Polish Concession Fee on Offshore Wind Farms: A Quasi-Tax Hidden in the Energy Law

Abstract

The production of electricity using offshore wind farms is at a preparatory stage in Poland. However, it has the opportunity to become the most dynamically-developing segment of the power industry, especially considering ambitious targets for reducing CO2 emissions. The development of the renewable energy sector in Poland has major real estate tax context when one takes into account that RET paid for the infrastructure projects constitutes an important source of tax revenue for the local communities. The taxation of wind farms is a well-recognised issue, but jurisprudence developed in this area cannot help in solving the problem of the taxation of the offshore wind farms. A legal loophole in the Polish RET provisions made it impossible to tax the offshore constructions. In order to capture the tax from offshore wind farms, the Polish legislator introduced a special concession fee, whose amount is approx. equal to the hypothetical RET to be paid from the wind farm if it was located onshore. The purpose of the article is to present the doubts regarding the offshore concession fee from the perspective of Polish constitutional standards as well as the Polish tax system consistency.