This article analyses the amended Act on the protection of shipping and seaports that, according to media, is allegedly a response of policymakers to numerous claims that offshore wind farms in Polish sea areas remain without adequate protection against any terrorist acts or sabotage.

Unfortunately, after the analysis of the above-mentioned amendment, one has to come to completely different conclusions, which will be presented in this article.

Terrorist attack in legal terms

Before we move on to analysing the scope of the amended regulations, some attention has to be paid to the term used in art. 27 of the Act of 4 September on the protection of shipping and seaports (the harmonised text in the Journal of Laws from 2022, Item 2257, as amended), namely ‘terrorist attack’. The Act of 10 June 2016 on anti-terrorist measures has to be referred to here (the harmonised text in the Journal of Laws from 2022, Item 2632), and more precisely art. 2(7) of that legal act, which contains a legal definition of a ‘terrorist event’.

According to that regulation, a terrorist event is a situation for which it is suspected that it has occurred as a result of a terrorist crime mentioned in art. 115 § 20 of the Act of 6 June 1997 Penal Code or a hazard of such a crime. The Penal Code indicates that a terrorist crime is a prohibited action that is subject to a penalty of deprivation of liberty of minimum 5 years, committed in order to:

• - terrorise a large number of persons,
• - force a public authority of the Republic of Poland or another state or an authority of an international organization to take or abstain from specific activities,
• - cause substantial disruptions in the system or economy of the Republic of Poland, another state or an international organization, and
• - a threat of committing such an act.

The structure of this regulation shows that a terrorist crime may occur in two forms:

• 1) as a prohibited act, which fulfils both the following conditions:
• a) it carries a penalty of deprivation of liberty of minimum 5 years, and
• b) it has been committed for one of the three alternative objectives;
• 2) as a prohibited act being a threat of committing an act that fulfils the above-mentioned conditions.

Hence, a basic element of a definition of a terrorist crime is a purpose for which a perpetrator is to commit such a prohibited act. Such a purpose, which determines a direct intention of the perpetrator’s behaviour, is the serious threatening of a large number of persons, forcing a public authority (of the Republic of Poland or another state) or an authority of an international organization to take or abstain from an action or causing major disruptions in the system or economy of the above-mentioned entities.

It should be also kept in mind that in the light of the above-mentioned regulations, it is not necessary that the objectives for which a prohibited act is committed have to be fulfilled. The legislator has explicitly determined the intentional level of threatening or causing disruptions by a perpetrator as serious, which in everyday language means major, important or one that should not be neglected. Auxiliary criteria to assess if a threat is serious may include its personal or spatial scope as well as high probability of events which cause concerns, and finally the size of the event that instils fear.

It is worth emphasizing that art. 115 § 20 of the Act of 6 June 1997 – Penal Code, defining a terrorist crime, was introduced into the Polish legal system due to the necessity to implement the Council Framework Decision 2002/475/WSiSW of 13 June 2022 on combating terrorism (OJ EC L 163 p. 3). The following are terrorist crimes in this community law, among other:

• - causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss; or
• - interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life.

Postulates to change the definition of a terrorist crime

Opinions are voiced more and more frequently that the criterion of assessing a terrorist crime applied by the Polish legislator does not refer to the essence of such a prohibited act. A doubt has been raised why the catalogue of crimes that are to be considered as terrorist has been limited only to those carrying the minimum penalty of 5 years of imprisonment, if the core of terrorism is not how severely an act is punished, but what the objective of perpetrators is.

Therefore, it is postulated that only such a purpose should define the limits of the terrorist crime concept. If the purpose of distinguishing a terrorist crime is to make penalties more severe, this becomes even more necessary if a moderate sanction is possible.

From the point of view of this article, the most important action of a perpetrator will be if the action is aimed at causing major disruptions to the system or economy of the Republic of Poland. One has to agree that at the time of starting the distribution of electricity from wind farms on Polish sea areas, a terrorist attack against such facilities will be an action aimed at causing major disruptions to the Polish economy.

Amendment to the Act on protection of shipping and seaports – ‘no’ to the protection of OWFs

Unfortunately, the analysed amendment to the regulations of the Act does not provide for covering Offshore Wind Farms in Polish marine areas with such protection.

According to both applicable regulations of the Act, i.e. art. 27 of the Act of 4 September 2008 on protection of shipping and seaports (the harmonised text in the Journal of Laws from 2022, Item 2257, as amended) and the planned amendment, using forces of the Navy will take place in order to prevent, limit or remove a serious and direct hazard to ships, port facilities and ports and their infrastructure, resulting from the use of a ship or a floating object as means of a terrorist attack.

It has to be mentioned that in accordance with art. 2(2a) of the Act, regulations within the protection of ships apply to fixed drilling rigs understood as mining vessels designated for production and processing of hydrocarbons, installed permanently on the seabed, being offshore hydrotechnical structures that are located on Polish sea areas. Therefore, such facilities do not include the infrastructure of OWFs.

Nature of amendment

The amendment itself and scope of changes it introduces, and more precisely amendments to art. 27, do not bring any novelty to the Polish legal system. Such changes are cosmetic only. A major change is the differentiation between hazards that come from civilian vessels and foreign warships or foreign military floating objects.

The remaining scope of the amendment to art. 27 of the Act on the protection of shipping and seaports is nothing but a transfer to the Act of basic authorizations that are included at present in the Regulation of the Cabinet of 9 August 2010 on procedures and methods of cooperating among authorities in order to prevent hazards to ships, port facilities and ports and their infrastructure, caused by the use of a ship or a floating object as means of a terrorist attack (Journal of Laws from 2015, Item 1139). The legislator has included such a justification to the amendment to the Act.

Introduction of ‘dead’ regulations into the Polish legal system

Another issue that requires an in-depth analysis is to what extent the introduced regulations will be ‘dead’ regulations in the Polish legal system.

According to authors, in the present situation, as vividly shown by the loss of flying objects in the Polish airspace, issuing an order aimed at sinking a floating vessel with crew and third parties on its deck (who may turn out to be victims of terrorists) is totally abstract.

This situation results most probably from the fear of policymakers of potential consequences of such decisions, starting from personnel ones, and finishing with those that result directly from penal liability.

This is the outcome of insufficient legal protection by state authorities of persons in high positions in structures of the Polish Army.

Summary

The analysis of the proposed scope of the amendment to the Act on the protection of shipping and seaports leads to the conclusion that the amendment brings nothing new to the Polish legal system, and it certainly does not contribute anything to solving the problem of missing protection of Offshore Wind Farms on Polish sea areas.

On can look in vain in those regulations for a purpose indicated in the justification of the amendment, which involves the necessity to provide the Polish Army with the possibility of reacting effectively to terrorist hazards at sea and in air, which cannot be neutralised with means available for the minister of internal affairs.

In the authors’ opinion, the amendment to the Act is mostly a PR attempt aimed to dismissing an argument that no steps are being taken to ensure the sufficient level of security of OWFs on Polish sea areas.

However, it is worth remembering that the hazard to critical infrastructure on Polish sea areas from potential terrorist attacks is real, while legislative steps taken by the Polish legislator are completely inadequate to the hazard, not to call them sham actions.

Mateusz Romowicz – Legal Adviser
Przemysław Niewiński – Lawyer