Transfer of environmental permit to acquirer of installation is not the rule

When a company has been issued an environmental permit, e.g. to release particles into the atmosphere, may it freely assign its rights under the permit?

No. This follows from the sovereign nature of decisions by administrative authorities and the general prohibition on transfer of rights and obligations under administrative decisions between private parties. Therefore, when acquiring an industrial installation or enterprise it is important to bear in mind the limitations on legal succession and the need to apply for transfer of a permit, or even sometimes to apply for a new permit. This procedure is applicable under the Polish Environmental Protection Law. Under the law, a party interested in acquiring title to an installation may file an application for transfer of the rights and obligations under permits for the installation. The transfer is made via an administrative decision, which is legally effective when the party obtains title to the installation or the designated part of the installation. If the party does not obtain title to the installation or designated part within one year after the transfer decision is issued, however, the decision expires. This procedure applies to permits for discharge of gases and particles into the atmosphere, certain Water Law permits, and permits for generation of waste.

Regulations concerning transfer of rights and obligations also apply to many other types of decisions related to exploitation of the environment, for which separate transfer procedures have been established—for example decisions on environmental conditions and decisions issued under waste regulations. If there are no regulations providing for the applicable procedure for transfer of rights and obligations under a specific decision, this generally means that the permit may not be transferred.

Dominik Wałkowski, Environmental Law practice, Wardyński & Partners

This text was published on 15 December 2011 in the “Commercial Law Academy” series in Dziennik Gazeta Prawna daily