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Work is nearing completion on a government amendment to the Civil Protection & Defence Act meant to close gaps in provisions on collective protection facilities

1. Introduction

A little more than a year ago, on 1 January 2025, a new piece of legislation titled “The Act of 5 December 2024 on Civil Protection and Civil Defence” (henceforth the Act) came into force, imposing obligations on public authorities and construction project owners to create and maintain so-called collective protection facilities (“CPF”), intended to protect the population against threats resulting from natural disasters, acts of terror, or military operations. CPFs are divided into protective structures (including shelters, i.e. enclosed and hermetic structures that protect against most threats, and hideouts, which are not hermetic and protect only against some potential threats) and places of emergency shelter (“PES”) i.e. structures (or parts thereof) that are not protective structures but are adapted to temporarily shelter people or protect them from certain threats.

While the Act became effective on 1 January 2025, the obligations imposed on project owners to comply with the requirements for protective structures and PES in designing and building new constructions of certain types, including public utility buildings, multi-family residential buildings with underground floors, or underground car parks, came into force (for the most part) on 1 January 2026. However, and as we pointed out in earlier articles, the adopted text contained some serious gaps and ambiguity that threatened to complicate or even paralyse implementation and compliance, thus exposing construction project owners to major risks (e.g. inability to determine the extent of their obligations under the Act and the associated costs, and consequently, inability to fulfill those obligations; or a significant slowing down of building permit approvals). Therefore, an urgent need arose to clarify and close these gaps.

Some of the issues have been addressed in the wide-ranging amendment to the Construction Law passed in December 2025 that we discussed last month. Others are to be tackled in an amendment to the Act itself (“Draft Amendment“), work on which seems to be coming to an end, and which is the subject of the present article.

The Draft Amendment also has other relevance to construction project owners: based on a realistic assessment of the country’s existing protective infrastructure network and its expansion possibilities in the coming years, it was decided that the network should be supplemented with a fourth, least technically advanced element, i.e. “shelter points”.

Nor is the Draft Amendment limited to issues concerning protective infrastructure; it introduces changes in many other areas of the Act, too. The considerable scope means that it is difficult to say with any precision when it will be adopted by the Sejm and pass through the remaining stages of the legislative process.

In what follows we discuss the most important changes proposed in the Draft Amendment concerning protective infrastructure.

2. Shelter points: a new component of protective infrastructure

The Draft Amendment introduces a new component of protective infrastructure – shelter   points (“SP”), defined as places useful for sheltering people temporarily, located in buildings or other places, capable of fulfilling the basic protective function against sudden dangerous weather phenomena and the effects of the use of conventional strike weapons, in particular shrapnel. Shelter points are not collective protection facilities, and are therefore distinct, both from protective structures (shelters and hideouts) and from PES. They do not have to be – and as a rule will not be – separate structures, but will be designated within lager structures, or even in places that are not structures. They have been conceived as the most informal element of the protective infrastructure, with the lowest protective parameters, therefore they do not have to meet any special technical requirements, merely to perform the simplest protective function, supplementing the available stock of protective infrastructure. SPs will not be designated by way of an administrative decision or ordinance, but merely “identified” by the locally competent municipal or district commander of the State Fire Service (PSP), in: (1) buildings in respect of which the procedure for recognition as a protective structure is still ongoing, (2) buildings or parts thereof that served as protective structures before the Act’s entry into force (i.e., those that do not meet the Act’s requirements for protective structures), (3) places were PES are planned to be organised, and (4) buildings or other places capable of fulfilling the basic protective function. The PSP commander will notify the relevant commune head/mayor/president and county governor as well as the owner/manager of the property about the SP identified there. The owner or manager of the property will be obliged to make the space available – as far as practically possible – to persons seeking protection from a threat, but only during the time of the threat, and in particular in the event of an alert, e.g. an air strike alert. In contrast to protective structures, there is no obligation to keep SPs properly equipped and ready at all times. The differences between SPs and PES include lower technical parameters and the fact that SPs will be permanently marked and potentially available, while PES are organised only in the event of a state of war or other threat.

3. Protective structures: filling gaps in the procedure to determine obligations

The Draft Amendment makes important additions regarding determination of project owners’ obligations when it comes to protective structures. Thus, under the Draft Amendment:

• the owner of a project consisting in the construction of a public utility building subject to the obligation to construct a protective structure notifies the locally competent commune head/mayor/president, i.e. the civil protection authority of the commune level, of their intention to carry out such a project, attaching to the notification the project’s documentation including its location and characteristics and containing, in particular, information on: (a) the size of the underground parts of the planned building, (b) the intended uses of the building, including the rooms or spaces in its underground part, and (c) the proposed technical solutions for the creation of a protective structure, or possibly for the organisation of a PES, in the building;
• the above-mentioned authority shall, within 14 days of receipt of such a notification, agree with the county governor and the voivod which of these three authorities is competent (due to the anticipated importance of the future protective structure) to recognise the planned building as a protective structure; and if such an agreement cannot be reached in time, the primary authority – i.e. the commune head/mayor/president – will be considered the competent authority;
• the competent authority thus identified determines the capacity of the planned protective structure and its resistance category (i.e. whether it is to be a shelter or a hideout, and of what category) taking into account the considerations mentioned in the Act (i.e. the number of people staying in the area where the planned building is to be located and the anticipated types of threats, as well as information on the size of the part of the planned building that may be used for protective purposes), by way of an order issued within 45 days of the above notification being made by the project owner, with the project owner allowed the right of appeal against such order, but not the right of complaint to an administrative court;
• if the competent authority fails to issue the above order within 3 months of receipt of the original notification, the project owner will be free to design a protective structure of any resistance category, and of any capacity but not less than 30 people, in the planned building.

Whilst the above provisions are definitely a step in the right direction in terms of removing some of the existing uncertainty, it should be noted that:

• it is not at all clear how the issuance of the above order on the protective structure’s resistance category and capacity relates to: (i) designation by the competent civil protection authority of a public utility building as one in which a protective structure should be constructed, referred to Article 93 of the Act and to be based on the criteria set out in the “Regulation of the Council of Ministers of 31 July 2025 on detailed conditions for designating public utility buildings as ones in which a protective structure has to be provided” (Journal of Laws, item 1070), or to (ii) derogation from the obligation to create a protective structure in such a building referred to in paragraph 2 of Article 93 of the Act; for if the authority competent to make relevant determinations is identified only just prior to the issuance of the order on resistance category and capacity, what about the more basic determination whether the obligation to construct a protective structure in the building exists at all?; in other words, it looks as if the competent authority were to make detailed determinations regarding resistance category and capacity before it is even determined – and the procedural form of such determination is still not known – whether or not the obligation to construct a protective structure exists at all;
• nor can the issuance of the order on resistance category and capacity be understood as synonymous with the recognition of the building as a protective structure referred to in Article 89 of the Act, as such recognition should have the legal form of an administrative decision issued by the competent authority pursuant to Article 88 of the Act (such decisions may also be issued for planned buildings), or an agreement concluded between the competent authority and the building’s owner or manager pursuant to Article 87 of the Act, which – as the Draft Amendment explicitly stipulates – may also be concluded for a planned building.

Therefore, although the solution proposed in the Draft Amendment is welcome in that it fills part of the legislative gap, thus reducing uncertainty, it by no means solves all the problems created by the current text of the Act, and does not remove all doubts. Recall that the amendment to the Construction Law passed in December imposed on project owners of planned buildings that are potentially subject to the obligation to provide a protective structure the requirement to file a statement together with their building permit application in which they have to declare, under pain of criminal liability, whether the obligation to construct a protective structure in the building exists.

4. PES: exemptions, capacity determination, derogations, and alternative solutions

The Draft Amendment contains several completely new provisions regarding determination of the existence,  the scope, and fulfilment of the obligation to ensure the possibility of organising PES in the underground floors of those public utility buildings in which the creation of protective structures is not required, as well as in the underground floors of multi-family residential buildings and in underground car parks (Article 94 of the Act).

Thus, under the Draft Amendment, the obligation to meet the requirements for PES will not apply where:

• the number of residential units does not exceed 4; or
• the total usable area intended for public utility use does not exceed 250 m²; or
• the net area of the planned underground car park does not exceed 75 m².

Where the above exclusions do not apply, the Draft Amendment states that the capacity of the mandatory PES (i.e. the number of people who will be able to use it, which has implications for its area and some other parameters) should not be less than the number of people equal to:

• the total usable area of residential units divided by the ratio of 20 m² per person – in the case of planned multi-family residential buildings; or
• the total usable area intended for public utility use divided by the ratio of 15 m² per person – in the case of public utility buildings; or
• twice the number of parking spaces for cars, unless a larger number follows from point 1) or point 2) above – in the case of underground car parks,

and should not exceed, in each of the above cases, 75% of the net area of the given underground floor or underground car park divided by a ratio of 1.5 m² per person (a stipulation introduced to address doubts raised in the public discussion around the Act as to whether the technical requirements for PES should cover the entire area of the underground floor each time).

Importantly, the above provisions applying to buildings intended for a particular use (public utility buildings or multi-family residential buildings) also apply to parts of buildings intended for this use. In other words, in the case of mixed-use buildings, the determination whether the obligation to meet the technical requirements for PES exists, and what capacity the PES should be, will be made based on the parameters of the part of the building intended for the relevant use.

The Draft Amendment also stipulates that where “local terrain conditions” (an unclear term – it is not known whether it refers strictly to physical conditions, or also for example to local planning conditions), and in particular the size of the building plot, make it impossible to organise a PES of the capacity determined in the above manner in the planned building, the voivod may, at the request of the project owner, consent to an underground floor or car park being designed and built that allows for a smaller-capacity PES to be organised. So it is possible to obtain a derogation from the above requirements for PES capacity.

Another provision of the Draft Amendment, with a wider scope of application, modelled on the institution of derogation from technical conditions set forth in Article 9 of the Construction Law, introduces the possibility of employing technical solutions for a PES different from those envisaged in the “Regulation of the Minister of Internal Affairs and Administration of 9 July 2025 on the conditions for organising, and on the requirements to be met by, places of emergency shelter” (Journal of Laws, item 932). Namely, it states that in justified cases, the technical conditions for PES may be met in a manner other than the one specified in the above executive regulation, provided that the alternative solutions proposed by the project owner ensure the fulfilment of relevant protective functions, and the voivod has consented to their use having obtained authorisation to do so from the Minister of Internal Affairs and Administration. In applying to the voivod for such a consent, the project owner should include an expert opinion testifying to the effectiveness of the proposed alternative solutions, issued by a person holding a valid builder’s license in the relevant specialty.

5. Final remarks

The above-discussed changes to the Act proposed in the Draft Amendment go much of the way to addressing the concerns brought up by project owners and architects. However, they do not solve all the problems raised by the Act’s incomplete and vague provisions, especially when it comes to the obligation to create protective structures (shelters and hideouts).