Retroactivity, timeframes

Last Friday (the previous post) we took a closer look on retro activity issues in recent Spanish Jurisprudence on Renewable Energy, with a focus on feed in tariffs. In this post we take a look on the time frame of legal action.

RDL14/2010 as such cannot yet be appealed against, at least not by private parties or civil society entities. For the following reason: In Spain a Royal Decree Law is of temporal nature, since according to article 86 of the Spanish Constitution the parliament still has to vote on its approval or disapproval. The parliament has to vote within 30 days of the coming into force of the Royal Decree Law. RDL14/2010 was approved by the government on the 23rd of December and published on the 24th of December (That's why it is referred to as the Grinch Law). Its 7th final disposition rules that it will enter into force the day after publication, which is the 25th of December. Thus the parliament will have to vote on RDL14/2010 before the 25th of January. The course of action to be taken now to inform the members of the Spanish parliament of the consequences and unfairness of this law, and hope that these people have more common sense than the Spanish Government. The only appeal which would be possible in this time lapse, would be an appeal against the constitutional legality of the RDL as such. The government of Navarra allegedly is pondering this possibility.

But, as Frank Lloyd Wright put it: Commons sense is no that common. If the parliament does not vote against approval of RDL14/2010, the next step would be to an indirect appeal against this piece of legislation. Strictly speaking, what would be appealed against is the effect of the legislation, not the legislation as such. This litigation would in the name of parties directly affected by the this legislation. It will probably take until the end September before any party is affected by this legislation. Between January and the end of September the settlement of Feed in Tariff for electricity produced by photovoltaic installations will most probably still be within the annual hours scheme of RDL14/2010. The damage will occur as soon as an installation has generated an electricity surplus in terms of the hour profile of RDL14/2010. These hours will then be sold at pool price. The difference between pool price and Feed in Tariff, mitigated by the 7% rule as discussed in the previous post on retro activity will be the damage to be claimed, according to Spanish Jurisprudence. A claim shall be filed within 30 days of the occurrence of the damage. this is not the receipt of the invoice, but the actual liquidation of the feed in tariff. The invoice is mere proof.

The 7% rule as such however is arbitrary and most of all contrary to the proper concept of a feed in tariff. I am still giving this a few thoughts and will dedicate another article on the outcome.

On Wednesday January 12th I will be attending a board meeting of the APPA, in which these issues will be discussed, and on the 18th we will be attending a meeting of the PV section of APPA, where these issues will be discussed specific for the PV sector. I still owe you a post on the compatibility of the discussed legislation with European Law; let's see if I get that done between tomorrow and Wednesday. --> you can read that post here: RDL14/2010 infringes Directive 2009/28/EC

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