IBV: Watershed for the European Commission

When I said, about two months ago, that the IBV case meant a watershed for renewal energies in Spain, my thoughts were both with our procedures in Spain and with our complaints filled in Brussels. 

On Thursday of last week, the 5th of December of 2013, Daniel Pérez and  I met, together with other lawyers from Latvia and Greece, with the legal cell of the European Commissioner of DG Energy Günther Oettinger (also with legal counselors of the DG Competition and DG Taxation) in Brussels. 

The previous meeting with this cell was the 15th of July of 2013, as a follow up of the meeting we had with the Commissioner himself in his temporary office in Strasbourg the 12th of June of 2013. In this last meeting the Commissioner lamented that he did not consider the policies established by our minister Soria appropriate, but lacked legal tools to act against these. When I assured him that this was not so, he said that he did not know how to respond and told us to keep a technical meeting with his legal cell to determine whether or not he had a legal instrument. At this meeting of July 15, the legal cell of Oettinger plainly rejected our reading on the issue, which was and still is that the principles of European law also apply to the measures supporting renewables, either generally or through a functional reading of Article 13 of the Directive 28/2009/CE of renewables. After this, the judgment in the case IBV was published the 26th of September. As explained in another  post, the IBV judgment, in its paragraph 49 postulates in a way that leaves no doubt that our reading is the correct interpretation.

“49 It follows that, where, as in the case in the main proceedings, a Member State adopts measures of support for cogeneration and renewable energy sources within a framework such as that laid down, first, by Directive 2004/8, in particular Article 7, and, secondly, by Directive 2001/77, in particular Article 4, and thus implements European Union law, it must observe the principle of equal treatment and non-discrimination laid down in particular in Articles 20 and 21 of the Charter (see, to that effect, Case C 401/11 Soukupová [2013] ECR I 0000, paragraph 28).”

Well, with this brief introduction we have set the tone and the right key to explain what the result of our last meeting was: Commissioner Oettinger's attorneys have had to admit that after IBV case there is no way in rejecting our interpretation in this issue of European Law. We take this opportunity to congratulate them on this new legal instrument, and we have also urged them to forward our congratulations to Commissioner Oettinger. His legal cell has now asked for advice to the general legal services of the European Commission on the impact of IBV as an instrument to rate support schemes of hte Member States of the European Union and of course, on the amendments thereof. We will have a follow up meeting with the European Commission before Christmas to shape the monitoring of various complaints that we have raised on behalf of the Platform for a New Energy Model, in collaboration with the Renewable Energy Foundation, also receiving valuable inputs from APPA .

This monitoring has also relevance at a national level, considering that a few days before visiting Brussels we received the sentence of the National High Court of Spain in our indirect challenge to RDL14/2010 through the Circular 3/2011 of the already extinct National Commission of Energy. We had also sent the IBV case to the National High Court a few days before the deadline to sentence judgment. And although the National High Court says that it would have to be done even without IBV, they have applied the European Law according IBV case. Still we have to start an appeal against this judgment for its erroneous interpretation on this application without referring for a preliminary ruling to the Court of Justice of the European Union mandatory in the circumstances of the case, but the mere circumstance of the application itself is already a major achievement for the defense against the RDL14/2010 in particular and for renewable energies in general.

The relevance is in the course of the national proceeding under the Supreme Court, who will consider the appeal against the judgment under the National High Court: if the Supreme Court decides to follow the interpretation of European law adopted by the National High Court, it would be obliged to refer for a preliminary ruling to the Court of Justice of the European Union. On the way to this court located in Luxembourg we may see a convergence between the complaints brought before the European Commission and our litigation on national level. We will keep you posted on this issue.

Besides our technical meeting we also discussed the meetings with the 12 European utilities, Spanish pool price and Oettinger’s meeting with Soria. It seems that the perception of this meeting has not been the same for both. This week I wrote an article on this meeting in the online magazine Energías Renovables with the title " Oettinger and Soria: search ten differences."