In today’s article authors will discuss the possibility of establishing a new service that would be responsible for protecting and ensuring compliance with regulations that concern security on Polish sea areas. This subject matter is becoming up-to-date and urgent, considering the rather ambitious plans of developing the offshore wind power sector as well as the critical infrastructure already existing on Polish sea areas.

It is worth noting that no initial work has even started on establishing the Coast Guard in Poland, which seems bizarre in face of quite ambitious ‘maritime’ plans that concern Offshore Wind Farms and hydrogen installations at sea.

Critical infrastructure on Polish sea areas

As it has been signalled in previous articles, upon the construction of facilities on Polish sea areas that are related to the offshore wind sector, they should be included, pursuant to art. 3(2) of the Act on emergency management of 26 April 2007, in the critical infrastructure as equipment and installations being a part of the system of supplying electricity.

Such services, in line with the above-mentioned Act, are recognised as essential for the security of state and its citizens and used to ensure the efficient operation of public administration authorities as well as institutions and entrepreneurs.

Consequences of including offshore wind farms on Polish sea areas in the state’s critical infrastructure are two-fold.

First, according to the Act on emergency management, an owner and an autonomous and dependent possessor are obliged to provide the adequate security of critical infrastructure systems. This duty is fulfilled primarily by preparing and implementing, according to anticipated hazards, security plans of critical infrastructure and maintaining own back-up systems that ensure security and maintain the operation of such infrastructure until its complete replacement. As critical infrastructure, offshore wind farms should be included in the National Programme of Protecting Critical Infrastructure adopted by the Cabinet, aimed at creating conditions for the improved security of such infrastructure. In accordance with the National Programme of Protecting Critical Infrastructure, a person responsible for the system of energy supplies, energy resources and fuels is the minister competent for state assets together with the minister competent for energy issues and the minister competent for mineral deposit management. Actions taken in the area of this responsibility include, among other, conducting risk assessments of potential disruptions to the system operation and regular analyses of their protection, cooperation with other authorities, which under the Act have competences in a given fragment of the system, supporting the organization of exercises and systemic trainings that raise the efficiency of the system security in terms of organization, techniques and formal-legal requirements as well as consulting system security plans, which results from §4(1)(2) of the Regulation of the Cabinet of 30 April 2010 on critical infrastructure security plans. This secondary legislation details the method of creating, updating and formulating security plans of critical infrastructure developed by owners and autonomous and dependent possessors of facilities, installations and equipment of critical infrastructure as well as terms and conditions and mode of recognising the fulfilment of the duty to have a plan that fulfils the requirements of the security plan of critical infrastructure. Simultaneously, the scope of ministerial responsibilities for specific systems of critical infrastructure is covered by activities of their subordinated or reporting agencies.

The second legal act that requires the recognition of OWFs as an element of state’s critical infrastructure is the Act on anti-terrorist activities of 10 June 2016. It regulates, among other, issues of protecting critical infrastructure in the context of preparing for assuming control over terrorist events. According to the Act, if at least a second alert state is ordered, which is a situation of increased and predictable hazard of a terrorist event, without identifying a specific target of attack, the police becomes responsible for verifying protections of critical infrastructure facilities. Moreover, with respect to selected facilities and taking into account a type of hazard, it enables the chief of the Internal Security Agency to issue detailed recommendations to secure them by the police, in consultation with the minister competent for internal affairs. The Regulation of the President of the Cabinet on the scope of activities carried out at specific alert states and CRP alert states of 25 July 2016, which is secondary legislation to the Act, issued under the statutory power included in art. 16(5) of the Act on anti-terrorist activities, includes the regulation that authorizes the Chief Officer of Police, the Chief Officer of Border Guard or the Chief Officer of the Military Police to introduce the duty to carry long arms and bulletproof vests by uniformed officers and soldiers who are involved directly in tasks of securing sites and facilities that may potentially become a target of a terrorist event, if minimum a second alert state is announced. Therefore, this is no secrete that due to the purpose of offshore wind farms combined with the extended reaction period of competent authorities responsible for state security, which is affected by the location of OWFs on Polish sea areas, such projects may become, after their connection to the Polish energy network, a target of terrorist or sabotage attacks.

It needs to be noted that there are critical infrastructural facilities on Polish sea areas already, such as oil rigs and the Baltic Pipe, partly crossing the exclusive economic zone and the territorial sea of the Republic of Poland. The most important issue is the capacity of Polish maritime services to enforce the law and fulfil duties in providing security on Polish sea areas in order to fulfil tasks related to ensuring the security of critical infrastructure on Polish sea areas.

Authorities responsible for ensuring security on Polish sea areas

Authorities directly involved in ensuring security on Polish sea areas, which are in professional terminology referred to as components of the Polish Nave, include:

• Polish Navy, which is designated to pursue state interests on sea areas, to protect territory of Poland, to participate in the joint defence of NATO states and to reinforce the allied system of deterrence;

• Maritime special operation forces, whose tasks include controlling sea areas, including controls of navigation, protection of sea communication corridors, etc.;

• Border Guard – a police service that operates via its Maritime Branch and provides supervision over the operation of Polish sea areas, ensures following applicable regulations by ships and prosecutes entities that violate them, controls marine environment protection and cooperates with other services and domestic administration on sea areas;

• Local maritime administration authorities; this role is played by two directors of the Maritime Authorities in Szczecin and Gdynia. The Authorities have been provided with competences required to carry out controls and inspections and impose sanctions in the form of financial penalties, issuing administrative orders and imposing fines for violations of law enforced by these authorities;

• Inspector General for Sea Fishery is the central government administration authority. Its chief tasks include supervision over the compliance with regulations on sea fishery and the organization of fish market and imposing financial penalties for violations of such regulations;

• Marine Search and Rescue Service (SAR), which is responsible for searching and rescuing every person in peril at sea and counteracting hazards and oil and chemical contaminations of the marine environment;

• Customs-Revenue Service, which is a uniformed service assigned within the National Inland Revenue Administration, reporting to the Minister of Finance. Its main duties in the marine environment include detection of tax-treasury crimes in waters subject to Polish administration and in seaports and persecuting their perpetrators; and

• Water Police (a unit of prevention Police service), which in the marine environment fulfils tasks of protecting people and property and maintaining security and public order in waters designated for public use (in the territorial sea and internal waters).

The above authorities, which are a part of the Navy of the Republic of Poland, are an important element of the national security system and defending state interests on all levels.

Disturbing fragmentation of Polish Navy

As seen from the above list of authorities that form the Polish Navy, a quite worrying characteristic can be noted. Namely the major fragmentation of authorities responsible for ensuring security on Polish sea areas. Such fragmentation and some overlapping competences sometimes cause substantial problems as well as disputes over their powers among individual representatives of maritime administration. A result of such a multitude of authorities seems to be the operation of maritime administration authorities in different and incompatible systems, either for supervision, monitoring Polish sea areas or exchanging information among different institutions.

A very weak point seems to be the shortage of detailed procedures that determine rules of joint operation and cooperation in situations that require them as well as the lack of a single centre for coordinating such activities of individual components of the Polish Navy. This may lead to two extreme situations, both very dangerous from the point of view of security at sea.

The first is a situation of overlapping competences of two different authorities, with the simultaneous lack of procedures to regulate rules of cooperation, resulting in no reaction of authorities or, colloquially speaking, ‘waiting’ which of the authorities will undertake actions in a situation.

The second situation is equally hazardous, in particular during reporting periods of individual institutions in which various types of statistics are prepared, when several authorities start to react to a single event in order to show its activity in a given area. This situation is equally undesirable, first from economical point of view, and second because this situation involves excessive maritime forces in one event.

No modern watercraft

Another problem that results from the multitude of authorities is the shortage of modern watercrafts in individual components of the Polish Navy, in particular those with multi-day autonomy and seaworthiness that allows the actual fulfilment of tasks in difficult atmospheric conditions at sea.

Vessels both of the Navy and Border Guard are old and their number is really minute. The Water Police Station in Gdańsk as well as units that report to the Customs-Revenue Offices operate small vessels that are not fitted for longer operations at open sea, in particular in difficult water and weather conditions. Units subordinated to the Inspectorate General for Sea Fishery do not have any watercraft at all; therefore, they usually carry out their inspections in ports.

Does this situation affect the security of critical infrastructure on Polish sea areas? According to the authors, its does so substantially. It is sufficient to follow a very simple case study of a ship approaching critical infrastructure facilities. In specific instances a captain of a ship is exposed at best to committing an administrative offence (tort). The risk occurs only in case of identifying a vessel as a perpetrator of an offence. The essential issue in this situation is the incompatibility of systems for supervising and monitoring Polish sea areas, the lack of cooperation procedures and as minimum a centre of coordinating such measures and deficiencies in equipment of specific components of the Polish Navy.

In an ideal situation a ship has the Automatic Identification System (AIS) on and competent authorities that have detected an event, using simple tools available in their IT systems, are capable of proving the violation of regulations. However, what to do in a situation where a vessel has no AIS on or is not fitted with one according to applicable regulations? In this case authorities that belong to the component of the Polish Navy have only a radar image that allows them to observe that an object has entered a designated security zone. In this situation they can only try to contact the vessel by radio in order to identify it and make a contact with nearby vessels to determine data of a vessel that, for example, violates a security zone around OWFs.

If such actions do not bring an expected result, the only solution is to send either watercraft or aircraft in order to identify a vessel that violates regulations. This obviously extends a reaction time, and hence the risk of not detecting a perpetrator, causing substantial financial burdens for an organizational unit incurred due to the operation of watercraft or aircraft. Therefore, as can be seen in this very simple situation, which is not uncommon on Polish sea areas, the critical infrastructure on Polish sea areas is particularly exposed to any and all attempts at sabotage, or even attempts at checking the effectiveness of the Polish security system operation.

The above conclusions are not totally groundless, considering the present geopolitical situation and incidents related to Nord Stream.

Polish maritime law enforcement authorities – a call for change

In order to prevent situations that lead to exposures of critical infrastructure on Polish sea areas or disruptions to its operation or destruction, a number of solutions should be introduced urgently to protect it.

Introduction of a uniform system of supervising sea areas

First of all, as an alternative to the more modern and costly systems of supervision and monitoring Polish areas dedicated to specific authorities, a uniform supervision system of sea areas under Polish jurisdiction should be introduced. Such a system, common for all institutions that create a chain of the marine security system of the Republic of Poland, would be economically beneficial and significantly improve the daily supervision over the security of Polish sea areas.

Obviously, in addition to the main system, a back-up system should be launched to provide the continuity of supervision in case of a failure or maintenance of the main system.

A natural and first consequence of implementing such a system would be the establishment of a centre to coordinate activities of individual components of the Polish Navy. Its duties would include directing sufficient forces and resources to events that affect the security of Polish sea areas. Such a centre would have to be financed jointly by government administration authorities, whose competences include duties of organizations that create the network of the maritime administration in a broad sense.

Changes to the Polish Navy organization

Another step should be an organizational change of the Polish Navy, involving the separation from its structures of the Coast Guard. An element that can be transferred into the Coast Guard fastest is the present Border Guard with its Maritime Branch located in Gdańsk.

The Maritime Branch of the Border Guard is an organizational unit within the structures of the Border Guard, which is a part of the Ministry of Internal Affairs and Administration. Applicable regulations authorise commanders of watercraft operated by the Maritime Branch of the Border Guard to take actions on Polish sea areas listed in the Act on the Border Guard of 12 October 1990 (Journal of Laws No 78, Item 462, as amended) with respect to sea-going vessels. Such authorizations include also duties within maritime security.

Amendments to laws

At this stage of the analysis, however, a legislative problem occurs related to competences of the Border Guard with regard to reactions to actual hazards related to the security of critical infrastructure on Polish sea areas. According to art. 1(2)(1) of the Act of 12 October 1990 on the Border Guard, its tasks include the protection of state border on land and at sea. In addition, in section 10 of this regulation the legislator has mentioned as a task of the Border Guard the supervision over the exploitation of Polish sea areas and compliance with regulations applicable in such areas by ships. Powers of this service have been determined in two legal acts.

The first law is the above-mentioned Act on the Border Guard. According to art. 14(1), if necessary for state defence or integrity of state border, commanders of watercraft of the Border Guard on internal territorial waters and territorial sea have the right to:

• 1) call a ship to reduce its speed, stop for control and follow an indicated course;
• 2) stop a ship, check documents of a vessel and cargo, require identification of crew and passengers, inspect cargo and search rooms of the ship and detain a person suspected of a crime;
• 3) force a ship to enter an indicated port, if a captain does not follow received instructions.
• On the other hand, section 2 gives commanders of watercraft of the Border Guard the right to take actions mentioned in section 1 also if a ship on internal sea waters or territorial sea:
• 1) embarks or disembarks people against applicable regulations;
• 2) loads or discharges cargo outside a designed site;
• 3) leaves a port without a border inspection;
• 4) makes a contact with coast for criminal purposes;
• 5) fishes or exploits water or seabed otherwise against applicable regulations;
• 6) enters a closed zone or a zone that is hazardous for navigation or fishery;
• 7) anchors outside a designated site;
• 8) violates regulations on security of navigation and transport; or
• 9) violates sanitary or environmental protection regulations.

In addition, section 3 of the regulation extends powers of a commander of watercraft of the Border Guard, however only to a certain extent, to the exclusive economic zone. According to this regulation, the authorizations mentioned in section 1 apply also when fulfilling tasks within the protection of rights of the Republic of Poland in its exclusive economic zone, whose status and scope are determined in other regulations and international agreements.

It remains a mystery what the intention of the legislator was when he used a term ‘commander of watercraft of the Border Guard’, because this unfortunate narrowing of powers to only this specific member of crew makes the daily service of an officer of this service quite troublesome. As indicated in the analysis of the above-mentioned regulations, the scope of competences of the Border Guard does not cover the sea area in which projects of Polish OWFs are planned or with already existing critical infrastructure facilities.

According to the authors, a simple legislative step would be to add the following provision in art. 14(3) of the Act on the Border Guard: ‘… within the protection of rights of the Republic of Poland and in case set forth in section 2(6) in its exclusive economic zone as well as in a contiguous zone…’. Why should this be limited to this case? The introduction of the proposal presented by the authors in art. 14(3) of the Act on the Border Guard would clear up any doubts about exceeding powers by the Border Guard officers.

Another legal act that governs the scope of powers of the Border Guard officers on watercraft of this agency is the Act of 21 March 1991 on sea areas of the Republic of Poland and maritime administration. According to art. 50(5), if an inspector of maritime inspection is not present on-board a watercraft of the Border Guard, Border Guard officers may exercise the following powers by themselves:

• a) controlling if vessels are entitled to carry out their activity and if they have required permits,
• b) controlling if navigation or another activity is performed according to Polish laws and international agreements,
• c) detecting maritime environment pollutions due to activity at sea and their perpetrators,
• d) controlling if ships fulfil requirements within the security of navigation,
• e) controlling if a carrier, a terminal operator or a ticket seller, in the meaning of Regulation No 117/2010, fulfil duties set forth in Regulation 117/2010 on behalf of a local authority of maritime administration.

In this regulation one can hardly find the authorization to react in case of hazard to the operation of critical infrastructure on Polish sea areas.

Why is the Coast Guard so needed in Poland?

There are numerous arguments in favour of creating the Polish Coast Guard. In face of the planned investments in the Polish Offshore Wind Power Sector, there should be no doubts that establishing such a service in Poland is a top priority.

First, existing solutions in other countries should be pointed to. An excellent example is the U.S. Coast Guard, which is presently a main federal agency responsible for security at sea and environmental protection in ports and waterways in the US. One of the main legal acts that sets forth duties of the U.S. Coast Guard is the National Security Act from 2002, and more specificity section 888 of this legal act, which is named ‘Preserving Coast Guard mission performance’. This section includes tasks of the Coast Guard, divided into non-homeland security missions and homeland security missions.

The non-homeland security missions include, according to the Act: maritime security, search and rescue, assistance in navigation, live maritime resources (enforcing fishery laws), maritime environment protection, and air-related activities. On the other hand, the Act lists the following homeland security missions: security of ports, waterways and coast, fighting against drug trafficking, fighting against illegal migration, defence readiness, other situations used to enforce applicable law.

If we add powers of USCG that result from the Coast Guard Authorization Act of 2010, which says that members of the Coast Guard, while performing their duties, may carry firearms and carry out detentions without an order for any crime against the United States committed in their presence and seize property in another manner provided for by law, we can see that the powers of USCG are broad.

Another argument in favour of creating the Polish Coast Guard is the above-mentioned fragmentation of competences of the Polish Navy. The authors are positive that a single service should be established in the near future, similar to Finnish Rajavartiolaitos, Swedish Kustbevakningen or Dutch Kustwacht.

In the present Polish legal system, the fastest and most probable would the introduction of the Dutch model, where Kustwacht has 15 main tasks that result from competences of 6 ministers:

• Infrastructure and Water Economy
• National Defence
• Justice and Security
• Finance
• Economy and Climate Policy
• Agriculture and Quality of Environment and Food

The above-mentioned ministries jointly finance operations of Kustwacht and in the authors’ opinion this model can be copied, certainly after suitable implementation into the Polish legal system.

Summary

Summing up, this article presents essential legal gaps in providing the adequate level of security of critical infrastructure on sea areas subject to the jurisdiction of the Republic of Poland.

According to the authors, ‘healing’ of this system should be as follows:

1) First, conferring adequate competences to the Border Guard as soon as possible, because time counts against us.

2) The second step should be the establishment of an operational coordination centre for individual organizational units included in the Polish Navy. This action should be correlated with the harmonization of the monitoring system of sea areas.

3) The last stage is the establishment of a uniform formation that would collect fragmented tasks of the present maritime administration, similarly to the Dutch model.

Mateusz Romowicz – Legal Advisor
Przemysław Niewiński – Lawyer