Presentation on theme: "Implementation of law in practice Legal adviser Jędrzej Klatka Ministry of Environment expert Polish Chamber of Ecology expert www.prawosmieciowe.pl www.polishlawyer.eu."— Presentation transcript:
Implementation of law in practice Legal adviser Jędrzej Klatka Ministry of Environment expert Polish Chamber of Ecology expert www.prawosmieciowe.pl www.polishlawyer.eu
Key legal issues: 1.Tenders for in-house municipal companies 2.Choice of regional installations 3.Price differentiation between mixed and sorted waste 4.Limitation of the amount of communal waste collected 5.Recycling requirements 6.Need for incineration plants
Tenders for in-house municipal companies Definition of public procurement: it is a contract Definition of a contract in civil law: relation between equal parties Relation between any commune and a President of a Management Board of a communal company is not equal because President does what Mayor tells him to do As a result contract does not exist
Tenders for in-house municipal companies There is no public procurement without contract As a rule any public task can be entrusted to in-house municipal company by a resolution of a municipal council – as long as legal provisions do not expressly prohibit it Article 6d which requires tenders for waste collection and for waste collection & management is an exception
Tenders for in-house municipal companies All exceptions should be interpreted narrowly Only waste collection and for waste collection together with waste management requires tender Tender is not required for solo waste management (without waste collection) Tender is not required for performance of any other public tasks
A municipal company is in-house when: A municipality is a sole shareholder A municipality has a direct control over an in-house company as over its own departments An in-house company has been established to peform public tasks (acording to its articles of association) Performance of such public tasks has been entrusted to a company by a resolution of a municipal council without concluding any contract An in-house company refrains from undertaking any economic activity outsile its mother municipality, in particular does not participate in any tenders
Choice of regional installations Replacement installations can only accept for storage mixed municipal waste, green waste and residues from municipal waste sorting in the case of: there is no regional installation in the region, when regional installation has broken down or if it can not accept waste for other reasons [art. 14 sec. 8 Act on Waste]
Choice of regional installations Act on Public Procurements requires to choose the best offer When the price is the only criterion then the cheapest offer is the best offer Replacement installations will be able to offer cheaper price than regional installations
Choice of regional installations Municipality will breach Act on Waste when any replacement instalation is chosen only because it was cheaper, although regional installation has been ready to accept municipal waste for treatment The only lawful solution: only entities who have a regional installation in their disposal can participate in a tender Owner of a regional installation can promise that it will be given to the disposal of third parties
Price differentiation between mixed and segregated waste Collection of segregated waste must be cheaper than collection of mixed waste [art. 6k sec. 3] Waste should be collected in a selective manner [art. 10 Act on Waste]
Price differentiation between mixed and segregated waste →Therefore: Householder may not declare whether he will segregate or not – because each householder must segragate Each householder and owner of a real estate must pay the sum of two rates: higher for mixed waste treatment and lower for segragated waste treatment.
Limitation of the amount of communal waste collected Limitation of the amount of communal waste collected is allowed in a resolution on detailed manner and scope of rendering services of collection of municipal waste from property owners and management of this waste, in exchange for a fee paid by the property owner for municipal waste management [art. 6r sec. 3] Limitation is an option, which is not necassary
Limitation of the amount of communal waste collected Advantages of limitation: Householder will be forced either to segregate or to pay for additional container of mixed waste Disadvantages of limitation: Householder will rather illegaly dispose of surplus of waste than to pay for it Householders from municipalities who limitate will bring waste to municipalities who do not limitate
Recycling requirements Municipalities are required to reach by 31.12.2020: recycling and preparation for re-use and recovery of the following waste fractions: paper, metal, plastic and glass in the amount of at least 50% by weight, recycling, preparation for re-use and recovery of other methods of non-hazardous construction and demolition waste in the amount of at least 70% by weight. [art. 3b. Sec. 1]
Recycling requirements Municipalities are required to reduce the weight of biodegradable municipal waste transferred to landfill: 1) until 16 July 2013 - to no more than 50% by weight of the total weight of biodegradable municipal waste transferred to landfill, 2) until 16 July 2020 - to no more than 35% by weight of the total weight of biodegradable municipal waste transferred to landfill - compared to the weight of the waste produced in 1995 [art. 3c sec. 1]
Recycling requirements The municipality, which does not attain the required level of recycling - is subject to a financial penalty calculated separately for desired level: 1) recycling, preparation for re-use and recovery of other methods; 2) reduction of biodegradable municipal waste transferred to landfill. [art. 9z sec. 2]
Recycling requirements Penalty is calculated by multiplying the fee rate for mixed municipal waste, as defined in regulations issued under Article. 290 of the Environmental Protection Law, and the missing mass of municipal waste, expressed as Mg, required to achieve an adequate level of recycling, preparation for re-use and recycling or other methods of weight reduction of biodegradable municipal waste transferred to landfill.
Need for incineration plants Total municipal waste generated in 2010 in Poland: 12 038 400 tons Municipal waste generated in 2010 treated thermally in incineration plants in Poland: 102 500 tons Municipal waste generated in 2010 landfilled in Poland: 7 368 700 tons Total accumulated amount of landfilledwaste in Poland: 1 724 484 200 tons.
Need for incineration plants Municipalities provide for construction, maintenance and operation of their own or shared with other municipalities regional processing plants for municipal waste [art. 3 sec. 2 point 2a]
How to avoid problems with tenders for construction, maintenance and operation of regional installations 1.Ask professionals to prepare tender documentation based on FIDIC contract framework 2.Use competitive dialogue procedure whenever possible 3.Balance interests of both parties in contract drafts 4.Require references from bidders
How to avoid problems with tenders for construction, maintenance and operation of regional installations 5.Provide cap for penalties (liquidated damages) 6.Provide for downpayment – this will keep the price low 7.Provide enough time for performance 8.Guarantee enough waste input
Consequences of a bad tender documentation too harsh requirements discourage potential bidders too many questions from bidders (> 300 questions in Cracow tender), changes of the date for submission of offers repetitive recalls to National Board of Appeal winning bidder refuses to sign the contract bancrupcy of winning bidder unable to perform
Thank you for your attention Legal adviser Jędrzej Klatka J.Klatka@radca.prawny.com.pl J.Klatka@polishlawyer.eu +48 (32) 201 44 56 www.prawosmieciowe.pl