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Offshore wind farms as critical infrastructure in the security system
Date of publication: 05.08.2021
In the two previous articles dealing with new investments in Polish maritime areas, related to the construction and exploitation of offshore wind farms, the issues related to maritime safety and lack of adequate regulations were raised.
This article focuses on subjects connected with the security of this investment and its legal status.
Regulations on the location of offshore wind farms in maritime areas
The regulations governing the maritime area, in which the Republic of Poland is entitled to execute the investments related to the construction of offshore wind farms should be analysed, when starting to consider the legal status of offshore wind farms and what is behind it.
Firstly, referred to Article 22(1) of the Act concerning the maritime areas of the Republic of Poland and maritime administration, the Republic of Poland shall have the exclusive right to construct, or to authorize and regulate the construction and utilization of artificial islands, installations and structures of any kind intended for the conduct if scientific research, exploration or exploitation of resources, as well as with reference to other undertakings in the field of economic exploration and exploitation of the exclusive economic zone, in particular the use of water, sea currents and wind for energy purposes. This is a positive premise defining the location of offshore wind farms.
Article 23(1)(a) indicates a negative premise, regarding the location of this type of investment. It states the prohibition of the construction and exploitation of offshore wind farms in the internal waters and territorial sea. Provisions of the Act concerning the maritime areas of the Republic of Poland and maritime administration, concerning the location of offshore wind farms, are a consequence of the standards contained in the United Nations Convention on the Law of the Sea, drawn up on 10 December 1982 in Montego Bay, Jamaica. Provisions of this convention, concerning, among others, offshore wind farms, say that the coastal state has the exclusive right to construct in the exclusive economic zone and to issue permits and regulations for the construction, operation and use of installations and structures intended for economic exploration and exploitation of the zone, such as the generation of energy through the use of water, currents and winds.
In the previous articles regarding to offshore wind farms in Polish maritime areas it was also indicated that due to the negative premise, included in Article 23(1) of the Act concerning the maritime areas of the Republic of Poland and maritime administration, as well as due to technical and exploitation conditions, the first offshore wind farms will be located in the adjacent zone. This maritime area was also clearly defined, both in our native Act concerning maritime areas of the Republic of Poland, as well as in the Montego Bay Convention. According to the provisions of the cited legal acts, the contiguous zone is a part of the exclusive economic zone, directly adjacent to the territorial sea, whose external border cannot extend further than 24 nautical miles (44.4 km) from the baseline from which the width of the territorial sea is measured. In the contiguous zone, Poland shall have the right to prevent the infringement on the territory of the Republic of Poland of Polish customs, fiscal, illegal immigration and sanitary regulations, and to prosecute, detain and punish the perpetrators of infringements of such regulations if they occurred on the land territory, internal sea waters or territorial sea of the Republic of Poland, or if the obligation to prosecute, detain and punish the perpetrators arises out of the law of the European Union or international agreements to which the Republic of Poland is a party.
Legal status of offshore wind farms
How will the legal status of offshore wind farms look like in the Polish legal system, taking into consideration the above-mentioned legal norms? In order to answer this question, one must look at the regulation included in the Article 22(1) of the Act concerning the maritime areas of the Republic of Poland and maritime administration, which states that the equipment intended for commercial exploitation of the exclusive economic zone for the purpose of energy use of water, sea currents and wind, is subject to Polish law. Analyzing this provision and bearing in mind the provisions of the Montego Bay Convention, we come to the conclusion that Poland has exclusive jurisdiction over offshore wind farms in Polish maritime areas, including jurisdiction to issue laws and other regulations in customs, fiscal, sanitary and immigration matters, as well as in security matters. However, it should be remembered that in accordance with the Law of the Sea Convention, such installations do not have the status of islands. They do not have their own territorial sea, and their presence does not affect the delimitation of the territorial sea or the exclusive economic zone of the Republic of Poland. Around offshore wind farms, the competent director of the maritime office may establish a safety zone, in accordance with Article 24 of the Act concerning the maritime areas of the Republic of Poland and maritime administration. The width of the zone was regulated in the quoted provision, which is the implementation to the Polish legal system of the provisions regarding the safety zone around, among others offshore wind farms, included in the Montego Bay Convention. Pursuant to these provisions, the width of the safety zone around a group of offshore wind turbines, constituting a wind farm, is 500 m from each point of their outer edge. A necessary condition is that the distance between individual windmills, constituting an offshore wind farm, does not exceed 1000 m. According to current norms, these distances, in case of Polish offshore wind farms, are between 400 - 640 m. Taking these reasons into account, the entire area located inside the offshore wind farm and within the distance of 500 m from the outer edges of the turbines, may be regarded as the safety zone. In this area the director of the maritime office determines the conditions of moving in the safety zone, and in particular may introduce restrictions on sailing, fishing, water sports, diving or underwater activities.
Taking into consideration the above-mentioned provisions, an obvious conclusion arises, that with regard to offshore wind farms, the Republic of Poland will enjoy immunity from jurisdiction and the regulations applicable to these installations will be the provisions of Polish law. In order to illustrate the importance of these provisions, let us analyze a simple case study, which illustrates what the provision on the immunity from jurisdiction of the Republic of Poland applies to offshore wind farms.
Let us analyze a situation, where the captain of the ship, despite the decision issued by the appropriate director of the maritime office and made public in accordance with the applicable regulations, establishing a safety zone around the offshore wind farm and limiting the sailing in its range, enters such zone. In such case he commits an administrative offence under Article 56(9) of the Act concerning the maritime areas of the Republic of Poland and maritime administration. The sanction for this offence is a fine of up to 20 times the average monthly salary in the national economy for the preceding year, as announced by the President of the Central Statistical Office. It is imposed by an administrative decision of the director of the maritime office. The construction and imperative character of this regulation does not leave the possibility for the authority competent to impose the aforementioned fine to waive from issuing a decision imposing a fine for the committed administrative tort. Therefore, it is sufficient to ascertain that a violation of the safety zone has been committed in order for a fine to be imposed on a person committing the above offence. The decision of the director of the office is limited to the amount of the fine, which takes into account the scope of the violation, repetition of the violation or financial benefit obtained from the violation. Such decision shall also be given the order of immediate enforceability.
The case gets more complicated, when the violation of the safety zone around the offshore wind farm in Polish maritime areas results in damaging or rendering inoperable the elements or the entire offshore wind farm. Here we deal with a criminal tort, in other words, the perpetrator commits a crime specified in the Criminal Code. According to the doctrine, a defect is a state, in which an element is deprived of its usable features, which makes its functioning on the line or network impossible or difficult. On the other hand, making an element unusable, consists in subjecting a component of an entire line or network to an action that does not damage its physical substance, but causes the element to no longer perform its function. Therefore, making an element of an offshore wind farm unusable will be for example degaussing or irradiating its components, which leads to disturbing its proper operation. Such actions amount to unlawful elements of the act specified in Article 254(a) in cumulative conflict with Article 288 and Article 294(1) of the Criminal Code and allow the court to sentence between 1 and 10 years of imprisonment.
Critical Infrastructure
Article 24 of the Act concerning the maritime areas of the Republic of Poland and maritime administration states the optional right of the director of the maritime office to establish around the offshore wind farms in Polish maritime areas. The wording "may" used in this provision does not impose an obligation to create such a safety zone, however, taking into consideration the nature of the offshore wind farm, there is a real need to issue a regulation in the future, which will establish around the offshore wind farms zones with a limited right to sail and other activities associated with economic or recreational use of those maritime areas.
The argument supporting this position is the fact that according to Article 3(2) of the Emergency Management Act of 26 April 2007, offshore wind farms will belong to the critical infrastructure as devices and installations included in the power supply system. Such services, according to the aforementioned act, are regarded as crucial for the security of the state and its citizens and for the efficient functioning of public administration bodies, as well as institutions and businesses.
The consequences of including offshore wind farms in Polish maritime areas in the critical infrastructure of the state are twofold.
Firstly, under the Emergency Management Act, the owner as well as the owner's and the owner's subsidiary are obliged to ensure adequate protection of critical infrastructure systems. This obligation is fulfilled in particular by preparing and implementing, in accordance with anticipated threats, plans for critical infrastructure protection and maintaining own reserve systems ensuring security and sustaining functioning of this infrastructure until it is fully restored. Offshore wind farms as critical infrastructure should be included in the Polish National Critical Infrastructure Protection Programme, adopted by the Polish Council of Ministers, which aims to create conditions for improving the security of such infrastructure.
According to the Polish National Critical Infrastructure Protection Programme, the competent minister in charge of State Assets, the competent minister fin charge of Energy and the competent minister in charge of Mineral Resources are responsible for the system for supplying energy, energy resources and fuels. Activities undertaken in the area of this responsibility consist, among other things, of assessing the risk of possible disruptions to system operations and periodic analyses with regard to their protection, cooperation with other bodies which, by virtue of legal acts, have authority over a given part of the system, supporting the organization of exercises and system training to improve the efficiency of system protection in organizational, technical, formal and legal terms, as well as agreeing on system protection plans, which results from Article 4 (1) item 2 of the Regulation of the Council of Ministers of 30 April 2010 on Critical Infrastructure Protection Plans. This executive act sets out in detail the manner of establishing, updating and structure of critical infrastructure protection plans developed by owners and possessors of independent and dependent critical infrastructure facilities, installations or equipment, as well as the conditions and procedure for recognizing the obligation to have a plan in place that meets the requirements of a critical infrastructure protection plan. At the same time, the responsibilities of ministers for individual critical infrastructure systems, shall be taken into account in the framework of the activities of subordinate or subordinate bodies.
A closer look at the Act on anti-terrorist actions of 10 June 2016 reveals the offshore wind farms as an element of the critical infrastructure of the State. It regulates, among other things, issues related to securing critical infrastructure in the context of preparing to take control of terrorist events.
In the event of a threat of an event of a terrorist nature or in the event of the occurrence of such an event, the Prime Minister, after consultation with the minister competent for internal affairs and the Head of the Internal Security Agency, may introduce one of the four alert levels:
• first alert level (ALFA level);
• second alert level (BRAVO level);
• third alert level (CHARLIE level);
• fourth alert level (DELTA level).
According to the provisions of the same Act, in the case of ordering at least the second alert level, i.e., a situation of an increased and foreseeable threat of a terrorist event without an identified specific target of an attack, an obligation is imposed on the police to check the security of critical infrastructure facilities, and in relation to selected of them, taking into account the type of threat, allows the Head of the Internal Security Agency, in agreement with the minister competent for internal affairs, to issue recommendations to the police for their specific security. In the Regulation of the President of the Council of Ministers on the scope of undertakings carried out in individual alert levels and CRP alert levels of 25 July 2016, which is an executive act to the same Act, issued on the basis of the statutory delegation contained in
Article 16(5) of the Act on anti-terrorist actions, we find a provision authorizing the Commander-in-Chief of Police, Commander in Chief of the Polish Border Guard or the Military Gendarmerie Commanding Officer to introduce the obligation to wear long weapons and bulletproof vests by uniformed officers or soldiers directly performing tasks related to securing places and objects that could potentially become the target of a terrorist event, in case when the at least the second alert level was introduced. It is not surprising, that due to the purpose of offshore wind farms combined with the extended response time of appropriate services responsible for national security, which is affected by the location of offshore wind farms in Polish maritime areas, these investments may become, after they are connected to the power grid of the Republic of Poland, the target of acts of a terrorist nature.
Summary
Looking at the legal regulations quoted in this article, both concerning the exclusive jurisdiction of the Republic of Poland over offshore wind farms and their legal status as a critical infrastructure in the security system, it is necessary to undertake legislative efforts by our legislator to adjust the regulations related to the law enforcement and ensuring an appropriate level of security to the new investment in Polish maritime areas, which are offshore wind farms. The realization of these goals can only be ensured by providing the appropriate services responsible for national security with adequate system tools that guarantee the efficient and safe functioning of these investments, which, as we know, will undoubtedly create an advantage for the Polish state in the diversification of the country's electricity sources. Unfortunately, the aforementioned services lack many legal and factual instruments to carry out the aforementioned tasks with respect to the offshore wind farms.
This article focuses on subjects connected with the security of this investment and its legal status.
Regulations on the location of offshore wind farms in maritime areas
The regulations governing the maritime area, in which the Republic of Poland is entitled to execute the investments related to the construction of offshore wind farms should be analysed, when starting to consider the legal status of offshore wind farms and what is behind it.
Firstly, referred to Article 22(1) of the Act concerning the maritime areas of the Republic of Poland and maritime administration, the Republic of Poland shall have the exclusive right to construct, or to authorize and regulate the construction and utilization of artificial islands, installations and structures of any kind intended for the conduct if scientific research, exploration or exploitation of resources, as well as with reference to other undertakings in the field of economic exploration and exploitation of the exclusive economic zone, in particular the use of water, sea currents and wind for energy purposes. This is a positive premise defining the location of offshore wind farms.
Article 23(1)(a) indicates a negative premise, regarding the location of this type of investment. It states the prohibition of the construction and exploitation of offshore wind farms in the internal waters and territorial sea. Provisions of the Act concerning the maritime areas of the Republic of Poland and maritime administration, concerning the location of offshore wind farms, are a consequence of the standards contained in the United Nations Convention on the Law of the Sea, drawn up on 10 December 1982 in Montego Bay, Jamaica. Provisions of this convention, concerning, among others, offshore wind farms, say that the coastal state has the exclusive right to construct in the exclusive economic zone and to issue permits and regulations for the construction, operation and use of installations and structures intended for economic exploration and exploitation of the zone, such as the generation of energy through the use of water, currents and winds.
In the previous articles regarding to offshore wind farms in Polish maritime areas it was also indicated that due to the negative premise, included in Article 23(1) of the Act concerning the maritime areas of the Republic of Poland and maritime administration, as well as due to technical and exploitation conditions, the first offshore wind farms will be located in the adjacent zone. This maritime area was also clearly defined, both in our native Act concerning maritime areas of the Republic of Poland, as well as in the Montego Bay Convention. According to the provisions of the cited legal acts, the contiguous zone is a part of the exclusive economic zone, directly adjacent to the territorial sea, whose external border cannot extend further than 24 nautical miles (44.4 km) from the baseline from which the width of the territorial sea is measured. In the contiguous zone, Poland shall have the right to prevent the infringement on the territory of the Republic of Poland of Polish customs, fiscal, illegal immigration and sanitary regulations, and to prosecute, detain and punish the perpetrators of infringements of such regulations if they occurred on the land territory, internal sea waters or territorial sea of the Republic of Poland, or if the obligation to prosecute, detain and punish the perpetrators arises out of the law of the European Union or international agreements to which the Republic of Poland is a party.
Legal status of offshore wind farms
How will the legal status of offshore wind farms look like in the Polish legal system, taking into consideration the above-mentioned legal norms? In order to answer this question, one must look at the regulation included in the Article 22(1) of the Act concerning the maritime areas of the Republic of Poland and maritime administration, which states that the equipment intended for commercial exploitation of the exclusive economic zone for the purpose of energy use of water, sea currents and wind, is subject to Polish law. Analyzing this provision and bearing in mind the provisions of the Montego Bay Convention, we come to the conclusion that Poland has exclusive jurisdiction over offshore wind farms in Polish maritime areas, including jurisdiction to issue laws and other regulations in customs, fiscal, sanitary and immigration matters, as well as in security matters. However, it should be remembered that in accordance with the Law of the Sea Convention, such installations do not have the status of islands. They do not have their own territorial sea, and their presence does not affect the delimitation of the territorial sea or the exclusive economic zone of the Republic of Poland. Around offshore wind farms, the competent director of the maritime office may establish a safety zone, in accordance with Article 24 of the Act concerning the maritime areas of the Republic of Poland and maritime administration. The width of the zone was regulated in the quoted provision, which is the implementation to the Polish legal system of the provisions regarding the safety zone around, among others offshore wind farms, included in the Montego Bay Convention. Pursuant to these provisions, the width of the safety zone around a group of offshore wind turbines, constituting a wind farm, is 500 m from each point of their outer edge. A necessary condition is that the distance between individual windmills, constituting an offshore wind farm, does not exceed 1000 m. According to current norms, these distances, in case of Polish offshore wind farms, are between 400 - 640 m. Taking these reasons into account, the entire area located inside the offshore wind farm and within the distance of 500 m from the outer edges of the turbines, may be regarded as the safety zone. In this area the director of the maritime office determines the conditions of moving in the safety zone, and in particular may introduce restrictions on sailing, fishing, water sports, diving or underwater activities.
Taking into consideration the above-mentioned provisions, an obvious conclusion arises, that with regard to offshore wind farms, the Republic of Poland will enjoy immunity from jurisdiction and the regulations applicable to these installations will be the provisions of Polish law. In order to illustrate the importance of these provisions, let us analyze a simple case study, which illustrates what the provision on the immunity from jurisdiction of the Republic of Poland applies to offshore wind farms.
Let us analyze a situation, where the captain of the ship, despite the decision issued by the appropriate director of the maritime office and made public in accordance with the applicable regulations, establishing a safety zone around the offshore wind farm and limiting the sailing in its range, enters such zone. In such case he commits an administrative offence under Article 56(9) of the Act concerning the maritime areas of the Republic of Poland and maritime administration. The sanction for this offence is a fine of up to 20 times the average monthly salary in the national economy for the preceding year, as announced by the President of the Central Statistical Office. It is imposed by an administrative decision of the director of the maritime office. The construction and imperative character of this regulation does not leave the possibility for the authority competent to impose the aforementioned fine to waive from issuing a decision imposing a fine for the committed administrative tort. Therefore, it is sufficient to ascertain that a violation of the safety zone has been committed in order for a fine to be imposed on a person committing the above offence. The decision of the director of the office is limited to the amount of the fine, which takes into account the scope of the violation, repetition of the violation or financial benefit obtained from the violation. Such decision shall also be given the order of immediate enforceability.
The case gets more complicated, when the violation of the safety zone around the offshore wind farm in Polish maritime areas results in damaging or rendering inoperable the elements or the entire offshore wind farm. Here we deal with a criminal tort, in other words, the perpetrator commits a crime specified in the Criminal Code. According to the doctrine, a defect is a state, in which an element is deprived of its usable features, which makes its functioning on the line or network impossible or difficult. On the other hand, making an element unusable, consists in subjecting a component of an entire line or network to an action that does not damage its physical substance, but causes the element to no longer perform its function. Therefore, making an element of an offshore wind farm unusable will be for example degaussing or irradiating its components, which leads to disturbing its proper operation. Such actions amount to unlawful elements of the act specified in Article 254(a) in cumulative conflict with Article 288 and Article 294(1) of the Criminal Code and allow the court to sentence between 1 and 10 years of imprisonment.
Critical Infrastructure
Article 24 of the Act concerning the maritime areas of the Republic of Poland and maritime administration states the optional right of the director of the maritime office to establish around the offshore wind farms in Polish maritime areas. The wording "may" used in this provision does not impose an obligation to create such a safety zone, however, taking into consideration the nature of the offshore wind farm, there is a real need to issue a regulation in the future, which will establish around the offshore wind farms zones with a limited right to sail and other activities associated with economic or recreational use of those maritime areas.
The argument supporting this position is the fact that according to Article 3(2) of the Emergency Management Act of 26 April 2007, offshore wind farms will belong to the critical infrastructure as devices and installations included in the power supply system. Such services, according to the aforementioned act, are regarded as crucial for the security of the state and its citizens and for the efficient functioning of public administration bodies, as well as institutions and businesses.
The consequences of including offshore wind farms in Polish maritime areas in the critical infrastructure of the state are twofold.
Firstly, under the Emergency Management Act, the owner as well as the owner's and the owner's subsidiary are obliged to ensure adequate protection of critical infrastructure systems. This obligation is fulfilled in particular by preparing and implementing, in accordance with anticipated threats, plans for critical infrastructure protection and maintaining own reserve systems ensuring security and sustaining functioning of this infrastructure until it is fully restored. Offshore wind farms as critical infrastructure should be included in the Polish National Critical Infrastructure Protection Programme, adopted by the Polish Council of Ministers, which aims to create conditions for improving the security of such infrastructure.
According to the Polish National Critical Infrastructure Protection Programme, the competent minister in charge of State Assets, the competent minister fin charge of Energy and the competent minister in charge of Mineral Resources are responsible for the system for supplying energy, energy resources and fuels. Activities undertaken in the area of this responsibility consist, among other things, of assessing the risk of possible disruptions to system operations and periodic analyses with regard to their protection, cooperation with other bodies which, by virtue of legal acts, have authority over a given part of the system, supporting the organization of exercises and system training to improve the efficiency of system protection in organizational, technical, formal and legal terms, as well as agreeing on system protection plans, which results from Article 4 (1) item 2 of the Regulation of the Council of Ministers of 30 April 2010 on Critical Infrastructure Protection Plans. This executive act sets out in detail the manner of establishing, updating and structure of critical infrastructure protection plans developed by owners and possessors of independent and dependent critical infrastructure facilities, installations or equipment, as well as the conditions and procedure for recognizing the obligation to have a plan in place that meets the requirements of a critical infrastructure protection plan. At the same time, the responsibilities of ministers for individual critical infrastructure systems, shall be taken into account in the framework of the activities of subordinate or subordinate bodies.
A closer look at the Act on anti-terrorist actions of 10 June 2016 reveals the offshore wind farms as an element of the critical infrastructure of the State. It regulates, among other things, issues related to securing critical infrastructure in the context of preparing to take control of terrorist events.
In the event of a threat of an event of a terrorist nature or in the event of the occurrence of such an event, the Prime Minister, after consultation with the minister competent for internal affairs and the Head of the Internal Security Agency, may introduce one of the four alert levels:
• first alert level (ALFA level);
• second alert level (BRAVO level);
• third alert level (CHARLIE level);
• fourth alert level (DELTA level).
According to the provisions of the same Act, in the case of ordering at least the second alert level, i.e., a situation of an increased and foreseeable threat of a terrorist event without an identified specific target of an attack, an obligation is imposed on the police to check the security of critical infrastructure facilities, and in relation to selected of them, taking into account the type of threat, allows the Head of the Internal Security Agency, in agreement with the minister competent for internal affairs, to issue recommendations to the police for their specific security. In the Regulation of the President of the Council of Ministers on the scope of undertakings carried out in individual alert levels and CRP alert levels of 25 July 2016, which is an executive act to the same Act, issued on the basis of the statutory delegation contained in
Article 16(5) of the Act on anti-terrorist actions, we find a provision authorizing the Commander-in-Chief of Police, Commander in Chief of the Polish Border Guard or the Military Gendarmerie Commanding Officer to introduce the obligation to wear long weapons and bulletproof vests by uniformed officers or soldiers directly performing tasks related to securing places and objects that could potentially become the target of a terrorist event, in case when the at least the second alert level was introduced. It is not surprising, that due to the purpose of offshore wind farms combined with the extended response time of appropriate services responsible for national security, which is affected by the location of offshore wind farms in Polish maritime areas, these investments may become, after they are connected to the power grid of the Republic of Poland, the target of acts of a terrorist nature.
Summary
Looking at the legal regulations quoted in this article, both concerning the exclusive jurisdiction of the Republic of Poland over offshore wind farms and their legal status as a critical infrastructure in the security system, it is necessary to undertake legislative efforts by our legislator to adjust the regulations related to the law enforcement and ensuring an appropriate level of security to the new investment in Polish maritime areas, which are offshore wind farms. The realization of these goals can only be ensured by providing the appropriate services responsible for national security with adequate system tools that guarantee the efficient and safe functioning of these investments, which, as we know, will undoubtedly create an advantage for the Polish state in the diversification of the country's electricity sources. Unfortunately, the aforementioned services lack many legal and factual instruments to carry out the aforementioned tasks with respect to the offshore wind farms.
Attorney-at-law - Mateusz Romowicz
Przemysław Niewiński - lawyer, consultant
Legal Counsel's Office
Legal Consulting-Mateusz Romowicz
kancelaria-gdynia.eu
prawo-korporacyjne.pl
www.kancelaria-odszkodowania.
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