Public Administration Functions in the Developing Hydrogen Market

The energy and climate crisis are two of the largest challenges in the modern world.

World Economic Forum and Marsh McLennan and Zurich Insurance Group, ‘The Global Risks Report’ (2023) 13–14 i 29 <https://www3.weforum.org/docs/WEF_Global_Risks_Report_2023.pdf> accessed 12 March 2023.

The challenges of the energy crisis outlined above have a current character. Obviously, it cannot be concluded that, before the crisis began, the world did not see the need to conduct changes in the energy system, as the process of energy transition towards a total reduction of greenhouse gas emissions has been going on with increasing intensity for at least a decade.

One of the groundbreaking international obligations to reduce emissions is the Paris Agreement to the United Nations Framework Convention on Climate Change, drawn up in New York on 9 May 1992, adopted in Paris on 12 December 2015 (Dz. U. of 2017 item 36).

The current pace of the energy transition process does not allow for energy safety and thus a way out of the energy crisis.

Tomasz Długosz, ‘Rola samorządu terytorialnego w rozwoju energetyki obywatelskiej’ in Katarzyna Małysa-Sulińska, Marcin Spyra i Andrzej Szumański (eds), W poszukiwaniu dobrego prawa. Księga Jubileuszowa Profesora Mirosława Steca (Wolters Kluwer 2022).

Undoubtedly, hydrogen technology is flourishing

Global Data, ‘Green Hydrogen Leaders – Q1 2022’ <https://www.globaldata.com/data-insights/macroeconomic/green-hydrogen-leaders-q4-2022/> accessed 12 March 2023.

The previous considerations concerning the directions of development of the hydrogen economy and the assumptions of the future law provided an introduction to the issue of the functions of the public administration in this regard. In the following part of the article, these functions will first be characterised and then, within the framework of the adopted systematics, they will be referred to the hydrogen market.

Undoubtedly, the functions of public administration are characterised by their dynamic nature, which implies variability depending on the current political vision and economic and social conditions of the state, reflecting global trends and, to a significant extent, the direction of EU development.

Lidia Zacharko, ‘Administracja publiczna we współczesnym państwie’ in Jolanta Blicharz and Lidia Zacharko (eds), Globalizm a personalizm wobec administracji publicznej Studium prawno-administracyjne (E-Wydawnictwo. Prawnicza i Ekonomiczna Biblioteka Cyfrowa 2019) 16–17.

In the pages of this article, the functions of public administration will be presented according to the systematics of R. Stasikowski, including the planning function, the supervisory function, the policing function, the rationing function, the function of service administration, and the regulatory function.

Rafał Stasikowski, ‘Funkcja nadzorcza administracji publicznej’ (2009) 11 Finanse Komunalne 5.

The planning function expresses itself in the planning of activities that constitute intentional intervention by the public administration of a powerful or nonpowerful nature, such as in areas where planning is obligatory and where, in the light of the authority’s recognition, it is preferable from the perspective of the public interest. Analysing function should be given a positive meaning: for instance, in contrast to the supervisory function, it does not play the role of convalidation of an undesirable state, but a conscious creating of a given area of the public sphere. Planning activities create areas of socioeconomic life in accordance with public values and are a form of prevention of self-regulation. Planning takes on an all-encompassing, continuous, and long-term oriented character while remaining flexible to changing circumstances and, with them, new goals and directions of development. The classification of planning acts is wide, including differentiation with regard to binding force; generally, binding plans are adopted in the form of statutes, regulations and acts of local law, but there are also plans regarding a limited circle of addressees and plans without a binding attribute.

Rafał Stasikowski, ‘O istocie funkcji planistycznej administracji publicznej’ (2009) 5 Przegląd Prawa Publicznego 30.

The supervisory function is one of the oldest functions of public administration, which is a manifestation of administrative authority resulting in the creation of limitations in the private sphere to protect the public interest. The supervisory action of public administration is expressed through enforcement by the appropriate authorities of compliance with binding orders and prohibitions and through the concretisation of policing and rationing norms towards an individualised addressee. The intervention carried out under supervision joins authority and control, which means that if the supervising authority finds a state of illegality, the attribute of authority that characterises the public administration body constitutes the mandate to take action, on the basis and within the limits of the law, aimed at restoring the state of legality. The purpose of supervision is twofold, meaning that, on the one hand, supervisory activities are intended to ensure compliance with the law and, on the other hand, to protect the rights of those who are within the reach of the supervised entities.

Ibid.

The policing function, also referred to as the order function, is a protective function of a negative nature, which means that its essence is to maintain or restore a state of lawfulness. The purpose of the policing function is to protect policing goods, which include, in particular: life, health, property, public safety or the natural environment (this catalogue is open and variable about reality). Policing action to protect a particular policing good is characterised by administrative authority and may be taken as a result of a breach or in a preventive character, minimising the risk of a threat.

Rafał Stasikowski, ‘O funkcji policyjnej administracji publicznej’ (2009) 4 Przegląd Prawa Publicznego 15–16.

The rationing function consists in limiting the scope of liberty of the entity in areas of socioeconomic life, due to the primacy of goals serving the public interest. Rationing is expressed in the shaping of socioeconomic relations through state intervention in that sphere which public administration bodies consider as desirable to achieve certain public goals. Therefore, entities active in the area covered by rationing do not have liberty of action, but are subject to certain standards, thus allowing for the protection of rationing goods. It should be noted that the catalogue of rationing goods is of a variable nature, depending on socioeconomic realities, including, in particular, developments in science, technology and the impact of EU regulations.

Rafał Stasikowski, ‘O istocie funkcji reglamentacyjnej administracji publicznej’ (2009) 9 Przegląd Prawa Publicznego 16–17.

The function of the service administration comes down to the role of public administration as an organiser of public life, fulfilling the obligations defined by law towards citizens. This function means the performance of services by the administration, the addressees of which may be either individualised entities or society in general. The basic forms of action of the service administration are the enterprise and the administrative establishment. It is worth noting that the administration allows the performance of services with the participation of nonpublic entities as often more efficient, thus increasing the quality of its services. The evolution of public administration according to the challenges of the times means that the services it performs are variable and adapted to current public needs.

Renata Raszewska-Skałecka, ‘W obliczu administracji świadczącej i jej zadań publicznych w ujęciu nauk administracyjnych’ in Jolanta Blicharz and Renata Raszewska-Skałecka (eds), Efektywność ekonomiczna jako cel prywatyzacji zadań z zakresu administracji świadczącej (E-Wydawnictwo. Prawnicza i Ekonomiczna Biblioteka Cyfrowa 2020) 13.

The regulatory function is directed towards the achievement of public goals by defining, universally and uniformly, the standards governing entities undertaking activities regulated by the state. Activities falling within the scope of the regulatory function should be characterised by continuity, universality and quality of services defined by law and provided by private entities performing privatised public tasks.

Rafał Stasikowski, Funkcja regulacyjna administracji publicznej. Studium z zakresu nauki prawa administracyjnego oraz nauki administracji (Branta Publishing Company 2009) 336.

The presented considerations allow us to make several conclusions. First, it should be noted that the current energy system is not resilient to an energy crisis, because the access to natural gas is conditioned by unstable geopolitical factors. Moreover, the energy system, based on the dominant share of fossil fuels, is moving towards a climate crisis. The recommended energy technology to be introduced, with the capacity for wide application in the economy, is hydrogen, which can be obtained from low- and zero-emission energy sources. The need for hydrogen development is a common global direction and finds expression at the EU strategy level, as reflected in the Polish hydrogen strategy. Regarding the emerging hydrogen market, the activity of the public administration has been limited so far to the planning function, being a result of EC activities. Meanwhile, the EU has already begun to realise the goals of the hydrogen strategy in the form of the adoption of the relevant law (the so-called hydrogen package), thus in Poland, a draft amendment to the Energy Law is being prepared to define the legal framework needed for hydrogen. The proposed EU and national regulations for hydrogen assume the construction of the necessary infrastructure, the participation of new actors and the introduction of new hydrogen services. In this regard, we can identify the significant role of public administrations from the perspective of their functions in the hydrogen market. The public administration, through the President of the ERO competencies, will perform a regulatory function by ensuring the operation of energy enterprises by the EL and energy policy; a regulatory function by granting licenses for activities subject to the obligation to obtain them and a policing function by protecting policing goods: energy safety and environmental protection, and by sanctioning illegal activities. The supervisory function will be performed by the minister in charge of energy responsible for the safety of the supply of gaseous fuels. Meanwhile, the service administration function will be carried out by hydrogen operators as providers of privatised public services, for the transmission and storage of hydrogen and the management of hydrogen interconnected systems.