From a technical and public interest point of view, the event seemed to us to be highly successful. Besides from the high-quality panelists and the introduction of Nissan’s new ‘Leaf’ model, the topics of discussion and moderation touched upon some of the most relevant issues present in the electric car debate. Of particular interest from our point of view, emphasis was placed on the role of the ‘Gestor de Carga’ (roughly translated as ‘Responsible person for charging’). This legal personality is required whenever a person wants to provide electric car recharging services to third persons, even where that recharging is provided for free. Amongst other things, becoming registered as a Gestor de Carga is time consuming, costly and entails onerous ongoing compliance requirements.

This issue is important because, as the panelists acknowledged, one of the key roadblocks to the development of the electric car in Spain is the relative lack of recharging points, especially ‘rapid’ chargers that allow for cars to be fully recharged within 10-15 minutes. The Gestor de Carga figure plays an important role in this roadblock. Although the panelists did not come to a final conclusion on the appropriate or likely future of the Gestor de Carga in Spain, it was encouraging to see the issue front-and-center in a debate of such importance.

Other points of interest included a consensus amongst all panelists on the need for the industry and stakeholders to present a common message. Central to this message needs to be not only a discussion on the environmental benefits of the electric car, but also the esthetic and performance advantages that the latest generation of electric cars can provide.

All in all, a very informative, sleek and entertaining event. We look forward to attending the fourth version next year and working with stakeholders throughout the electric car industry in the future to promote the electric vehicle not only in Spain, but in the whole of Europe.

It was a complex meeting dominated by highly technical content. We have found points of agreement with the General Directorate, above all with respect to the excessive complexity of the regulations relevant to the Spanish electrical sector and the lack of clarity in its costs structure. This latter point is what has resulted in the difficulties experienced in determining the appropriate remuneration for CTCs. The lack of clarity has also derived from the confusing process through which the CTC concept was created and modified.

We were able to reach a consensus with the Director General regarding the current points of difference that the Commission has with PX1NME, and we agreed that it will be necessary to provide further information: above all, with respect to the quantifying and ownership of CTCs, and consequentially the final magnitude of CTCs, which will ultimately determine the question of whether or not there has been an overpayment.

The Commission has invited us to provide further clarifications regarding these points and to continue in our work to untangle to electrical system in Spain. The Commission also emphasized the importance of organizations such as PX1NME regarding the provision of information to the Commission; if it weren’t for these entities, the Commission would not have a full picture of the situation given the high visibility of national administrations and established lobby groups.

We thanked the Commission for their invitation and work, and we have assured them that we will not cease until we have managed to clarify the opaque accounting used in the Spanish electrical system. At the same time, we emphasized the importance of undertaking a full audit of the electrical system, as was recommended previously by Commissioner Oettinger.

To this end HOLTROP S.L.P. has met with the Directorate General for Energy of the European Commission to inform about the current situation of the sector in Spain. The purpose of this complaint, the fifth from a series of six, for the time being, is to prompt the European Commission to start an infringement procedures against Spain, considering that Royal Decree-Law 9/2013, Law 24/2013 and Royal Decree 413/2014 clash with the Renewables Directive, the Emissions Directive, free movement of capitals and the principle of the protection of legitimate expectations.

This action complements several procedures started by HOLTROP S.L.P. before Spanish national courts, although invoking European law, for the more than 1500 producers they represent. In these proceedings, they ask for a preliminary ruling with the objective that the Court of Justice of the European Union decides whether cutbacks to renewables are in compliance with EU Law. A European Commission decision to start a procedure would render it very difficult for national courts to deny preliminary rulings. 

In the coming months, HOLTROP S.L.P. will return to Brussels for the Platform to complement this complaint with the Ministerial Order of Retributive Parameters to be approved soon, and follow up on the actions of the European Commission.

Contact: Daniel Pérez Rodríguez, 0034 618 60 77 69; Piet Holtrop 0034 637 05 21 35

The conference, which took place at Martins Hotel in Brussels, was divided into an opening speech, two discussion Panels and a closure. 

The opening speech was given by Mr. Javier Gracía Breva, one of the most remarkable experts in the Spanish renewable energies Sector. Mr. García Breva was very critical with the new Energy Reform of the Spanish Government, because he considered it lacks planning and it does not address the main problems of the Spanish electricity system, such as excess of installed capacity or the deficiencies of the wholesale market. 

At the first panel, representatives of several relevant organizations of the renewables sector presented their vision on how the 2030 Climate and Energy Framework should be drafted. The speakers were Mr. Marcel Bial, (ESTELA), Ms. Frauke Thies (EPIA), Mr. Petros Tsikouras (Green PV Federation), Mr. Dirk Vansintjan, president of RESCOOP, Mr. Enrique Guerrero, (Socialist MEP) and Ms. Cote Romero (spokesperson of the Spanish Platform for a New Energy Model). All speakers agreed that the proposed 27 % objective for renewables in 2030 is manifestly insufficient and that the current draft of the State Aid Guidelines for renewables is too restrictive, especially when it comes to the 1 MW maximum limit for benefiting from a support scheme. 

The second panel was devoted to analyzing the retrospective changes of the support schemes to renewables in different countries. The first speaker was Mr. Piet Holtrop, founding partner of the law firm hosting the conference, who presented the negative and retrospective changes renewables have suffered in Spain and elaborated on the strategy his firm will follow to legally challenge those changes. Mr. Holtrop also pointed out how the landmark IBV judgment (C-195/12) has led the European Commission to accept that the general principles of EU law apply when Member States adopt support schemes for renewables. Then, Mr. Sandis Bertaitis, Mr. Antonis Metaxas and Mr. Andrius Mamontovas explained the retrospective measures adopted in Latvia, Greece and Lithuania respectively in relation to renewable energies, whereas Jana Nysten and Josh Roberts offered a more pan-European vision in relation to support schemes to renewables.

The closure speech was carried out by Mr. Raul Romeva, green MEP, who highlighted out the energy model is related to the economy in general and also to democracy. 

There was general consensus among speakers in the fact that support schemes need to be dynamic, flexible and predictable, and that investor’s confidence has been greatly damaged by the introduction of retrospective changes. The speakers welcomed the European Commission Communication published in November on state intervention in renewable support schemes, but also called upon the Commission to be congruent with the content of the Communication and to act against States which do not comply with it, as the only way to avoid having a ripple effect of retrospective changes to renewables all along the EU.

Attorney-at-Law

FORT

Antonijas Street 8-4, Riga, Latvia

Mr. Piet Marco Holtrop

Attorney-at-Law

HOLTROP S.L.P.

C/Via Augusta 10, 3º, Barcelona, Spain

Mr. Antonis Metaxas

Attorney-at-Law

METAXAS & ASSOCIATES

Asklipiou Street 154, Athens, Greece

PRESS RELEASE

Six European Commission officials of DG Energy, DG Competition and DG Taxation and several attorneys representing renewable energy producers and associations from Greece, Latvia and Spain had a technical meeting on December 5th 2013. 

This meeting came after a common letter sent to the Commission by the attorneys Mr. Piet Holtrop, of Holtrop S.L.P, Mr. Sandis Bertaitis, of FORT and Mr. Antonis Metaxas, of Metaxas & Associates, in which they manifested their common concern for the cutbacks to renewable energies support schemes. During the meeting, the Commission recognized that the judgment of the Court of Justice of the EU in the case IBV represented a change in relation to its previous position towards the application of EU law to support schemes implemented by Member States. Hence, the Commission is currently studying the scope of the reevaluation.

Furthermore, DG Energy has officially asked the legal services of the Commission for the exact implications of the IBV Judgment and an answer is to be expected before the end of the year.

Following the reevaluation, the open complaints before the Commission in relation to States implementing support schemes might need to be reconsidered under the new criteria (CHAP (2012)03350, CHAP(2013)00737, CHAP(2013)01105, CHAP(2013)01125, CHAP (2013)00409, CHAP (2013)03350 and SA.36190 (2013/CP).

The attorneys will have a follow up with the Commission legal services to keep them informed on the outcome of the consultation to the legal services.

The document, prepared by Holtrop S.L.P. lawyers, is the fourth in a series of six complaints against Spain, which have been or will be presented this year, for breaches of various provisions of European law by  regulations governing the Spanish electricity sector (as well as energy sector in general).

Spain, due to the incorrect implementation of Directive 2009/72/EC, still allows the energy market to keep working in an oligopolistic way, what has an impact on consumers, who pay the most expensive energy in Europe. This has a very negative impact on Spanish economy and constitutes a breach of EU law, and in particular with regards to competition law and internal market rules.

Through this complaint, the Platform for a New Energy Model asks the Commission to start infringements proceedings against Spain for breaches of Directive 2009/72/CE for not granting the effective separation between energy generators, distributors and suppliers and breach of article 56 TFEU, together with Directive 2009/72/EC, for the existing restrictions for providers of electricity generation, distribution and supply services.

Moreover in the opinion of the Platform’s lawyers the lack of free competition in the electricity market would entail a breach of article 106 TFEU.

Finally the new unification of the Spanish regulators will not grant independence of the regulatory authority for the electricity market and is thus contrary to Directive 2009/72/CE.

In the case in which the Commission believes there may be a breach of EU law then it will start an infringement procedure, requiring member state to provide information within 10 weeks.

The Platform for a New Energy Model received yesterday a notification of the European Commission in which it was reported that the Commission had decided to open a proceeding against Spain for the establishment of an indirect tax on electricity generation that might be contrary to EU law.

The complaint, drafted by Holtrop SLP lawyers, is the second of a series of six complaints, three of which have already been presented, in which the Platform requests the European Commission to start an infringement proceeding against Spain, because its legislation in the energy sector, and in particular regarding renewables, is contrary to EU Law.

A representation of the Platform met with the legal services of the Commission last July in order to discuss in person the content of these complaints and, following the meeting, the Commission considered that the complaint against Law 15/2012 should be analyzed in details.

Spain will now have a period of 10 weeks to respond and if the Commission is not satisfied with the answer it can start an infringement procedure against Spain.

The complaint focuses on several provisions of Laws 15/2012 and 17/2012 which constitute a breach of the following European norms:

A)Article 3.2 of Directive 2009/28/EC, for endangering the achievement of the objectives of a 20% share of renewable energy in the Spanish energy mix by 2020;

B)Article 3.1 of Directive 2009/72/EC, due to a discrimination between electricity undertakings depending on whether they operate under the ordinary or special regime;

C)Article 13 and 16 of Directive 2009/28/EC, which forbid discrimination between technologies, as the 7% tax contained in Law 15/2012 implies a clear discrimination against those technologies for whom a feed-in tariff is more required;

D)Articles 107 and 108.3 TFEU, by failing to notify the Commission in advance what actually constitutes a reverse state aid to companies operating under the ordinary regime;

E)The principle of legitimate expectations, for applying a 7% retroactive cut to feed-in tariffs to investments made several years ago, as investors could not have reasonably foreseen such a drastic change in legislation;

F)The European strategy for clean and efficient vehicles, by making more difficult the development of electric cars in the EU, as long as Article 3.4 of Directive 2009/28/EC.

The Platform hopes that this decision of the Commission can influence the current proposals of Royal Decrees on renewables and self-consumption and hopefully lead to the total abrogation of Royal Decree Law 9/2013, a norm containing again retroactive cuts to renewable energies, highly questionable under EU Law.

Letter EC August 26th

On 14th June 2013 the Platform for a New Energy Model received, at the office of its pro bono law firm HOLTROP S.L.P., a notification from the Energy DG of the European Commission in relation to its complaints numbered CHAP(2013)00737, CHAP (2013)01105 and CHAP(2013)01125, whereby it was stated that the complaints require further examination by the legal services of the European Commission before deciding whether Spain may have breached EU law. The three complaints presented under the Platform’s name are directed against Spanish electric and procedural legislation, which might be contrary to EU law.

These complaints were also referred to at the letter given by a delegation of representatives of the Platform for a New Energy Model to Commissioner Oettinger, during a meeting that took place on Tuesday 11th June in Strasbourg. The meeting was intended at handing over to Mr. Oettinger more than 183.000 signatures collected by the Platform asking for a costs audit of the Spanish electric system.

The Platform also used the meeting with the Commissioner to let him know about its deep concern in relation to the cutbacks to renewable energies that have been approved and the ones that will probably be adopted in the weeks to come. Piet Holtrop informed the Commissioner that such retroactive cuts could be contrary to European Law, both to material norms, such as the Renewables Directive or the Energy Efficiency Directive, and to basic principle of European Law, like the no discrimination or the legal certainty principles. In that sense, the Spanish double obligation with regards to EU law was emphasized: on the one hand, the environmental objectives of European policy shall be respected and, on the other, EU law as a whole needs to be observed. The Commission, as the guardian of the Treaties, ensures that Member States do not violate the rights conferred by EU law upon its citizens. 

Answering to the Platform’s complaints, Commissioner Oettinger invited the lawyers of the Platform to participate at an in-depth examination with the legal services of the European Commission in the next three weeks in order to determine whether infringement proceedings against Spain are started. 

You can read the letter referred to in this press release here: 

Letter DG Energy June 14th 2013

Our appeal is based on the legal ground of retroactivity, since the cutback is effective from the 1st of January 2013 while the Royal Decree-Law 2/2013 actually entered into force on the 2nd of February. The infringement of EU law, in particular the Directive 2009/28/CE on the promotion of the use of energy from renewable sources and the established doctrine of the Tribunal of Justice of the European Union are the main grounds of law.

For more information: 

Piet Holtrop: info@holtropslp.com +34 93 5193393

The visit by the joint parties of the Platform for a New Energy Model and APPA has struck a chord with members of the  European Commission such as Niels Ladefoged (Member of Cabinet of Commissioner Hedegaard – Climate Action) who confirmed that he was very worried by the lack of plans and decision-making needed by Spain for them, beyond the inheritance received by previous governments, to be able to fulfill their commitments against climate change. 

For her part, Marie Donnelly (Director of Renewables of the European Commission) has also shown her deep preoccupation for the lack of a safety mechanism in place against the continuous expropriation to which many Spanish families who have invested their savings in renewable energy projects have been subjected.  J. Romakkaniemi (Cabinet of the European Commission), has also shown a deep concern about the potential economic impact from dismantling renewables in Spain and has asked the members of the Spanish delegation for more information with regard to this. 

APPA and the Platform for a New Energy Model also met with members of the Cabinet of the European Commission for Competition, who has confirmed that they are ready to study in great detail the complaints that the Platform has begun to process in favor of a new energy model.  

The work of the delegation was reinforced by multiple meetings held with different Parliament groups, such as the Social Democrats, represented by MEPs Teresa Riera, Andrés Perelló and Vicent Garcés; the Liberals, with MEP Izaskun Bilbao; the Greens, with Raúl Romeva, Claude Turmes, Rebecca Harms´ assistant and Vula Tsetsi (Secretary General); the group European United Left, with their consultant Elvira Hernández and José Criado, assistant to Willy Meyer, as well as the UPD, represented by Verónica Santamaría, assistant to Francisco Sosa Wagner. 

According to different members of the Spanish delegation, these meetings have solidified a frame of collaboration which will push measures in defense of a new energy model and the renewables sector. The delegation, which benefitted from the support of Som Energia, was advised and accompanied by the lawyers Holtrop S.L.P., who are members of, and volunteers for, the Platform.  

For more information: 

Piet Holtrop: info@holtropslp.com +34 93 519 33 93 

Jaume Margarit (APPA): http://www.appa.es/

Cote Romero (Plataforma por un Nuevo Modelo Energético): http://www.nuevomodeloenergetico.org

APPA and Px1NME will be in Brussels from the 8-9th of April 2013 for a series of meetings with notable members of the European Commission and Parliament in order to denounce the energy model that is being promoted in Spain, the relentless pursuit of renewable energies and the transposition of the energy saving and efficiency directives of the EU. With these measures, they are hoping to push the competent institutions towards rectifying Spanish politics regarding renewables, and take measures to ensure respect for EU Law in Spain.

The Platform for a New Energy Model held the first meetings with different institutions and European organizations in Brussels last December and filed a complaint before the European Commission. This complaint consists of five documents, three of which have already been forwarded to the legal service of the EC.

In these complaints, prepared by Holtrop S.L.P. (law firm belonging to the Platform and collaborating on a voluntary basis), the Commission was asked to pursue the procedure established in art. 258 TFEU (Treaty on the Functioning of the European Union), to bring Spain before the Court of Justice of the European Union (CJEU), because it is considered that its legislation in the energy sector entails a clear breach of EU law, mainly several provisions within the RES Directive (2009/28/EC), Directive 2009/72/CE, the TFEU, as well as the principle of legitimate expectations of the majority of RES investors in Spain.

At the same time a petition will be presented to the Committee on Petitions of the European parliament which focuses on the breach of Directive 2009/28/CE by the Spanish government. These two ways are now the only possibility Spanish investors have in order to bring their claims before the European Court of Justice as it is not possible for individuals, utilities or sector organizations to access directly to this court.

Since the meetings held in December the Spanish Government has approved two further cutbacks for RES electricity support schemes. The first was introduced by Law 15/2012 as a new tax on the gross revenues of the sale of electricity with a flat rate of 7% which applies to every installation of electricity generation independently from the date of its activation. Nevertheless it results in a discrimination against RES as the utilities operating with conventional energy sources can translate this cost to the final consumer, while RES producers do not have this possibility.

The second severe and again retroactive measure, established through Royal Decree-Law 2/2013 retroactively changed the yearly update of feed-in tariffs abandoning the Consumer Price Index for a new methodology resulting in a reduction in remuneration over time. 

During the meetings the Platform for a New Energy Model (as a collective of civil society comprised of more than 80 organizations including social collectives, environmental organizations, syndicates, business organizations and political parties) and APPA (as the umbrella of renewable energies associations in Spain) will discuss these last measures and the possible alternatives Spain could have to reduce its tariff deficit and permit the transition towards a new energy model. All this, without endangering, like it is currently doing, the RES sector which should be one of the most important engines for the economic recovery of Spain.

Pincha aquí para leer la versión en castellano 

For more information:

Piet Holtrop: info@holtropslp.com +34 93 519 33 93 

Jaume Margarit (APPA):

Cote Romero (Plataforma por un Nuevo Modelo Energético)