Implementation of law in practice

1. Implementation of law in practice Legaladviser Jędrzej Klatka Ministry of Environment expert PolishChamber of Ecologyexpert www.prawosmieciowe.pl www.polishlawyer.eu

2. Keylegalissues: • Tenders for in-house municipalcompanies • Choice of regional installations • Price differentiation between mixed and sorted waste • Limitation of the amount of communal waste collected • Recycling requirements • Need for incinerationplants

3. Tenders for in-house municipalcompanies • Definition of public procurement: it is a contract • Definition of a contract in civil law: relation between equal parties • Relationbetweenanycommune and a President of a Management Board of a communalcompanyis not equalbecausePresidentdoeswhatMayortellshim to do • As a resultcontractdoes not exist

4. Tenders for in-house municipalcompanies • There is no public procurement without contract • As a rule any public task can be entrusted to in-house municipalcompany 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

5. Tenders for in-house municipalcompanies • Allexceptionsshould be interpretednarrowly • Onlywaste 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 anyother public tasks

6. A municipalcompanyis in-housewhen: • A municipalityis a sole shareholder • A municipalityhas a directcontroloveran in-housecompany as overitsowndepartments • An in-housecompanyhasbeenestablished to peform public tasks (acording to itsarticles of association) • Performance of such public taskshasbeenentrusted to a companyby a resolution of a municipal councilwithoutconcludinganycontract • An in-housecompanyrefrains from undertakinganyeconomicactivityoutsileitsmothermunicipality, in particulardoes not participate in anytenders

7. Choice of regional installations Replacementinstallationscanonlyaccept for storage mixed municipal waste, green waste and residues from municipal waste sorting in the case of: • there is no regional installationin the region, • when regional installationhas broken down or • if it can not accept waste for other reasons [art. 14 sec. 8 Act on Waste]

8. Choice of regional installations • Act on Public Procurementsrequires to choose the bestoffer • When the priceis the onlycriterionthen the cheapestofferis the bestoffer • Replacementinstallationswill be able to offercheaperpricethanregionalinstallations

9. Choice of regional installations • MunicipalitywillbreachAct on Waste whenanyreplacementinstalationischosenonlybecauseit was cheaper, althoughregionalinstallationhasbeenready to acceptmunicipal waste for treatment • The onlylawfulsolution: onlyentitieswhohave a regionalinstallation in theirdisposalcanparticipate in a tender • Owner of a regionalinstallationcanpromisethatitwill be given to the disposal of third parties

10. Price differentiation between mixed and segregatedwaste • Collection of segregated waste must be cheaperthancollection of mixed waste [art. 6k sec. 3] • Waste should be collected in a selective manner[art. 10 Act on Waste]

11. Price differentiation between mixed and segregatedwaste →Therefore: • Householdermaynotdeclarewhether he willsegregateor not – becauseeachhouseholdermustsegragate • Eachhouseholder and owner of a real estatemustpay the sum of tworates: • higher for mixed waste treatment and • lower for segragated waste treatment.

12. Limitation of the amount of communal waste collected • Limitation of the amount of communal waste collectedisallowedin a resolution on detailedmannerand 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] • Limitationisanoption, whichis not necassary

13. Limitation of the amount of communal waste collected • Advantages of limitation: • Householderwill be forcedeither to segregateor to pay for additionalcontainer of mixed waste • Disadvantages of limitation: • Householderwillratherillegalydispose of surplus of waste than to pay for it • Householders from municipalitieswholimitatewillbring waste to municipalitieswho do not limitate

14. Recyclingrequirements 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]

15. 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]

16. 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]

17. Recycling requirements Penalty iscalculated 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.

18. Need for incinerationplants • Total municipal waste generated in 2010 in Poland: 12 038 400 tons • Municipal waste generated in 2010 treatedthermally in incinerationplants in Poland: 102500 tons • Municipal waste generated in 2010 landfilled in Poland: 7 368 700 tons • Total accumulatedamount of landfilledwaste in Poland: 1 724 484 200 tons.

19. Need for incinerationplants 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]

20. How to avoidproblems with tendersfor construction, maintenance and operation of regional installations • Askprofessionals to prepare tender documentationbased on FIDIC contractframework • Usecompetitivedialogueprocedurewheneverpossible • Balanceinterests of bothparties in contractdrafts • Requirereferences from bidders

21. How to avoidproblems with tenders for construction, maintenance and operation of regional installations • Provide cap for penalties (liquidateddamages) • Provide for downpayment – thiswillkeep the pricelow • Provideenoughtime for performance • Guaranteeenough waste input

22. Consequences of a bad tender documentation • tooharshrequirementsdiscouragepotentialbidders • too many questionsfrombidders (> 300 questionsinCracow tender), • changes of thedate for submission of offers • repetitiverecalls to National Board of Appeal • winningbidderrefuses to signthecontract • bancrupcy of winningbidderunable to perform

23. Thankyou for yourattention Legaladviser Jędrzej Klatka J.Klatka@radca.prawny.com.pl J.Klatka@polishlawyer.eu +48 (32) 201 44 56 www.prawosmieciowe.pl