Published on September 7, 2023

Decoding article 48: limiting access to information in Poland’s green investment funding

European funds play a crucial role in financing green investments in Poland. Although the country is currently ineligible to receive funds under the Recovery and Resilience Facility (RRF) due to concerns over the rule of law, ultimately it is more than likely Poland will receive the substantial sum of EUR 140 billion through various EU-funded instruments. Given the magnitude of the allocation, it’s imperative that the Polish Government ensures these funds are distributed transparently. But unfortunately, it’s doing the opposite.

Poland’s 2021-2027 Implementation Act outlines the laws and procedures for governing the allocation of EU funds, including the Cohesion Fund and the Just Transition Fund. Ensuring transparency in the distribution of these funds is a requirement that has been repeatedly emphasised by the European Commission and the European Council. Regrettably, the Implementation Act contains a critical provision that undermines this requirement: Article 48.

Comprising two sections, Article 48 effectively excludes transparency throughout the project application and verification process. It imposes restrictions on the Act on Access to Public Information and the Act on Public Access to Environmental Information, even in the early stages of the investment process. This effectively deprives citizens of the most important existing tools for social oversight in the Polish legal system. While access to the applicant’s documentation is entirely excluded, materials prepared by managing authorities can only be accessed after the assessment phase. Consequently, there is no control over how European funds are disbursed prior to application and project assessment.

Article 48 closely resembles provisions contained in regulations from previous funding periods. A notable example is the Polish 2014-2020 Implementation Act, which regulated the disbursement of European funds for the preceding period. Although both acts limit transparency, the one for the current funding period (2021-2027) imposes stricter limitations on access to information.

The justification for introducing these limitations, as put forward by the Act’s authors when it was presented in the Polish parliament, is to prevent plagiarism of content across project applications. However, the legislation fails to recognise that the very imposition of these restrictions prevents the disclosure of potential malpractice, corruption and, paradoxically, plagiarism.

Additionally, concerns have also been raised about the legality and compliance of these regulations with binding international agreements. Various non-governmental organisations, including Client Earth, the Polish Green Network and Watchdog Poland, contend that Article 48 contravenes the following treaties: Articles 31 and 61 of the Polish Constitution; the Aarhus Convention (ratified by Poland), which prioritises access to information, public participation in decision-making and access to justice in environmental matters; and Directive 2003/4/EC of the European Parliament and Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC.

It should be noted that restrictions are in fact already contained within the Polish Act on Public Access to Environmental Information. In the first instance, project proposals must be compliant with Polish and European legislation, which outlines under what circumstances access to information can be restricted. In this context, introducing additional regulations that restrict access to project documentation is a pointless exercise, especially since the Implementation Act overlooks the Act on the Reuse of Public Information, which makes it partly possible to evade these limitations.

The only way that the processes of applying for and implementing projects can be fairly and reliably evaluated is to ensure full transparency at every stage. Excluding acts that hinder public oversight will only lead to other forms of malpractice. Limiting access to information, without specialised plagiarism detection tools, undermines the credibility of projects that get the green light. Retaining transparency improves the chances of identifying stolen content, including within plagiarized applications. Even citizens themselves could exercise this type of vigilance.

Although the Polish Senate attempted to remove Article 48 from the Implementation Act, the lower chamber of Parliament overruled the proposed amendment. The introduction of these restrictions is also at odds with the European Council’s conclusions on the 2030 Climate and Energy Framework, which calls for improved transparency in the management of European funds. Following the adoption of the Act, Polish experts and activists alerted the Commission (on multiple occasions) to the likely violations of EU legislation. To date, however, no legal action against Poland has been taken.

One effective solution to combat plagiarism would be to establish a database of applications and existing projects that can be accessed by the public. Such a tool would ideally comprise a well-designed search engine featuring applicant names, entities applying for funds, and other helpful details. There are similar search engines that serve as a useful model for this type of initiative.

In a worrying development, Article 48 has already been invoked by the managing authority of the EU Funds for Wielkopolska 2021-2027 regional programme, effectively barring access to all project information. The case involves a hydrological project in Eastern Wielkopolska slated to receive funding on a non-competitive basis. Miłosława Stępień, just transition coordinator at CEE Bankwatch and member of the monitoring committee for Wielkopolska, requested information about whether an environmental impact assessment of the project was planned.

Given that the project is to be financed through the Just Transition Fund and implemented by the national water management holding Polish Waters, a state institution, there is no danger of the project being plagiarised. The aim of the project is to redirect water from the Warta River into various bodies of water (lakes, streams, former mining pits) in the region, which has suffered from declining water levels due to the impacts of open-pit mining and drought caused by climate change. Stępień was informed that, according to Article 48 of the Implementation Act, details provided by the applicant about the project prior to approval would not be made available. While it seems obvious that an environmental impact assessment should be obligatory in the case of a project that clearly changes the water regime in the area, access to this document will probably be limited even for the members of EU funds monitoring committees, at least until the project has been approved for funding. This obviously makes it impossible to monitor the potential environmental impact of the project or to react to any threats at an early stage of the implementation process.

European funds aimed at driving energy transformation have considerable potential to enhance transparency. However, in Poland, this potential has been stifled from the very start and is very likely to continue. One of the few institutions that bear responsibility for the fair and reliable verification of project applications are the monitoring committees. Given that the members of these committees are being told they cannot access information as a result of Article 48, it seems entirely probable that even these bodies will struggle to make sure that the allocation of almost EUR 140 billion remains transparent, that is, unless pro-active measures are taken to counteract its use.