Hard talk in Brussels

Last week I wrote an open letter to Mr. Timmermans, concerning the precarious legal situation of the Renewable Energy sector in Spain. This week we supply some background information for all stakeholders in this debacle.

In the first place there are European Union citizens who decided to take serious the calls done by the Spanish Governments at the time to invest their time, efforts and of course savings in reverting climate change. The Spanish Government did such calls following its obligations stemming from the Directive 2009/28/EC, and that is why EU is applicable here. We defend approximately 2000 individual citizens and companies before various Spanish courts, in a dozen different dossiers, as collective and individual actions.

The earliest cutbacks stem from 2010, then it was mostly photovoltaic (PV) energy that got bashed, but since then the range of affected technologies has widened. We now represent PV, Wind, Small Hydro, Cogeneration, Concentrated Solar and Biomass. The installations owned by our clients are totaling to almost 1000MW. We also represent the national renewable energy association APPA before the Supreme Court, as well as AEOLICAN, the Canarian wind energy association, and ACER, the Canarian renewable energy association.

We coordinate and cooperate with the legal working groups of APPA and UNEF (The Spanish PV Federation), of which we are a member, and these associations join our efforts before the European Institutions. We also coordinate periodically with a legal forum organized by ANPIER, the Spanish association of small PV owners. We are also supporting members of APREAN (Andalusian Renewable Energy Association) and EWEA (European Wind Energy Association).

Our latest appeals against the Royal Decree 413/2014 and Ministerial Order IET/1045/2014 have been the first to be admitted at the Supreme Court in Spain, many other followed, however. Being the first in line is relevant at the hour of assignment of “priority and witness” trials, meaning that the large amount of procedures subsequent to the first in line will be “parked” pending resolution of the priority cases. We have done this on purpose to be determinant in the outcome of this litigation.

It is of utmost importance that the new Commissioner-designate First Vice-President Frans Timmermans for Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights personally insists in the Rule of Law in our dossiers. In this light I transcribe the following section from the Mission Statement drafted for him by the President-elect of the new European Commission, Mr. Claude Juncker:

To empower them to deliver on their priority projects, the Vice-Presidents will act on my behalf and will help exercise my rights and prerogatives in their area of responsibility. In particular, the Vice-Presidents will be in charge of:

• Steering and coordinating work in their area of responsibility. This will involve bringing together several Commissioners and different parts of the Commission to shape coherent policies and deliver results.

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• Managing and organising the representation of the Commission in their area of responsibility in the European Parliament, the Council, national Parliaments and other institutional settings as well as at international level.

• Promoting a proactive and coordinated approach to the follow-up, implementation, and communication of our priority policies across the Union and internationally.

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During our mandate, I would like you to focus on the following, in your role as Vice-President:

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• Coordinating the Commission’s work related to the Rule of Law

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Up until today the current Commissioner for Energy, Mr. Günther Oettinger has failed to properly address the issues we brought to his attention, it is for that reason that the Petitions Committee of the European Parliament has admitted our petition, relaying it to the Environment Committee. Through his work with the European Parliament and by steering the new Energy Commissioner we expect Mr. Timmermans to make a point of the Rule of Law, and not just use it as an adornment of political priorities.

We stress once again that we do not need anybody in Brussels to solve our problems on a substantial law level, but on a Rule of Law level. We need to unblock our legitimate access to the Court of Justice of the European Union (CJEU) in Luxembourg currently barred deliberately and purposefully by the Spanish government and the institutions within its direct control or sphere of influence.

The CJEU will decide as it may, but at any rate the dissonance between its recent rulings such as Alands or IBV and the Spanish Supreme Courts’ decisions point towards a resolution of the pending litigation in a line that protects the legitimate expectations and other fundamental rights of the defendants we represent.