September 6th, 2016, www.energías-renovables.com: Dirty Soria
This article was originally published in Spanish in the "Panorama" section of www.energias-renovables.com on 6th September 2016. Piet Holtrop, founding partner of Holtrop S.L.P. Transaction & Business Law, collaborates from time to time with the magazine and also has a blog in this publication.
In case you are interested in reading the Spanish version please click here.
This summer I had some more time than usual to spend on reading since the courts of administrative litigation in Spain are not operational in August. It has been refreshing to read the ideas of Epictetus, Marcus Aurelius and Seneca compared to our reading of what usually comes from the courts. These philosophers seek purity in reasoning and coherence in thought, which should really also be found in court judgments. Especially when it comes to the highest ones in our country.
Supreme Court ruling on RD413 / 2014 and OM IET / 1045/2014
The ruling before summer on the regulatory absurdity of former minister Soria is a great example of inconsistency by definition. There is inconsistency in the fact that the votation has not been unanimous but it is pretended to make it look like there is no reasonable doubt about the interpretation of European law within the meaning of the Treaty on the Functioning of the EU (TFEU) 267. But it is obvious: when all court members do not interprete the law the same way, there clearly is a reasonable doubt on that very interpretation. You can not pretend you are interpreting national law, subject to the same legal concepts as European law, in particular the concept of legitimate expectations this way.
In this case European law should be applied, and although the concepts are very similar in both national and European law, and therefore interpreting national law seems to be the right way, it is not. This obviously is not only contrary to the TFEU, but also to the Spanish Constitution (SP) itself, specifically its Article 24. According to the EC a judge can not usurp another one's competences, in this case the Court of Justice of the European Union .
The Constitutional Court will not have to do the work of the Supreme Court all over again, but will have to rule about the lack of reference for a preliminary ruling. We are lucky that the constitutional question is this one, with all the constitutional and doctrinal relevance involved. If it would have been the other way the Constitutional Court would propably not even admit it, since it does not rule on matters that are a mere infringement of the constitutional rights of Spanish citizens. This is very sad for the citizen, but things are constitutionally in Spain the way they are. The only availabe option is to go to the Court of Human Rights in Strasbourg in case of a not intellectually challenging constitutional matter.
César Vea in Brussels
Speaking of citizens with not appetizing enough problems for our Constitutional Court, I have to mention our friend and client César Vea here, who will be just today (September 6th, 2016) and tomorrow at the European Parliament in Brussels together with our partner Daniel Pérez to discuss the problem he cries out to heaven. Not only has he be punished in the same way as all the other photovoltaic producers, but also has he been taken out of the whole of the tariff system with arguments that have not been applied to all other producers. We are taking his defence to Strasbourg in order to seek the annulment of this nonsense. César Vea is now working on a film about the ordeal he is suffering, following his short film on the photovoltaic debacle.
Another faultless one to Washington
Another ordeal for political hygiene and decency in our country consists in sending quoted former industry minister Soria to the World Bank. This is an ordeal for the separation of powers because it is clearly focused on trying to extinguish the fire of the international arbitrations against Spain, which depends on the entity where former minister Soria ends up.
This is indecent, not only because according to the rules of the World Bank only persons of impeccable reputation may be proposed for working there, but also because, apart from not being it now, they send him on purpose to demonstrate his "impeccable reputation" over there. And to make matters worse, it's starting to be a habit sending dirty money people over there. In the case of Soria it's probably double dirty money, metaphorically for tax evasion and literally for proceeding the money from dirty sources in terms of energy.
From Madrid to Luxembourg
I have strayed a bit from my initial issue: consistency in thought and purity in reasoning. I consider myself a stoic person, just like the philosophers I mention in the introduction of this article and I will serenely insist to achieve a just sentence by using all the legal weapons at my disposal. I'm more motivated and more convinced than ever about the fact that the Court of Justice of the European Union will interpret European law as I have always maintained. Each time more people share my thinking and now I am sharing it at least materially together with three judges of the Supreme Court of Spain. This is quite someting.
Coincidentally the same evening after the publication of this article we learned that former minister Soria had withdrawn his candidature at the World Bank.