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New shale gas regulations
On April 24, 2014 new shale gas regulations were presented to the Polish Parliament under governmental draft of the law amending the geological and mining law and some other laws (“Draft”).
The Draft includes the regulations on prospecting and exploitation of carbohydrates, including shale gas and oil. It retains majority of proposals, originally included in the previous drafts of the bill, but introduces also some innovations.
The National Operator of Energy Resources concept and its participation in every investment having concession was abandoned. Instead the Government decided to assign its competences to already existing mining and environmental institutions.
Having in regard one of the main purposes of the Draft, which is to simplify the bureaucracy in the administrative proceedings on prospecting and exploitation of the shale gas, three separate concessions shall be replaced by one join concession for prospecting, surveying and mining carbohydrates. The concession shall be awarded by tender for definite period of time, from 10 to maximum 30 years with possibility of its extension for two or maximum 5 years. The Draft provides also for possibility of mining before completion of prospection and surveys phase.
The temporary regulations of the Draft provide that concessions for prospecting and survey of carbohydrates, issued before the day of new law entering into force, shall be binding until the date of the expiration. The Draft provides however the possibility of converting the given concession, within two years from the day of new law entering into force, into new join concession or change of the existing concession with possibility of its extension up to three years.
The Draft introduces also some facilities in the construction phase of the shale gas mining process. It provides for possibility of construction of the structures for conducting prospection and survey of the carbohydrates upon declaration (no need of construction permit) Further facilities concern the obligation of obtaining the environmental decision. Under the Draft such decision would be obtained not until decision on initiation of drilling. The participation of the ecological associations in the administrative proceedings would be also limited to these which included in their statute activity the environment or nature protection, not later than one year before the administrative proceedings was started. The above amendment would cover not only the mining projects but all the investments requiring the environmental proceedings.
New rates of taxation for mining and proposal that until 2020 mining shall be free from new taxation, is another Draft’s solution that may support development of this field. Shale gas exploitation being innovating field of industry, requires stable and practical law regulations to assure efficient access of the investors to the business and its development.
The present progress of shale gas survey in Poland is too slow, therefore fast adoption of the new law (generally within 3 months from the law publication) is looked forward.
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.
Izabela Bartman is a legal associate in the firm`s Wrocław office. She graduated from Wrocław University, Faculty of Law, Administration and Economy, in 2002. She worked in the real estate broker’s agency where she gained experience in legal issues related to real estate. She also acquired experience working in IN CORPORE law firm in Wrocław. She speaks English.
contact: bartman@millercanfield.com
Katarzyna Komolibio is a legal associate in the firm’s Gdynia office. She graduated from Gdańsk University, Faculty of Law and Administration in 2014. She also studied law at Université Paul Verlaine in Metz, France. She worked in a law firm in 2014-2016, where she mainly gained experience in corporate governance and civil procedures. In 2016-2018 she worked as a tax consultant, concentrating on CIT. Katarzyna is fluent in English and also speaks French.
contact: komolibio@millercanfield.com
Michał Matak is a legal associate in the firm’s Warsaw office. In 2021 he graduated from the Faculty of Law and Administration of the University of Warsaw. In 2022 he began the attorney licensing program administered by the Warsaw Bar. He gained his professional experience, among others, in the legal department of the Energy Regulatory Office, the civil law team in the Office of the Commissioner for Human Rights and in Warsaw law firms.
In his professional work, he specializes in legal issues related to real estate, administrative proceedings and water law. He prepares legal opinions, draft contracts as well as due diligence reports – analysis of the legal status of real estate. Michał has extensive experience in obtaining public information, environmental information and certificates on the legal status of real estate from all kinds of state, local government and private institutions and offices. As a real estate lawyer, he has considerable experience and knowledge in the field of data analysis from real estate registers such as land and mortgage registers and land and building registers. He speaks English.
Privately, he combines the work of a lawyer with his musical interests. Michał plays the accordion and graduated from the first degree music school in the accordion class. He has also been Formula 1 racing enthusiast for many years.
contact: matak@millercanfield.com
Wojciech Babicki is a licensed attorney (adwokat) and the managing partner of Miller Canfield’s Polish offices and co-founder of the firm’s offices in Poland. He received his law degree from the University of Gdańsk in 1981, followed by the studies at the faculty of English. He speaks fluent English. Prior to joining the firm, Wojciech Babicki was a sole practitioner in Gdańsk. In 1989-90 he served as a legal advisor to the Solidarity Trade Union and its Economic Fund and Economic Foundation. He is a member of the Polish Bar Association for Northern Poland and he is also an arbitrator with the Commercial Court of Arbitration. Mr. Babicki focuses his professional practice on product liability issues, various matters relating to Polish commercial law and tax law, as well as to competition and labor law. He is the author of publications on theory of law.
contact: babicki@millercanfield.com
Dr. Andrzej Chełchowski is a licensed Polish legal advisor (radca prawny), partner and the managing director of the firm’s Warsaw office. He received his law degree in 1992, and subsequently a doctorate degree in legal science, from Warsaw University, where for 8 years parallel with his legal practice at Miller Canfield he also served as an adjunct professor. Andrzej Chełchowski specializes in real estate finance, development and investment issues, advising many Polish and foreign clients, including developers, commercial operators in their expansion, banks and other financial institutions as well as investors. Several times recommended as a real property legal expert by Best Lawyers and European Legal Experts and Legal Experts Europe, Middle East & Africa; author of a number of legal publications. Moreover, Dr. Andrzej Chełchowski provides legal advice on the ongoing restructuring of the health care sector, as well as on financing and structuring of various public infrastructure projects. He is fluent in English.
contact: chelchowski@millercanfield.com
Andrzej Czopski is a licensed legal advisor (radca prawny) and the partner and has been with Miller Canfield’s Gdynia office for over ten years. He graduated from Gdańsk University in 1992. He specializes in business and labor law, including legal issues related to the status of foreign nationals in Poland. Mr. Czopski has been involved in many foreign investment projects in Poland. Since 1998 Andrzej Czopski has collaborated with the American Bar Association (Section of Labor and Employment Law) and BNA Books, a law publishing house. He is the co-author of International Labor and Employment Laws, Volume II, published in the United States. Andrzej Czopski is fluent in English.
contact: czopski@millercanfield.com
Dr. Konrad B. Marciniuk is a licensed legal advisor (radca prawny) and partner in the firm’s Warsaw office. He received his law degree in 1994, and subsequently a doctorate in legal science, from Warsaw University. Since 1995 Mr. Marciniuk has been a lecturer of law at the University of Warsaw. He is experienced in property acquisition transactions, preparation and implementation of investment projects (land use planning, building regulations and environmental protection law issues) as well as property financing and commercialization schemes. During his legal career he participated in several hundred investment projects, including commercial (shopping centers, office buildings), housing, industrial (including a big power unit), warehouse-logistic and infrastructural buildings, health care and sports and recreational projects. His practice area covers financing investment projects on real property as well as preparation and execution of investment projects in the public–private partnership sector. He focuses his professional practice on property acquisition and shopping centre development schemes for a hyper- and supermarket leader in Poland. Mr Marciniuk has also advised major industrial developers on EPC contracts. He is also an expert on the European Union legal system and the ongoing harmonization of Polish law with that of the EU. Repeatedly recommended as a real property legal expert by European Legal 500. He is fluent in English and has conversational Russian.
contact: marciniuk@millercanfield.com
Richard A. Walawender is a principal of the firm and co-founder of the firm’s offices in Poland. He speaks Polish fluently and has extensive experience in public and private finance, commercial law, corporate governance and banking law. He is the head of the firm’s International Business Practice Group. While finishing his degree in Russian and East European Studies at the University of Michigan, Mr. Walawender attended Jagiellonian University in Kraków in 1981. When Solidarity came to power in Poland in 1989, Solidarity asked Mr. Walawender to advise the new government on establishing a bond program. He graduated from the University of Michigan Law School in 1986, and received his bachelor’s and post-graduate degrees from the University of Michigan, specializing in Eastern European Studies. Mr. Walawender frequently lectures on Polish business law topics and has served as a National Director of the Polish American Congress. He is also a member of the International Bar Association, the American Bar Association and the State Bar of Michigan, as well as serving on the supervisory boards of several Polish companies.
contact: walawender@millercanfield.com
Jacek Choromański is a licensed attorney (adwokat) in the firm’s Warsaw office. He graduated from the Warsaw University, Faculty of Law and Administration, in 2012. In the same year he also obtained a degree at the Centre for American Law Studies organized by Florida University, Levin College of Law. He also completed postgraduate studies regarding investment consultancy and capital markets at Cracow School of Business and studies regarding insolvency law at Łazarski University in Warsaw.
He specializes in real estate law, civil law, construction law, as well as in issues connected with development of the real properties and realization of the investments. Jacek Choromański is also interested in the issues connected with insolvency law, civil and administrative proceedings, and handles business and civil litigation. He is fluent in English.
contact: choromanski@millercanfield.com
Karolina Figura is a licensed legal advisor (radca prawny), resident director of the firm’s Wrocław office. She graduated from Wrocław University, Faculty of Law, Administration and Economy in 2006. She has broad experience in providing legal assistance to companies. She provides legal advice to Miller Canfield’s Polish and foreign clients in matters relating to their business activities, starting from establishing a company, through day-to-day legal support, and in case of winding-up – assistance in liquidation proceedings. Ms. Karolina Figura specializes in matters relating to business and civil law, including contract, labor as well as administrative law. She also represents clients in litigation proceedings before the common and administrative courts and arbitration panels. She is fluent in English, speaks also German.
contact: figura@millercanfield.com
Dr. Piotr Franczak graduated in law from the Faculty of Law and Administration of the University of Warsaw and, independently, in sociology from the Faculty of Philosophy and Sociology of the same University. After completion of the legal advisors training he was admitted to the bar. Piotr holds PhD in law from the Faculty of Law and Administration of the University of Warsaw.
He has been advising clients in various aspects of real estate law since 2007. During this time he has worked for both Polish and international law firms. Apart from native Polish, he is fluent in English and competent in French and German.
kontakt: franczak@millercanfield.com
Krzysztof Kałłaur is a licensed attorney (adwokat) in the firm’s Warsaw office. He graduated from Warsaw University, Faculty of Law and Administration in 2008. In 2009 he completed a course in English and European Union Law organized by the University of Cambridge in co-operation with Warsaw University. Krzysztof Kałłaur specializes in real estate and issues connected with property development and investments. In particular, he has extensive experience analyzing the legal status of the real properties (due diligence), preparation and negotiation of agreements concerning acquisition of the real properties, advising on legal aspects of real estate development, and supervising administrative proceedings regarding decisions requested in the construction process. Moreover, Krzysztof Kałłaur has extensive experience in advising and representing clients at all stages of civil and administrative court proceedings, in particular commercial and real estate disputes. Krzysztof Kałłaur also advises at pre-trial stage, in particular including conciliation and mediation proceedings. Krzysztof Kałłaur is fluent in English and speaks proficient French.
contact: kallaur@millercanfield.com
Dr. Andrzej Kiedrzyn is a licensed legal advisor (radca prawny) in the firm’s Warsaw office. He graduated from Jagiellonian University in Cracow in 1982. He obtained his doctorate degree in law at Jagiellonian University in 1990. From 1990-1991 Andrzej Kiedrzyn served as Vice-Consul at the Polish Consulate in New York and from 1991-1994 as First Secretary (consul) of the Consular Department at the Polish Embassy in Washington, D.C. From 1994-1995 he was a head of this department. In 1991, as a member of the Polish governmental delegation, he participated in the United Nations conference on settlements of international conflicts and the United Nations conference on Sea-Bed Organization. Andrzej Kiedrzyn specializes in international public and private law, administrative (environmental protection law) and civil law, litigation and carriage law issues. He is fluent in English.
contact: kiedrzyn@millercanfield.com
Anna Kowalczyk-Pogorzelska is a licensed legal advisor (radca prawny) in the firm’s Warsaw office. She graduated from Warsaw University in 1998. In the same year she completed the studies on English and European Law organized by the University of Cambridge. Anna Kowalczyk-Pogorzelska specializes in real estate, commercial and administration law. Her experience includes advising a variety of foreign and Polish investors on site acquisition and financing, lease of land and buildings, execution of other kinds of civil contracts as well as advising domestic and foreign banks, financial institutions and investors on establishing security for financial instruments on different stages of investment process. She also participated in the process of privatization of the state owned entities and assisted in several major due diligence projects within the privatization and mergers and acquisition transactions, with particular focus on real estate title check. Anna Kowalczyk-Pogorzelska is fluent in English and speaks good Spanish.
contact: kowalczyk@millercanfield.com
Wojciech Langowski is a licensed legal advisor (radca prawny) and the partner in the firm’s Warsaw office. He specializes primarily in real estate but his practice covers corporate and commercial matters as well. He was involved in several hundred diverse property related projects, including many quite unique and complex transactions, advising clients representing all types of participants of the real estate market. His practice focuses on acquisition and sale of real estates and real estate companies, including projects under construction or those that require restructuring, real estate development at all stages, financing of real estate projects, joint ventures, commercialization of shopping malls, office buildings and logistics centers, and also residential projects, as well as examination and commenting on legal issues relating to real estates and enterprises. Wojciech Langowski has practical knowledge of matters relating to day-to-day legal services rendered to large international companies, including also all types of contracts being concluded when conducting business operations. His extensive experience makes him well prepared to advise in various fields of law, where expertise in complex legal matters must go hand in hand with practical understanding of clients’ objectives and possible approaches to achieve them in the circumstances. Wojciech Langowski published on specific issues regarding real estate transactions and commercial law. He is fluent in English.
contact: langowski@millercanfield.com
Tomasz Milewski is a licensed legal advisor (radca prawny) in the firm’s Warsaw office. He graduated from Warsaw University, Faculty of Law and Administration, in 2003. In the academic year 2001/2002, as the European Union scholarship holder, Mr. Milewski studied at the Faculty of Law of the University of Gerona (Universitat de Girona, Spain). Tomasz Milewski specializes in real estate, construction, civil and administrative law. He is fluent in English and Spanish.
contact: milewski@millercanfield.com
Karolina Niemirska-Fido is a licensed legal advisor (radca prawny) in the firm’s Warsaw office. She graduated from Warsaw University in 1998. In 1997 she also completed a specialized program in French Graduate Studies on commercial law, in the French language, organized by the University of Poitiers. Karolina Niemirska-Fido specializes in all aspects of real estate and property law as well as commercial, bankruptcy and administrative law. Her key experience includes acquisitions and further stages of property investment process including construction and development in all types of property project, in particular commercial, residential and infrastructure. She has practical knowledge in restructuring, bankruptcy and reorganization proceedings. Karolina also possesses experience in the franchise and distribution sector. She is also involved in the development of hospitality sector through different models of hotel management. Karolina Niemirska-Fido is fluent in English and French.
contact: fido@millercanfield.com
Magdalena Olkiewicz-Borkowska is a licensed attorney (adwokat) in the firm’s Gdynia office. Magdalena conducted her studies at the University of Gdańsk under special supervision of Professor Władysław Rozwadowski. During her studies, she participated in the Seminar entitled “American English for Students of Law” at the YALE University, USA. She completed fall semester of LL.M. in International Intellectual Property Law under supervision of prof. G.B. Dinwoodie at Chicago-Kent College of Law, Illinois Technical University in Chicago, USA. In addition, she completed postgraduate studies in Intellectual Property Law at the University of Warsaw. She has obtained Certified Information Privacy Professional/Europe (CIPP/E) certification which confirms her expertise within the implementation and application of privacy rules in the organization. She is a member of International Association of Privacy Professionals. Magdalena is currently a PhD student at the Institute of Law Studies of the Polish Academy of Sciences (INP PAN) in Warsaw where she focuses her research on data privacy and fundamental rights’ issues in the EU context. Her professional practice covers the area of personal data protection, including international context, broadly understood law of new technologies, ePrivacy and unfair competition. She is fluent in English.
contact: olkiewicz@millercanfield.com
Magdalena Pilarska is a licensed attorney (adwokat) in the firm’s Gdynia office. She graduated from Gdańsk University, Faculty of Law and Administration, in 2005. In the same year she completed European Special Studies at the Technical University of Gdańsk, focusing on such issues as economic system and legal regulations of the European Union. She has obtained Certified Information Privacy Professional/Europe (CIPP/E) certification which confirms her expertise within the implementation and application of privacy rules in the organization. Her practice covers the area of personal data protection law, specifically within employment relationships and marketing activities. Magdalena Pilarska also advises clients on commercial companies law and civil law, including the consumer protection and product liability issues. In addition, Ms. Pilarska handles office space leases and business and civil litigation. She is fluent in English and also speaks Spanish.
contact: pilarska@millercanfield.com
Piotr Rusin is a licensed legal advisor (radca prawny) in the firm’s Warsaw office. He graduated with distinction from the Warsaw University, Faculty of Law and Administration, in 2007. In the same year he also obtained a degree at the Centre for American Law Studies organized by Florida University, Levin College of Law.
He specializes in real estate law (with a focus on financing investment projects), civil law, as well as in banking and financial law. In his practice Piotr Rusin also deals with the issues relating to corporate services for corporations, including various types of civil contracts. His extended experience includes advising Polish and foreign investors on every stage of the investment process (drawing up the structure of implementation of the projects, purchasing real estates, their financing and commercialization). Piotr Rusin also deals with various issues relating to banking law and financial law, advising banks and investors with regard to implementation of complex investment projects, including financing purchase of real estates, day-to-day servicing of financial structures, and the process of restructuring of the borrowers’ financial obligations. Mr. Rusin is fluent in English.
contact: rusin@millercanfield.com
Katarzyna Sasiak is a licensed attorney in the firm’s Warsaw office. She graduated from European School of Law and Administration, Faculty of Law, in 2007. In the academic year 2005/2006 she studied at the University of Nice – Sophia Antipolis in the Peace and Development Law Institute where she obtained master degree in European and International Law. Ms. Sasiak experience includes real estate (environmental protection law and construction law) and civil law as well as civil and administrative proceedings. She also represents clients in court proceedings. Among her interests are community law and energy law with emphasis on the renewable energy sources issues. She is fluent in English and has a very good command of French.
contact: sasiak@millercanfield.com
Olena Shtohryn is a Ukrainian attorney (admitted to the Ukrainian National Bar Association Kyiv Regional Bar Association in 2011), legal counselor and mediator. She is the founder and managing partner of Dictio Law Firm based in Kyiv. She received her law degree in 2007 from Ukrainian Academy of Banking of the National Bank of Ukraine and her Mediation Certificate from the Kyiv Mohyla Business School in 2019.
Olena specializes in real estate and construction as well as dispute resolution. She focuses on pre-trial settlement (including alternative methods) and litigation settlement of all disputes related to real estate and construction investments. Her practice area covers due diligence of real estate and unfinished construction projects for the purpose of their acquisition, restoration, reconstruction and completion. Olena also advises during the signing of real estate, investment and construction-related contracts, as well as on the application of city planning, land and land use legislation. Recently, she has dealt with changes in real estate and construction law in Ukraine during martial law.
Olena is a frequent speaker for the Confederation of Builders of Ukraine, for which she serves on the Board of Directors. She is fluent in English, Russian and Ukrainian.
contact: shtohryn.om@dictio.com.ua
Serhii Shtohryn is a Ukrainian attorney specializing in dispute resolution, debt restructuring and bankruptcy proceedings. His experience includes enforcement proceedings, forensic audits, white-collar criminal cases, debt restructuring and bankruptcy proceedings. He is a Partner at Dictio Law Firm in Kyiv, Ukraine.
Serhii is licensed as an insolvency practitioner by the Ministry of Justice of Ukraine and provides complete legal service in debt restructuring, bankruptcy, and insolvency matters. This includes:
- Pre-trial debt restructuring;
- Protecting the rights and interests of bankruptcy creditors, pledge lenders and post-bankruptcy creditors;
- Legal support to debtors and their officials in bankruptcy proceedings;
- Performing the functions of an administrator of estate, court-appointed administrator, liquidator, restructuring administrator and asset sale administrator.
Serhii is a graduate of the Academy of Advocacy of Ukraine and has a background with both the Ministry of Industrial Policy of Ukraine and leading Ukrainian law firms. He is fluent in English, Russian and Ukrainian.
contact: shtohryn.sv@dictio.com.ua
Grzegorz Żebrowski is a licensed attorney (adwokat) in the firm’s Gdynia office. He is a member of the Pomeranian Bar Association. Grzegorz graduated from the University of Gdańsk, Faculty of Law and Administration. Grzegorz has experience in matters relating to commercial, civil and labour law. In his professional career he provides day-to-day legal support to companies (including in particular registration procedures), court representation of clients in civil and commercial law cases, as well as legal advice in matters related to Community law.
He is fluent in English. He has been with Miller Canfield since 2014.
contact: zebrowski@millercanfield.com
Jacek Buss is a licensed attorney (adwokat), of counsel with the firm’s Gdynia office. He graduated from the University of Gdańsk, Faculty of Law and Administration, in 1992. In 1994 Jacek Buss completed a management training course administered by the US office affiliated with the National School of Public Administration. In the years 1992-1994 he completed the judge traineeship at the Regional Court in Gdańsk, passed the state judge exam and between 1994-1995 he served at the state court’s civil department. Jacek Buss also worked as a legal advisor (radca prawny) providing full-range of legal services to companies operating in maritime industry, telecommunication, banking or IT industry. Member of the Gdańsk Bar since 1999. Jacek Buss specializes in civil and administrative law, as well as in litigation. He has extensive practical experience in representing clients before courts. Jacek Buss is fluent in English.
contact: kontakt@millercanfield.com
New possibilities for renewable energy sources
New possibilities for renewable energy sources creates, adopted this week by the Polish Government, the draft of the law on renewable energy sources (“RES Law”).
The draft of the Ministry of Economy, consulted, reviewed and amended several times, was finally, on April 8, 014 adopted by Council of Ministers. The said Law, looked forward by RES market, is the answer of Poland, for EU expectations as for increasing the renewable energy share in the energy market, as set for all EU countries in the Directive 2009/28/EC of The European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (WE L 140.16 of June 5, 2009). The above directive was already partially implemented to the Polish law by virtue of new Energy Law as amended on July 26, 2013, entered into force on September 11, 2013, so called “ small energy triple package”, but the RES Law is the completion of the above directive in the field of the “green energy” requirements.
The main purpose of the RES Law was to distinguish and organize the support scheme for the renewable energy sources, by its separating of the present Energy Law, and additionally to work out new principles of such support based on the type of the renewable energy source, installed power as well as the starting date of its use or modernization.
The main but not the only solutions proposed in the new Law concentrate on the creation of new system of support for newly constructed renewable energy plants – the auction system, the simplification of the concession procedures as well as
possibilities of the energy production by prosumers (the “producing consumers”) for sale or for their own use.
The mechanisms supporting the production of the energy in the renewable sources installations, existing on the day of RES Law entering into force, would remain unchanged. Simultaneously producer of energy in the renewable energy plant would have the opportunity to make a choice between existing mechanisms of support and the new auction system. The latter, organized each year by the President of the Energy Regulatory Office would start binding from January 1, 2015. The auctions would be organized separately for the energy produced in the plants with the installed power up to 1MW and these with power over 1 MW. The detailed information on the auctions (i.e. the amount and the value of the energy that would be sold through auction as well as the maximum price for 1 MWh produced in the renewable energy source) would be determined in the separate regulations.
The relevant element of the RES Law is the promotion of prosumers energy production which includes the production of energy in the micro installations (up to 40 kW). Such activity would be possible after registration in the registry of producers with no need of concession. The surplus of the produced energy could be sold by prosumer to the energy grid operator for 80% of the energy market price.
The draft of RES Law, certainly still needs to be amended, however its adoption by the Polish Government, allows already commencing the parliamentary works and then (except for isolated provisions) its entering into force within 30 days from publication in the Polish official journal.
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.