces a further package of new measures, given the very broad scope of the REDII Directive.

What changes and new measures does the amendment to the RES Act provide for?

Among the most important measures introduced by the Act of 17 August 2023 amending the Act on Renewable Energy Sources and certain other acts (Journal of Laws of 2023, item 1762), the following changes should be mentioned in particular: hybrid RES installations, energy clusters, modernisation and operational support for RES installations, the development of offshore wind energy, increasing the connection capacity for new RES generation sources (so-called ‘cable pooling’), as well as the energy, heating and cooling markets. The amending Act also introduces a definition of biomethane and a register of biogas producers, and contains new regulations for energy clusters.

The biomethane market – a new development in the Polish legal system

In connection with the requirement set out in the RED II Directive to launch a biomethane market, which is to be fed into gas networks as well as used in transport, the amendment to the RES Act introduces a definition of biomethane into the RES Act, and expands the provisions setting out the legal framework for conducting business activities relating to the production of biomethane or business activities relating to the production of biomethane from biogas. Importantly, under the amended provisions, this activity is a regulated activity and requires entry in the register of biogas producers, maintained by the President of the Energy Regulatory Office.

Changes to the operation of energy clusters

Another significant change introduced by the amendment to the RES Act is the streamlining of the operation of energy clusters, driven by the aim to improve local energy security through the wider use of renewable energy sources and the development of local entrepreneurship, including local communities. Consequently, the amendment to the RES Act modifies the definition of energy clusters by strengthening the role of local government bodies, as the amended definition introduces a requirement that an entity forming part of an energy cluster must include at least one local government body or a capital company established pursuant to Article 9(1) of the Act of 20 December 1996 on Municipal Services (Journal of Laws of 2021, item 679) by a local government body, or a capital company in which the local government entity’s share in the company’s share capital is greater than 50% or exceeds 50% of the total number of shares. The amendment also introduces changes regarding the scope of energy clusters’ operations, through the introduction of a register of energy clusters, and rules governing cooperation between energy clusters and distribution system operators and energy suppliers. The amendment to the RES Act also introduces a system of tangible support for energy clusters in the form of relief from distribution charges, charges related to RES support schemes, high-efficiency cogeneration and energy efficiency. To qualify for these reliefs, a cluster must be entered in the register of clusters maintained by the President of the Energy Regulatory Office and must meet the minimum requirements for energy clusters regarding the consumption of energy from RES, the installed capacity of generation sources and energy storage facilities, and the coverage of electricity demand through own production.

Improving the functioning of energy cooperatives

The amended provisions of the RES Act introduce regulations aimed at improving the functioning of energy cooperatives. The amendment expands the scope of energy cooperatives’ activities, changes the definition of energy cooperatives, the reliefs available to energy cooperatives, and the obligations of distribution system operators and energy suppliers towards energy cooperatives. The amendment also introduces preferential treatment regarding the connection of energy cooperatives by distribution system operators.

Extension of guarantees of origin

The transposition of the RED II Directive into Polish law also involves the Polish legislator amending regulations concerning guarantees of origin by introducing guarantees of origin for heat or cooling generated from renewable energy sources in renewable energy installations.

Support scheme for modernised installations and operational support for RES installations

The amendment to the RES Act also implements into Polish law regulations concerning the support scheme for modernised RES installations. This stems from the fact that, under the previous legal framework, the legislation contained general provisions on support; however, due to the lack of implementing regulations, it was not possible for them to function effectively. Consequently, the RES Act has expanded the definition of modernisation, which now covers:

• restoration to the original condition or a change in the operational or technical parameters of a renewable energy installation, or
• the conversion of a renewable energy installation into another type of renewable energy installation, excluding conversion into a multi-fuel combustion installation, or
• the conversion of a generation unit within the meaning of Article 3(43) of the Energy Law, which does not constitute a renewable energy installation, into a renewable energy installation, excluding conversion into a multi-fuel combustion installation.

The legislator has provided that the support scheme for modernised installations is intended for energy producers from installations in a technical condition permitting their continued operation following modernisation, where the investment expenditure amounts to at least 25% of the eligible costs of constructing a new reference installation. Furthermore, in accordance with the amendment, installations with an installed electrical capacity of less than 500 kW, like new installations commencing the generation and sale of electricity, have been included in the feed-in tariff support scheme (FIT scheme), and installations with an installed electrical capacity of not less than 500 kW and not more than 1 MW may join the market price subsidy scheme (FIP scheme). The amended regulations also allow modernised RES installations to participate in auctions for the sale of electricity generated from RES sources. A key condition for obtaining support is, in particular, obtaining a certificate from the President of the Energy Regulatory Office under the FIT/FIP scheme or a certificate of eligibility to participate in the auction.

In turn, the amendment to the RES Act stipulates that the operational support scheme is intended for energy producers from installations that are in a technical condition allowing for their continued operation for a further 10 years. The new regulation assumes that energy producers from these installations incur operating costs exceeding the revenue from the sale of energy at market prices. This is a support scheme intended for hydroelectric power stations (up to 5 MW), biomass, biogas and waste-to-energy plants.

For installations with an installed electrical capacity exceeding 1 MW, the legislator has provided for a competitive support scheme based on auctions. For installations with an installed electrical capacity of no more than 1 MW, a feed-in tariff (FIP) scheme applies.

The provisions concerning the operational support scheme for RES installations, in accordance with the amending Act, come into force on 1 July 2025.

Cable pooling

In the final stage of work on the amendment to the RES Act, provisions were introduced regarding the sharing of connection infrastructure, known as ‘cable pooling’. This is a mechanism allowing RES installations to be connected to the distribution system via a single connection point. The amended provisions provide for the sharing of connection infrastructure by beneficiaries of the auction-based support scheme, the FIT scheme and the FIP scheme, provided that the electricity generator at the installation planned for connection does not use, nor will use, any mechanism supporting the generation of energy from renewable sources.

Other changes introduced by the amendment to the RES Act

In addition to the above measures, the amendment to the RES Act also provides for changes, in particular regarding:

• simplifying administrative procedures – the previous regulations stipulated that construction works involving the installation of photovoltaic systems, heat pumps and free-standing solar collectors with an installed electrical capacity exceeding 50 kW required a building permit. The amendment has raised the threshold for installed electrical capacity to 150 kW,
• PPAs (Power Purchase Agreements – the amendment clarifies issues relating to the sale of electricity from renewable energy sources directly from the producer,
• the use of renewable energy installations in multi-unit buildings, through the introduction of the tenant prosumer concept. This solution introduces a new billing method for renewable energy prosumers, involving the option to change the form of remuneration for electricity. A renewable energy prosumer who is an individual prosumer generating energy for the common areas of a multi-unit building may change the form of remuneration from a reduction in their electricity bill via a prosumer account to a payment of the value of the energy into a bank account of their choice. Funds accumulated in the prosumer deposit may be used by the prosumer to purchase electricity or to reduce charges.

The transposition of the REDII Directive into Polish law introduces many new solutions and institutions aimed at creating appropriate conditions to tangibly influence the development of renewable energy installations and support renewable energy producers. Market practice will show whether the new regulations and institutions provided for by the amendment will fulfil their functions, the objectives of which are described in the REDII Directive and in the explanatory memorandum to the Act amending the RES Act, and whether their full implementation will require more time than the legislator had anticipated. This paper provides an overview of the most important institutions and new solutions, from the perspective of the amending Act, provided for in the REDII Directive, which have been implemented into the Polish legal system.

Author

Adrian Łukasik

Radca prawny, Senior Associate

He gained his professional experience in one of Lublin's renowned law firms, dealing with civil and business law in its broadest sense. At the law firm Hewelt Wojnowski i Wspólnicy spółka komandytowa, he deals on a daily basis with current counseling in the field of business and the development of corporate documentation of companies, such as. Company agreements, bylaws of company bodies, agreements regulating relations between shareholders, resolutions of company bodies, M&A transactions. In addition to…

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