The Energy Poverty in Poland and Polish Communes

It is undeniable that energy poverty is an actual situation and a severe problem in contemporary reality. In short, it occurs when a household is unable to secure a socially and materially required level of energy services in the home

Stefan Bouzarovski, ‘Energy Poverty in the European Union: Landscapes of Vulnerability’ (2014) 3 Wiley Interdisciplinary Reviews: Energy and Environment 276–289.

The above statements are strongly connected with the perception of energy poverty as the obstructed access and problems with the effective use of broadly defined energy (i.e., electricity, gas, heating, or water, and it is also using polluted or dirty fuel substances).

Asghar Akbari, Vahid Vahidinasab, Hamidreza Arasteh, and Ehsan Kazemi-Robati, ‘Rural and Residential Microgrids: Concepts, Status Quo, Model, and Application’ in Sanjeevikumar Padmanaban, C. Sharmeela, P. Sivaraman, and Jens Bo Holm-Nielsen (eds), Residential Microgrids and Rural Electrifications (Academic Press 2022) 131–161.

Interestingly, the described problem exists not only in developing

Morgan Bazilian, Smita Nakhooda, and Thijs Van de Graaf, ‘Energy Governance and Poverty’ (2014) 1 Energy Research & Social Science 217–225.

This shows that the creation of law and policy that protects citizens from energy poverty now and in the future should focus on ways of combating and preventing it to avoid its hard-to-remove and long-lasting effects. Consequently, alongside the necessary amendments to the law, changes should be introduced not only on the international or national level but especially locally, which will make it possible to adjust them to the prevailing conditions and especially to the needs of the residents of a commune. Such an approach makes municipalities the central element in that sphere and a link between all levels of regulations. Moreover, it is the next step in building an energy democracy, a concept in which the renewable energy transition is paired with democratization of the production and management of energy resources, which is conducted by, among others, decentralization of energy systems

Jennie C. Stephens, ‘Energy Democracy: Redistributing Power to the People through Renewable Transformation’ (2019) 2 Environment: Science and Policy for Sustainable Development 4–13.

The present paper seeks to show the vital role of municipalities in combating the problem of energy poverty. First of all, this paper attempts to identify what types of issues connected with energy crisis are faced by communes, how they cope with them, taking into consideration the unique role and impact of the central and EU authorities on the actions of municipalities. As a result, it is possible to point at this stage to the main fields of analysis that can provide answers to the following questions: (a)

How is the phenomenon of energy poverty seen and defined in the Polish legal system?

Because of the lack of a universal definition of energy poverty, it is also challenging to measure. It is understood and formulated differently in various science fields; consequently, there is no unified system of indicators enabling its analysis in the same way in every country. What is more, in the doctrine and research, there is a distinction between energy poverty and fuel poverty

Stefan Bouzarovski, and Saska Petrova, ‘A Global Perspective on Domestic Energy Deprivation: Overcoming the Energy Poverty–Fuel Poverty Binary’ (2015) 10 Energy Research & Social Science 31–40.

Energy poverty exists on Polish ground particularly in the second meaning, as the financial aspect of the problem prevails over the general issue of access to energy services. It should be clarified that no general methodology for studying energy poverty has so far been developed in Poland to help identify persons suffering from it and to implement appropriate tools to solve the problem

‘Raport z analizy problemu ubóstwa energetycznego w gminach województwa małopolskiego of 2022’ [‘Notes from Analysis of Energy Poverty in Lesser Poland’s Communes 2022] 3 <file:///C:/Users/admin/Downloads/Raport-z-analizy-ubostwa-energetycznego-we-wszystkich-gminach-wojewodztwa-002.pdf> accessed 22 March 2023.

A study based on the above five indicators showed that in Poland in 2017, almost 10 per cent of households (1.33 million out of 13.57 million) suffered from multi-dimensional energy poverty. It is 8.8 per cent of the population (3.35 million persons out of 38 million). By comparison, 25 per cent of households in Poland suffer from energy poverty in one dimension, while two in three households are not affected by any dimension of energy poverty

Ibid. 97.

By comparison, those numbers do not change much over time. In 2013, energy-related expenses were at the level of 11 per cent of all expenses of a household, which means that they were 50 per cent greater than the average expenses in the other EU member states.

Świerszcz and Ćwik (n 18) 136.

Interestingly, the level of energy poverty varies across the country. Five out of the sixteen voivodeships in Poland, being at the same time the largest regions (i.e., Masovia, Greater Poland, Silesia, Lesser Poland, and Lower Poland) have an energy poverty rate at the level of 49 per cent of all energy-poor households (52 per cent of all households)

Sokołowski, et al. (n 20) 106.

This also leads to differences in energy levels of households in particular communes. The phenomenon affects many households in some communes, while in others it is hardly reported. A general study shows that in rural areas and small towns, household incomes are, on average, lower than in cities, while the share of households depending on farming or welfare transfers and the share of households occupying detached houses are higher. Consequently, homes in rural areas constitute a larger part of energy-poor households, given that 44 per cent of energy-poor households are in rural areas, compared to 33 per cent of all households

Sokołowski, et al. (n 20) 106.

The impossibility of presenting individual data for communes is caused by the fact that most studies show results for voivodeships, and those conducted in communes demonstrate low participation of authorities and residents in such studies, which might result from the low awareness of the subject

Dominik Owczarek, and Agata Miazga, Ubóstwo energetyczne w Polsce–Definicja i charakterystyka społeczna grupy [Energy Poverty in Poland: Definition and Social Characteristics of the Group] (Fundacja Instytut na rzecz Ekorozwoju 2015) 15.

The reason for that is hard to understand, given the need to create tools combating energy poverty on the central and local state levels and the important role local authorities play in that process. The aid provided by communes to persons affected by energy poverty is more efficient than that given by central authorities. In particular, it is the effect of undertaking actions needed on a smaller scale that enables providing aid and services in forms and regularity adapted to local conditions. For this reason, it is necessary to estimate the number of households suffering from energy poverty on a commune level to plan and develop an adequate policy and financial plans

Iwona Figaszewska, ‘Ubóstwo energetyczne–co to jest?’ [‘Energy poverty: what is it?’] (2009) 5 Biuletyn Urzędu Regulacji Energetyki 19.

It can be seen that legal regulations frequently combine the phenomenon of energy poverty with energy safety, the right to energy and, generally understood, poverty. That way of perceiving this issue significantly impacts the shape of regulations and introduced legal tools counteracting energy poverty.

Nowadays, energy is crucial for a minimum subsistence and the use of other goods needed for everyday life

Marcin Marszałek, ‘Prawo do energii’ [‘The Right to Energy’] (2017) 11 Państwo i Prawo 70.

Although it is legally defined, energy safety is still a controversial concept due to its ambiguity and the lack of a universal legal meaning that describes its complex nature

Izabela Maria Jankowska, ‘Bezpieczeństwo energetyczne w polityce bezpieczeństwa państwa’ [‘Energy Safety in the State Energy Policy’] (2015) 11 Studia Lubuskie 153; Zuzanna Dziedzic, ‘Państwowe monopole czy w pełni liberalny rynek energii–co bardziej sprzyja bezpieczeństwu energetycznemu?’ [‘National Monopolies or Fully Liberal Energy Market: What Is More Effective for Energy Safety?’] (2011) 2 Przegląd Strategiczny 353.

The right to energy is based on the above-mentioned meaning of energy safety. Nevertheless, a literature review shows that it is perceived in a wider range. It is frequently connected with dignity and is perceived as support for the exercise of other rights guaranteed for entities

Judgment of the Constitutional Tribunal of 25 July 2006, P 24/05, OTK-A 2006, no. 7, pos. 87, 4.04.2001, K 11/00, OTK 2001, no. 3, pos. 54; Marek Chmaj, ‘Źródło wolności i praw człowieka’ [‘The Source of Human Freedoms and Rights] in Marek Chmaj (ed), Wolności i prawa człowieka w Konstytucji Rzeczypospolitej Polskiej [Human Freedoms and Rights in the Polish Constitution] (Wolters Kluwer 2016) 32–48.

In view of the above, energy poverty could be defined as a state in which energy recipients encounter various obstacles in access to and the enjoyment of energy safety. Seen in this way, it is also a phenomenon undermining residents’ rights, which makes combating it an action within the public interest and the responsibility of the state and its authorities. On the other hand, that approach can be named only ‘a causal definition’ of the issue that cannot explain its real meaning, especially the grounds and consequences. This can be solved by describing that phenomenon by means of the existing legal framework, particularly on poverty.

Energy poverty is frequently seen in research and legal regulations as part of a broader category of poverty, which hugely impacts the creation of means to counteract it. The above-mentioned financial aspect of the issue justifies it. As a result, social assistance is typically perceived as an adequate tool against energy poverty, which makes it possible to dedicate aid according to ‘the autonomous area of local [state] regulations’

See more: Iwona Sierpowska, Pomoc społeczna jako administracja świadcząca. Studium administracyjnoprawne [Social Assistance As a Providing Administration: Administrative and Legal Study] (Wolters Kluwer 2012).

Although these three concepts make it possible to define energy poverty, it was absent from both international and domestic legal acts for a long time. The situation has changed due to progressive climate, environmental changes, and an ever-increasing real risk of an energy crisis.

For Polish domestic law, the most important role in this matter is played by EU regulations, which are the starting point for the creation and development of state legal acts and approaches. Nowadays, the term ‘energy poverty’ is incorporated into many EU documents, including the EU’s ‘Third Energy Package’. The obligations for member states arising from them can be named as an obligation to form an integrated approach to the energy issue, especially energy poverty, as part of their social policies. This is to be understood as the improvement of social policies and housing energy efficiency achieved, thanks to multi-level governance.

It was stated in the 2010 Opinion of the European Economic and Social Committee on ‘Energy poverty in the context of liberalization and the economic crisis’ that ‘combating energy poverty is a new social priority that needs to be tackled at all tiers of government and the EU should provide common guidelines to ensure that all Member States adopt the same approach to eradicating this phenomenon’

Opinion of the European Economic and Social Committee on ‘Energy poverty in the context of liberalization and the economic crisis’ (exploratory opinion), 2011/C 44/09, C 44/53.

Later, it was stressed in the 2019 Opinion of The Committee of Regions ‘Multilevel governance and cross-sectoral cooperation to fight energy poverty’ that

since energy poverty is already a well-known problem and is now being increasingly recognized in the EU’s legislative framework with explicit obligations on Member States, nobody will be able to claim in the future that they were unaware of the issue: policies and specific measures are needed; notes, however, that the precise definition of the different aspects and effects of energy poverty as well as the necessary indicators to measure them need to be developed with full attention to the diversity of regional and local circumstances in order to ensure that policy measures can be targeted and implemented effectively.

Opinion of the European Committee of the Regions on ‘Multilevel governance and cross-sectoral cooperation to fight energy poverty’ ENVE-VI/038.

Then, in the 2022 Opinion of The Committee of Regions ‘Towards a socially fair implementation of the Green Deal’

Opinion of the European Committee of the Regions on ‘Towards a socially fair implementation of the Green Deal’ ENVE-VII/022.

In Directive 2009/72/EC, which is one of the most important acts regulating the matter of energy in the EU, it is precisely stated that ‘energy poverty is a growing problem in the Community and Member States which are affected and which have not yet done so should therefore develop national action plans or other appropriate frameworks to tackle energy poverty, aiming at decreasing the number of people suffering such situation.’ Existing Directive 2019/944 creates the rules for member states to collect information and measure energy poverty and it also states that

Where Member States are affected by energy poverty and have not developed national action plans or other appropriate frameworks to tackle energy poverty, they should do so, with the aim of decreasing the number of energy poor customers. Low income, high expenditure on energy, and poor energy efficiency of homes are relevant factors in establishing criteria for the measurement of energy poverty. In any event, Member States should ensure the necessary supply for vulnerable and energy poor customers. In doing so, an integrated approach, such as in the framework of energy and social policy, could be used and measures could include social policies or energy efficiency improvements for housing. This Directive should enhance national policies in favour of vulnerable and energy poor customers.

In its further regulations, the Directive creates the grounds for protection of final recipients, especially vulnerable consumers, and the criteria for measuring energy poverty based on low income, high expenditure of disposable income on energy, and poor energy efficiency.

Regulating the issue of energy poverty in directives and opinions results in the lack of a universal and identical definition of this concept in every member state. A major benefit of that solution is the possibility to adapt it to local conditions. Its drawback is that in each case it can be measured using different measurements and described with diverse indicators. This situation is further complicated by the fact that there is no limit to the creation of indicators and even to diversifying them in the internal legal system due to the aid scheme that can be provided, which is the case with the Polish regulations.

Because of the impact of EU law on the domestic legal system and the general global situation, it is possible to observe changes in the approach to the energy crisis and energy poverty in Polish regulations. It started in 2013 with the introduction, according to the Union provisions, of a definition of ‘the vulnerable customer’ into Art. 3 points 13 c) and 13 d) of the Energy Law Act, who is identified using social and living criteria

Judgment of Supreme Administrative Court of 2 June 2022, III OSK 5152/21, LEX no. 3353286.

According to Art. 5gb of the Energy Law Act, energy poverty is described as a situation in which a household conducted by one or more persons in a dwelling or a detached house, not used for business purposes, is not able to provide for itself a sufficient level of heating, cooling, and electricity for devices. This definition requires that a household meets the following three criteria: low income, high expenditures on energy, and, pursuant to Art. 5gb, occupying a dwelling or a building of low energy efficiency. The European Commission Recommendation of 14 October 2020 (UE) 2020/1563 lays down that the criteria for energy poverty qualifying for the programs reducing that phenomenon be defined in each strategy.

At first glance, the definition is mainly based on the financial aspect of energy poverty, as can be seen in the three criteria mentioned above. Second, it describes only the situation of consumers suffering from poverty, leaving the problems of other individuals, self-government units, or entrepreneurs outside its scope. Although it responds to the EU way of understanding that issue, it is also controversial, especially when it shapes the ways of preventing and combating energy poverty. Consequently, it makes them a social aid, which makes the general and systematic approach to the issue problematic. And through this, it moves the actions against energy poverty from central to local authorities.

The policy against legal poverty is pursued in Poland in a multi-governance manner by state and local authorities. Generally, state authorities create law and project its directions, while local authorities perform actions and carry them out in relation to residents. The government administration is responsible for providing long-term energy safety, and it sets the direction for regulations, while communes take actions foreseen in their development strategies

The Energy Policy of Poland until 2025 is encapsulated in Assumptions: A Document Adopted by the Council of Ministers on 4 January 2005, p. 13.

Neither The Local Government Law nor The Law Energy Act literally makes counteracting energy poverty a commune task. This does not mean that it is not; it would be against the idea of all the amendments to law introduced so far to deal with that issue. It only needs to be interpreted from the values and then regulations and other tasks assigned to communes. It seems the most natural to derive it from local energy safety and communes’ mandatory responsibility to ensure it. Energy poverty goes against it and is also at odds with the right to energy. Therefore, it is an obstacle to the expected state of energy safety, which is certainly needed for the state economy and a strategic position but is also a condition for human well-being.

It cannot be denied that energy supply is a basic collective need. Supplying energy provided for in Art. 7 point 3 and 3a of the Local Government Law Regulations is a commune’s proper task. It contains primarily duties to act to build and sustain community energy self-sufficiency by developing local power-generating potential

Halina Rechul, ‘Bezpieczeństwo energetyczne gminy’ [‘Commune Energy Safety’] (2007) 10 Samorząd Terytorialny 67.

When taking part in the market, a commune is also a recipient of energy, which puts it in the role of counterparty to a contract with an energy company rather than a rule setter. This can both enlarge the scope of energy poverty or help to combat it. Energy poverty can be effectively combated by means of energy clusters, which were introduced into the Polish legal system in 2016 with the amended Act on renewable energy sources

Act of 20 February 2015 r. on renewable Energy sources (uniform text Journal of Laws of 2022, pos. 1378, as amended).

As a regulator, communes take an active part in the suitable organization of energy services provided by separate entities to protect services of public interest from total commercialization

Eugeniusz Wojciechowski, Samorząd terytorialny w warunkach gospodarki rynkowej [Self-government in Condtions of Market Economy] (Wydawnictwo Naukowe PWN 1997) 110 et seq.

Communes’ proper tasks in the field of combating energy poverty are closer to prevention and have a rather indirect impact on persons suffering from it. Those actions are mainly focused on the elimination of the causes of energy poverty, produce effects on a general level, and are addressed to the whole community. Tasks commissioned to communes by the government administration play a different role. Their analysis proves that they are part of the state social policy and take the form of a social allowance

Angelika Kurzawa, ‘Pomoc dla odbiorców wrażliwych energii elektrycznej – dodatek energetyczny’ [‘Hhelp for the Vulnerable Consumer of Electricity: Energy Allowance’] (2016) 2 Studia Prawnicze i Administracyjne 35.

For example, the energy allowance granting process belongs to the competence of the local self-government in a commune. An energy allowance is granted by an executive body in an administrative decision on the application by a consumer claiming energy vulnerability (Art. 5d of the Energy Law Act). A commune cannot therefore begin the procedure on its own, but on the initiative of an entity

See: Judgment of Voivodship Administrative Court in Cracow of 6 May 2016, III SA/Kr 1421/15, Lex no. 2050421.

Deceptively existing instruments can be seen as parts of a complementary system effectively counteracting energy poverty based on the actions of the government and commune administration, which prevents and deals with the effects of that problem. First, the energy policy in the area of combating energy poverty depends on numerous factors, and it is very specific from country to country and commune to commune. Therefore, the ability to deal with it will be different in every commune and determined by various factors. A closer look at the regulations and their functioning shows that the road to the achievement of that purpose will be illusory and difficult.

Counteracting energy poverty in communes can lead to a conflict of values guaranteed in the public interest and can therefore be insufficient. Self-government authorities are obliged not only to secure energy safety, plan their actions, provide energy (fuels suitable to the infrastructure) to residents but, at the same time, to protect other important values, such as the natural environment, and combat other social problems occurring. The Constitutional Court held in its judgement of 25 July 1996 that there may be a conflict in the energy economy between such values and constitutional principles as economic freedom, citizen safety, sustainable development, and environment protection. It is the responsibility of public authorities to provide energy safety with consideration given to ecologic safety

Judgement of the Constitutional Tribunal of 25 July 2006, P 24/05, OTK-A 2006/7/87, Dz.U.2006/141/1012 <www.otk.trybunal.gov.pl> accessed

Although commune self-government is seen as an increasingly important leader in the renewable energy sources development

Eryk Kosiński, and Michał Trupkiewicz, ‘Gmina jako podmiot systemu wspierania wytwarzania energii elektrycznej z odnawialnych źródeł energii’ [‘The Commune as an Eentity in the System of Supporting Production of Renewable Resources Energy’] (2016) 3 Ruch Prawniczy, Ekonomiczny i Socjologiczny 93–107.

First, the state legislation regulating spatial planning, including renewable energy sources, is too complicated and regulated in many legal acts, both national and local, making it hard to navigate it

Katarzyna Małysa-Sulińska, ‘Regulacje szczególne dotyczące wydawania decyzji o warunkach zabudowy dla inwestycji kwalifikowanej jako instalacja odnawialnego źródła energii’ [‘Special Regulations Regarding the Issue of Decisions on Building Conditions for Investments] (2019) 3977 Acta Universitatis Wratislaviensis 469–481.

This dependency is depicted in Art. 18 (2) point 1 of the Energy Law Act, which requires local energy planning acts to be consistent with spatial planning. This imposes on a commune the obligation to know the local market conditions exactly and make a forecast both at the stage of spatial and later energy planning. But it still cannot be enough to develop a sufficient policy against energy poverty. The problem lies both in the procedure of preparing energy plans and later in their legal nature.

The introduction of energy plans in communes is conditional and indicates a gradation of commune tasks. The only legal obligation that must be fulfilled is the adoption of assumptions for plans on heat, power, and gaseous fuel supply for communes (Arts. 19 and 20 of the Energy Law Act). A plan can be adopted in a commune only when the energy company’s plans do not meet the assumptions. Moreover, when a professional energy supplier operates in a commune, there is no obligation for a commune to supply energy for residents. It corresponds with the popular view that one cannot interpret a commune’s task of supplying energy to its residents from Art. 18 of the Law Energy Act

Jerzy Baehr, Edward Stawicki, and Jacek Antczak, Prawo energetyczne. Komentarz [The Energy Law Act: Commentary] (Zakamycze 2003) 167.

Another problem is the mandatory nature of the stipulations made in plans and, at the same time, their lack of flexibility. Energy plans are not normative acts but are qualified as an act of applied law

Marek Zirk-Sadowski, ‘Tak zwana prawotwórcza decyzja sądowego stosowania prawa’ [‘So-called Law-making Decision of Court’s Application of Law] (1980) 1–2 Studia Prawnicze 255.

Reports published by the Supreme Audit Office listed examples of communes’ efforts to improve the local energy policy and combat energy poverty. They were all declared as insufficient. Participation in clusters and the use of new technologies, especially in renewable energy sources, did not lead to energy safety and did not produce any effects. A majority of the audited communes also did not adopt or update assumptions for plans on the heat, power, and gaseous fuel supply. The adopted assumptions contained many errors concerning forecasts of residents’ needs and systems efficiency. Moreover, there were no systems monitoring how authorities and energy companies reached the energy goals. There was also a marked absence of communication between local and government authorities, who did not have a good understanding of their needs and actions

The Supreme Audit Office Report on Local Energy Safety from 2022 <file:///C:/Users/admin/Downloads/kgp_p_19_014_201905211159531558432793_01%20(1).pdf> accessed 10 March 2023.

Similar problems are also visible in the micro-scale specified by allowances dedicated to individuals suffering from energy poverty. They result from the restriction of access to allowances only to specific recipients and a lack of a system to verify it.

Although common sense would dictate that communes’ tasks fulfil the public interest

Jan Boć in Jan Boć (ed), Prawo administracyje (Kolonia Limited 2000) 24.

Problems begin with the definition of ‘a vulnerable consumer’ in the Energy Law Act. The regulations provide that it can only be a person who has received a household allowance. It means that persons who suffer poverty but do not meet that formal condition are outside the law’s scope

Judgment of the Voivodship Administrative Court in Szczecin of 6.04.2017, II SA/Sz 20/17, LEX no. 2276451.

Limiting the energy allowance only to a vulnerable consumer also excludes other entities who are affected by energy poverty problems as a consequence of actions of their debtors (i.e., communes or energy companies). Under Art. 5e, the payment of an allowance must be made straight to a vulnerable consumer. In addition, the regulation also does not provide any imperative steps to force a recipient to pay his energy bills using an allowance. Consequently, there is no mechanism to verify how the funds were spent

Skoczylas and Swora (no 70) 9.

The above analysis shows that both the whole system and the particular means to combat energy poverty are not appropriate. They miss the point and make a wrong impression of directed actions without solving the real problem at the level of causes and effects. This seems to be a consequence of a failure to notice the complex nature of energy poverty and its repercussions. The lack of the term ‘energy poverty’ in the legal acts (except for a definition in the Energy Law Act) and the need to interpret it using other terms like ‘energy safety’ or ‘vulnerable consumer’ make it invisible and let it lie hidden under other problems, tasks, and operations. There is a chance that naming this problem literally could help to create instruments dedicated to fighting it directly and not by way of solving other issues. It can change the perspective of the actions by public administration and widen the scope of perception of the problem of energy and energy poverty, which is not only a financial problem of individuals, but an issue that impacts all communities in communes, the state, and further.

This paper is only a humble attempt to examine the problem of energy poverty in Poland. Because energy poverty itself and its management are multi-dimensional and complex problems, it is almost impossible to investigate them comprehensively in such a study. However, the above considerations and conclusions allow for pointing out the most important issues and reasons for still existing problems.

Combating energy poverty efficiently requires a correct specification of its nature. It has been shown that it is not only a financial issue for an individual and individuals suffering from poverty but a serious social problem that directly and indirectly impacts all communities and nations. Nowadays, it is not only connected with infrastructure problems and the shortage of fuels, but also environmental security, the health system, communication, and education. Just as energy safety has a strategic meaning, energy poverty is a threat to it and a sign of the weakness of the state.

Therefore, it is necessary to adapt the legal system to such an understanding of this phenomenon so the lawmaker and the authorities understand it better and select suitable instruments to combat it. The legal system should not only shape the future of the country, but it is also a mirror for reality. The problem of energy poverty shows that the existing regulations do not apply to non-legislative conditions; it is also due to a failure to see ‘energy poverty’ in regulations, which are ineffective with this issue. Consequently, strong domestic and international cooperation, both on the level of the general and local law-making process and between government and self-government authorities and communities, is the key to the problem. It leads to opening to new possibilities and correcting errors that tend to be continuously overlooked.