According to the judgment of the Constitutional Tribunal of July 22, 2020, the regulations that introduced changes in the taxation of wind farms with retroactive effect from January 1 in mid-2018 are inconsistent with the Constitution. Moreover, the unconstitutional provision will expire in 18 months from the date of publication of the judgment in question in the Journal of Laws.

The Constitutional Tribunal found it justified to minimize the impact of the judgment issued in the present case on the already established legal relations and decided that it was necessary to postpone the date of ending the binding force of an unconstitutional regulation, while being aware that it was not a sufficient instrument to ensure the protection of municipal property rights. However, apart from the postponement, the Constitutional Tribunal has no other means of influencing the binding legal status within its powers.

In the period of postponement of the expiry date of the challenged regulation, the legislator is obliged to bring about a state compliant with the Constitution, which in this case will require the establishment of appropriate statutory solutions and compensation for the losses incurred by communes as a result of the retroactive introduction of the regulation reducing their revenues from the tax on power plants wind.

The challenged regulation retains its binding force and requires application. Only when the judgment of the Constitutional Tribunal would not be executed by the legislator and the regulation inconsistent with the Constitution would be derogated under this judgment, would the condition of Art. 190 paragraph. 4 of the Constitution and the State Treasury would be liable for damages.

Judgment of the Constitutional Tribunal:

  1. Art. 17 point 2 of the Act of June 7, 2018 amending the Act on renewable energy sources and certain other acts (Journal of Laws, item 1276), to the extent that it introduced retroactively art. 2 points 1 and 6 and article. 3 point 1 of this act is inconsistent with that derived from Art. 2 of the Constitution of the Republic of Poland, the principle of non-retroactivity of law (the principle of lex retro non agit).
  2. The provision listed in Part I, to the extent indicated therein, shall cease to apply after 18 (eighteen) months from the date of publication of the judgment in the Journal of Laws of the Republic of Poland.