Note from the meeting with a representative of the Ministry of Climate and Environment on the application of the provisions of the Act on the maximum price of electricity.
On January 31, 2023, at the request of the Polish Chamber of Real Estate ("PINK") and the Polish Council of Shopping Centers ("PRCH") to the Ministry of Climate and Environment, in connection with the letter issued by both organizations on January 13, 2023, regarding the application of the regulations on the maximum price of electricity, an online meeting was held with a representative of the Ministry of Climate and Environment from the Department of Electricity and Gas.
During the meeting, a representative of the Ministry of Climate addressed questions posed by members of both organizations in the aforementioned letter and answered questions from representatives of PINK and PRCH members present at the meeting. He initially emphasized that the ministry lacks the authority to provide binding interpretations of regulations, and the information he provided constitutes only a subjective assessment of the situation regarding the concerns raised by both organizations. In response to the questions raised in the letter, the official pointed out that a large business owner/manager of a commercial facility may re-invoice energy costs to a tenant of a commercial premises that is an SME at the maximum price due to the fact that, unlike the tenant, they are a party to the sales agreement. The condition for applying the freeze is to submit a declaration by January 31, 2023 (in which case, the maximum price will be applicable in settlements from December 1, 2022). If the declaration is submitted after this deadline, the freeze will apply from 1 March 2023. The eligible customer, within the meaning of the regulations, is the owner/manager, but only for energy consumed by the tenant who is an SME. Previous declarations – submitted by eligible customers who are SMEs – remain valid if the conditions for using the energy for the predominant business activity still exist.
In response to the question of whether an owner/manager of a commercial facility who is an SME can re-invoice energy costs to a tenant who is a large enterprise using the maximum price, assuming that in this case the owner/manager is an eligible customer as an SME and that subletting space is their primary activity, then applying the maximum price is possible. Regarding the manner in which settlements between the owner/manager of a commercial facility as an end user and the electricity supplier should be made in a situation where declarations under Article 5, Section 1 of the Act are submitted based on last year's electricity consumption data and may differ from the actual value of energy consumed by tenants, a representative of the Ministry of Climate indicated that declarations are submitted in good faith; it is best to rely on historical data. If information about potential higher energy consumption is available, the declaration should be estimated and submitted based on the best knowledge.
Regarding the question of how to settle costs in cases where a tenant uses more than one connection and it is impossible to determine the proportion of energy from a given connection, as required by the declaration's structure, the official noted that, as a rule, it is known what proportion of energy comes from a given connection; the volume of energy covered by the maximum price is determined based on energy consumption points. The lack of submeters for specific tenants necessitates estimating consumption.
We would like to emphasize that the information provided by the official during the meeting regarding the application of the provisions of the Act on the Maximum Price of Electricity is in no way binding, as public administration bodies, including the Ministry of Climate, do not have the authority to provide a generally applicable interpretation of the regulations. Therefore, any property owner's adoption of a specific interpretation of the regulations and the resulting consequences remain solely the property owner's risk.