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Energy in Spain. Legal Issues – No. 3 (July 2020)
28 de July de 2020

Climate change and energy transition bill

On 20 May 2020, the Spanish Government passed a bill on climate change and energy transition. The bill has been sent to Parliament for processing and is expected to become an Act of Parliament by the end of 2020 / beginning of 2021.

The bill reflects Spain's commitments at the international and European level, puts the battle against climate change and energy transition to reach the climate neutrality objective by 2050 (at the latest) at the centre stage of political action, and aims to achieve a systematic improvement in the energy efficiency of the economy.  

The bill contains the following targets for 2030:    

- Reduction of greenhouse gas emissions across the entire Spanish economy: at least 20 % (compared to 1990).

- Penetration of renewable energies in final energy consumption: minimum 35 %.

- Electricity generation from renewable energy sources: minimum 70 %.

- Improvement of energy efficiency by reducing primary energy consumption: minimum 35 % (with respect to the baseline under EU legislation).

The bill includes two basic planning instruments (National Integrated Energy and Climate Plan (PNIEC) and the 2050 Decarbonisation Strategy) and requires all sectors to contribute to the decarbonisation of the economy: sectors participating in the Emissions Trading Scheme, large industries and the electricity sector, and diffuse sectors, including agriculture, forestry, transport, residential, institutional and commercial, and fluorinated gases.

The fulfilment of the above targets requires an unprecedented commitment to installing new generation capacity based on renewable sources, the introduction of mechanisms (auctions) for allocating this capacity that are appropriate for the intended purposes, and specific budgetary measures to foster their implementation.

The bill: (i) regulates non-flowing hydraulic technology (in particular, reversible plants) and includes an amendment to the Electricity Sector Act to regulate storage systems in general, not necessarily hydraulic, to maximise the integration of renewable production technologies; (ii) envisages the participation of demand, distributed generation and self-consumption in the markets, including balancing and adjustment services, by providing for a new type of electricity sector entity: the independent aggregator, and (iii) updates the provisions applicable to the hybridisation of electricity generation facilities with renewable energy sources or storage facilities in terms of access and connection to the electricity grid.

As far as fuels are concerned, the bill places restrictions on new hydrocarbon exploration and exploitation projects and provides for measures to promote renewable gases, including biogas, biomethane, hydrogen and other alternative fuels.

In the area of transport, the bill includes measures to reach a fleet of passenger cars and light commercial vehicles with no direct CO2 emissions by 2050, introducing an obligation for operators of petrol stations of a certain size to install electricity recharging facilities and for municipalities with a population of more than 50,000 and island territories to implement urban planning measures to reduce mobility caused emissions (low-emission areas).

The bill establishes a framework to ensure a fair transition to a decarbonised economy that takes into account the most vulnerable groups and geographical areas, including rural areas (Fair Transition Strategy and fair transition agreements). 

Finally, the bill contains certain measures in the area of governance and to direct public spending towards achieving the energy transition targets, introducing the climate variable into sectoral policies for the purpose of monitoring and evaluating public policies, and the need to draw up risk reports.

The government expects that, once passed, the bill, will generate more than €200,000 million in investment in the next decade and create up to 350,000 new jobs annually. The act is expected to drive the recovery from the Covid-19 crisis.

Royal Decree-law 23/2020, of 23 June, approving measures in the field of energy and other areas for economic recovery

Royal Decree-law 23/2020 (RDL 23/2020) introduces various measures on access and connection to the electricity transmission and distribution grids, new business models in the electricity sector, and a new auction mechanism applicable to new generation capacity based on renewable sources. Additionally RDL 23/2020 grants the declaration of public utility (for expropriation purposes) to high capacity vehicle recharge stations, includes some provisions related to the electric tariff deficit in 2019 and 2020 and streamlines the power plant authorization processing, particularly in case of non-substantial modifications.

a) Access to transmission and distribution grids

RDL 23/2020 contains certain provisions applicable to existing and future grid access and connection permits designed to ensure that access and connection rights are associated to sound, technically viable projects.

Plants holding permits granted prior to the entry into force of Act 24/2013, on the Electric Sector, are subject to the Act's eighth transitional provision, which states that such permits are subject to automatic expiry if the operating authorization was not granted before 21 August 2020 (i.e. two months after the end of the state of emergency declared under Royal Decree 463/2020, of 14 March).

Plants holding permits granted after the entry into force of Act 24/2013 must fulfil the following milestones if permit holders decide to continue with their authorisation processing:

Access permit date of grant Application submitted and accepted approval Favourable environmental impact declaration Prior administrative authorisation Construction authorisation Operating authorisation
Between 28 December 2013 and 31 December 2017 3 months 18 months 21 months 24 months 5 years (*)
Between 1 January 2018 and the entry into force of RDL 23/2020  6 months 22 months 25 months 28 months 5 years (*)
After the entry into force of RDL 23/2020 6 months 22 months 25 months 28 months 5 years (*)

(*) 7 years in case of pump storage plants

Deadlines on the first two rows must be counted from the entry into force of RDL 23/2020. Deadlines on the third row must be counted from the date on which the access permit was granted.

Holders of an access permit who decide to continue with the authorisation processing need to apply for a connection permit in 6 months. This period must be counted from the entry into force of RDL 23/2020 or the date on which the access permit was obtained. Failure to comply with that deadline will result in the automatic expiry of the access permit and the enforcement of the statutory economic guarantee. 

Holders of an access and connection permit who decide to continue with the authorisation processing need to comply with the above milestones and show their compliance to the competent authorities. Failure to comply with any of these requirements will result in the automatic expiry of the access and connection permits and the enforcement of the statutory economic guarantee, except in case the environmental impact declaration has not been obtained for reasons not attributable to the permit holder.

RDL 23/2020 entitles permit holders to waive their permit and recover the economic guarantee within three months from the RDL's entry into force (that is to say, before 25 September 2020).

The RDL 23/2020's first transitional provision provides a moratorium for new access permit applications until the approval of the relevant royal decree and circular by the Government and the National Commission on Markets and Competition (CNMC), respectively, developing certain aspects of section 33 of the Act 24/2013 on access and connection.

A draft royal decree on access and connection has been recently submitted to public information by the Ministry for Ecological Transition. Once the royal decree is adopted the CNMC will need to issue the appropriate circular.

b) Criteria for considering that a generation plant is the same for the purposes of access and connection permits

In terms of modifications to a plant, RDL 23/2020 lists certain characteristics which, if not altered, shall result in the modified plant to remain covered by the access and connection permits originally awarded. In this case, the initial access and connection permits will still be valid and will only need to be updated. Conversely, if these characteristics are indeed altered, the modified plant shall no longer be considered the same plant, which means that an application must be made for new access and connection permits for the modified plant. Specifically, and for the purposes of RDL 23/2020, a plant will not be regarded as modified provided the alterations affect none of the following: a) the generation technology; b) the access capacity (with a margin of + 5%); and c) the geographic location  (with a margin of 10 km between the original and the modified locations).

c) Renewable energy auctions

RDL 23/2020 sets out the principles of a new auction’ system applicable to renewable energy, in addition to the specific remuneration regime contained in Act 24/2013, based on long term recognition of a fix price for the energy produced.

Subject to further development by governmental Royal Decree, this new system considers electrical energy, installed power or a combination of both as the product to be auctioned, whereas the price of energy (per unit of electricity, expressed in €/MWh) is regarded as a variable to be specified by tenderers in their bids. Although the new remuneration framework applies to technology-neutral auctions, separate auctions may be limited to certain generation technologies according to technical characteristics, scale, dispatchability, localisation, and technological maturity, among other criteria.

A draft Royal Decree has been recently submitted to public information until 17 July 2020, whereupon the CNMC has to issue a report. Accordingly, the draft might be subject to substantial amendments. The proposed regulation seeks to avoid a situation where an increasing abundance of renewable energy might result in a significant fall in market prices, creating uncertainty about the potential revenue of plants to the extent of hindering the financing of projects.

The new remuneration framework applies to renewable energy generation facilities with the exception of co-generation and waste processing plants. Facilities implementing the new remuneration framework may use more than one renewable technology and may include hybrid and storage facilities.

Small-scale facilities or demonstration projects may be exempted from taking part in auctions.

d) New energy business models

RDL 23/2020 contains new regulations on electricity storage, demand independent aggregators and hybridization of existing power plants.

New regulations on restructuring and insolvency proceedings

On 5 May 2020, the Spanish Government adopted Royal Legislative Decree 1/2020, approving the Consolidated Text of the Insolvency Act ("RLD 1/2020”). This text will enter into force on 1 September 2020.

One of the most remarkable aspects of RLD 1/2020 is the regulation of productive unit transfers.

Under RLD 1/2020, transfers of business units in the energy sector (especially in the renewable-energy sector) will be possible. This is because the new regulation provides greater security to all parties involved by filling certain gaps that existed in the old system. Some key changes introduced by RLD 1/2020 are: (i) the concept of productive unit, (ii) the procedural moment at which the sale of a productive unit may take place, (iii) the introduction of rules on the consent of preferred creditors to the sale of the productive unit, (iv) the effects of the sale of a productive unit and (v) the remedies available.

Through this mechanism purchasers of a productive unit will need to assume none of the business' debt, but only that portion of the debt related to the personnel employed by the busines in case a transfer of undertakings takes place.

Some first instance and senior judges are beginning to question whether the legislator has overstepped its powers. However, it is undeniable that the text eliminates some of the doubts that existed in the previous regulation, which will necessarily favour the purchase of assets as part of insolvency proceedings, also in the energy sector.

Conditions for the development of renewable generation projects in Spain

For 2021, an improvement in energy prices can be observed. The development of energy prices will depend on the fall in electricity demand, which is expected to be between 6% and 8% in 2020 depending on whether or not new mobility restrictions are put in place to deal with the Covid-19 pandemic.

ENERGY PRICES       
  July/August 2020 Q4 2020 2021
Futures prices 27 April (EUR/MWh) 21,85 41,78 41,77
Futures prices 21 June (EUR/MWh) 32.85 43 42.85
Futures prices 24 July (EUR/MWh) 34,83 40,46 44,00

Source: www.meff.es

As for projects under development, Royal Decree Law 23/2020 has introduced several new criteria, both in terms of the requirements for obtaining access and connection and in terms of the time limits for obtaining the administrative permits. These new criteria and requirements may result in some of the ongoing operations of greenfield projects being slowed down or in developers abandoning them.

As for project financing, although some financial institutions are still committed to financing projects where remuneration depends only on the price of energy (merchant), doubts about the price of future electricity may lead to some changes in this approach. The possibility of new energy auctions, whereby projects are eligible for a long-term fixed remuneration for the energy produced, is a scenario (common in other countries) in which financiers feel much more comfortable to finance this type of projects.

Finally, there is some concern in the sector about the increasing tariff deficit. It is well-known that the tariff deficit generated between 2000 and 2013 had an impact on the credibility of the system, but we believe that such deficit (around 1 billion €) is not structural but temporary due to the Covid-19 pandemic. We also believe that this deficit will have to be reduced and eliminated using existing legal mechanisms already approved.

For more information

Regulation. Pablo Silván. Partner. psilvan@ramoncajal.com

Finance. Javier Menchén. Partner. jmenchen@ramoncajal.com

M&A and contracts. Antonio de Mariano. Partner. amariano@ramoncajal.com

Restructuring and insolvency. Ramón Fernández. Partner. rfernandez@ramoncajal.com

Madrid

Almagro, 16-18
Madrid 28010
T: (+34) 91 576 19 00

Barcelona

Avenida Diagonal 615, 8ª planta.
08028
T (+34) 93 494 74 82

Ramón y Cajalabogados
#SomosRyC
Energy in Spain. Legal Issues – No. 3 (July 2020)
28 de July de 2020

Climate change and energy transition bill

On 20 May 2020, the Spanish Government passed a bill on climate change and energy transition. The bill has been sent to Parliament for processing and is expected to become an Act of Parliament by the end of 2020 / beginning of 2021.

The bill reflects Spain's commitments at the international and European level, puts the battle against climate change and energy transition to reach the climate neutrality objective by 2050 (at the latest) at the centre stage of political action, and aims to achieve a systematic improvement in the energy efficiency of the economy.  

The bill contains the following targets for 2030:    

- Reduction of greenhouse gas emissions across the entire Spanish economy: at least 20 % (compared to 1990).

- Penetration of renewable energies in final energy consumption: minimum 35 %.

- Electricity generation from renewable energy sources: minimum 70 %.

- Improvement of energy efficiency by reducing primary energy consumption: minimum 35 % (with respect to the baseline under EU legislation).

The bill includes two basic planning instruments (National Integrated Energy and Climate Plan (PNIEC) and the 2050 Decarbonisation Strategy) and requires all sectors to contribute to the decarbonisation of the economy: sectors participating in the Emissions Trading Scheme, large industries and the electricity sector, and diffuse sectors, including agriculture, forestry, transport, residential, institutional and commercial, and fluorinated gases.

The fulfilment of the above targets requires an unprecedented commitment to installing new generation capacity based on renewable sources, the introduction of mechanisms (auctions) for allocating this capacity that are appropriate for the intended purposes, and specific budgetary measures to foster their implementation.

The bill: (i) regulates non-flowing hydraulic technology (in particular, reversible plants) and includes an amendment to the Electricity Sector Act to regulate storage systems in general, not necessarily hydraulic, to maximise the integration of renewable production technologies; (ii) envisages the participation of demand, distributed generation and self-consumption in the markets, including balancing and adjustment services, by providing for a new type of electricity sector entity: the independent aggregator, and (iii) updates the provisions applicable to the hybridisation of electricity generation facilities with renewable energy sources or storage facilities in terms of access and connection to the electricity grid.

As far as fuels are concerned, the bill places restrictions on new hydrocarbon exploration and exploitation projects and provides for measures to promote renewable gases, including biogas, biomethane, hydrogen and other alternative fuels.

In the area of transport, the bill includes measures to reach a fleet of passenger cars and light commercial vehicles with no direct CO2 emissions by 2050, introducing an obligation for operators of petrol stations of a certain size to install electricity recharging facilities and for municipalities with a population of more than 50,000 and island territories to implement urban planning measures to reduce mobility caused emissions (low-emission areas).

The bill establishes a framework to ensure a fair transition to a decarbonised economy that takes into account the most vulnerable groups and geographical areas, including rural areas (Fair Transition Strategy and fair transition agreements). 

Finally, the bill contains certain measures in the area of governance and to direct public spending towards achieving the energy transition targets, introducing the climate variable into sectoral policies for the purpose of monitoring and evaluating public policies, and the need to draw up risk reports.

The government expects that, once passed, the bill, will generate more than €200,000 million in investment in the next decade and create up to 350,000 new jobs annually. The act is expected to drive the recovery from the Covid-19 crisis.

Royal Decree-law 23/2020, of 23 June, approving measures in the field of energy and other areas for economic recovery

Royal Decree-law 23/2020 (RDL 23/2020) introduces various measures on access and connection to the electricity transmission and distribution grids, new business models in the electricity sector, and a new auction mechanism applicable to new generation capacity based on renewable sources. Additionally RDL 23/2020 grants the declaration of public utility (for expropriation purposes) to high capacity vehicle recharge stations, includes some provisions related to the electric tariff deficit in 2019 and 2020 and streamlines the power plant authorization processing, particularly in case of non-substantial modifications.

a) Access to transmission and distribution grids

RDL 23/2020 contains certain provisions applicable to existing and future grid access and connection permits designed to ensure that access and connection rights are associated to sound, technically viable projects.

Plants holding permits granted prior to the entry into force of Act 24/2013, on the Electric Sector, are subject to the Act's eighth transitional provision, which states that such permits are subject to automatic expiry if the operating authorization was not granted before 21 August 2020 (i.e. two months after the end of the state of emergency declared under Royal Decree 463/2020, of 14 March).

Plants holding permits granted after the entry into force of Act 24/2013 must fulfil the following milestones if permit holders decide to continue with their authorisation processing:

Access permit date of grant Application submitted and accepted approval Favourable environmental impact declaration Prior administrative authorisation Construction authorisation Operating authorisation
Between 28 December 2013 and 31 December 2017 3 months 18 months 21 months 24 months 5 years (*)
Between 1 January 2018 and the entry into force of RDL 23/2020  6 months 22 months 25 months 28 months 5 years (*)
After the entry into force of RDL 23/2020 6 months 22 months 25 months 28 months 5 years (*)

(*) 7 years in case of pump storage plants

Deadlines on the first two rows must be counted from the entry into force of RDL 23/2020. Deadlines on the third row must be counted from the date on which the access permit was granted.

Holders of an access permit who decide to continue with the authorisation processing need to apply for a connection permit in 6 months. This period must be counted from the entry into force of RDL 23/2020 or the date on which the access permit was obtained. Failure to comply with that deadline will result in the automatic expiry of the access permit and the enforcement of the statutory economic guarantee. 

Holders of an access and connection permit who decide to continue with the authorisation processing need to comply with the above milestones and show their compliance to the competent authorities. Failure to comply with any of these requirements will result in the automatic expiry of the access and connection permits and the enforcement of the statutory economic guarantee, except in case the environmental impact declaration has not been obtained for reasons not attributable to the permit holder.

RDL 23/2020 entitles permit holders to waive their permit and recover the economic guarantee within three months from the RDL's entry into force (that is to say, before 25 September 2020).

The RDL 23/2020's first transitional provision provides a moratorium for new access permit applications until the approval of the relevant royal decree and circular by the Government and the National Commission on Markets and Competition (CNMC), respectively, developing certain aspects of section 33 of the Act 24/2013 on access and connection.

A draft royal decree on access and connection has been recently submitted to public information by the Ministry for Ecological Transition. Once the royal decree is adopted the CNMC will need to issue the appropriate circular.

b) Criteria for considering that a generation plant is the same for the purposes of access and connection permits

In terms of modifications to a plant, RDL 23/2020 lists certain characteristics which, if not altered, shall result in the modified plant to remain covered by the access and connection permits originally awarded. In this case, the initial access and connection permits will still be valid and will only need to be updated. Conversely, if these characteristics are indeed altered, the modified plant shall no longer be considered the same plant, which means that an application must be made for new access and connection permits for the modified plant. Specifically, and for the purposes of RDL 23/2020, a plant will not be regarded as modified provided the alterations affect none of the following: a) the generation technology; b) the access capacity (with a margin of + 5%); and c) the geographic location  (with a margin of 10 km between the original and the modified locations).

c) Renewable energy auctions

RDL 23/2020 sets out the principles of a new auction’ system applicable to renewable energy, in addition to the specific remuneration regime contained in Act 24/2013, based on long term recognition of a fix price for the energy produced.

Subject to further development by governmental Royal Decree, this new system considers electrical energy, installed power or a combination of both as the product to be auctioned, whereas the price of energy (per unit of electricity, expressed in €/MWh) is regarded as a variable to be specified by tenderers in their bids. Although the new remuneration framework applies to technology-neutral auctions, separate auctions may be limited to certain generation technologies according to technical characteristics, scale, dispatchability, localisation, and technological maturity, among other criteria.

A draft Royal Decree has been recently submitted to public information until 17 July 2020, whereupon the CNMC has to issue a report. Accordingly, the draft might be subject to substantial amendments. The proposed regulation seeks to avoid a situation where an increasing abundance of renewable energy might result in a significant fall in market prices, creating uncertainty about the potential revenue of plants to the extent of hindering the financing of projects.

The new remuneration framework applies to renewable energy generation facilities with the exception of co-generation and waste processing plants. Facilities implementing the new remuneration framework may use more than one renewable technology and may include hybrid and storage facilities.

Small-scale facilities or demonstration projects may be exempted from taking part in auctions.

d) New energy business models

RDL 23/2020 contains new regulations on electricity storage, demand independent aggregators and hybridization of existing power plants.

New regulations on restructuring and insolvency proceedings

On 5 May 2020, the Spanish Government adopted Royal Legislative Decree 1/2020, approving the Consolidated Text of the Insolvency Act ("RLD 1/2020”). This text will enter into force on 1 September 2020.

One of the most remarkable aspects of RLD 1/2020 is the regulation of productive unit transfers.

Under RLD 1/2020, transfers of business units in the energy sector (especially in the renewable-energy sector) will be possible. This is because the new regulation provides greater security to all parties involved by filling certain gaps that existed in the old system. Some key changes introduced by RLD 1/2020 are: (i) the concept of productive unit, (ii) the procedural moment at which the sale of a productive unit may take place, (iii) the introduction of rules on the consent of preferred creditors to the sale of the productive unit, (iv) the effects of the sale of a productive unit and (v) the remedies available.

Through this mechanism purchasers of a productive unit will need to assume none of the business' debt, but only that portion of the debt related to the personnel employed by the busines in case a transfer of undertakings takes place.

Some first instance and senior judges are beginning to question whether the legislator has overstepped its powers. However, it is undeniable that the text eliminates some of the doubts that existed in the previous regulation, which will necessarily favour the purchase of assets as part of insolvency proceedings, also in the energy sector.

Conditions for the development of renewable generation projects in Spain

For 2021, an improvement in energy prices can be observed. The development of energy prices will depend on the fall in electricity demand, which is expected to be between 6% and 8% in 2020 depending on whether or not new mobility restrictions are put in place to deal with the Covid-19 pandemic.

ENERGY PRICES       
  July/August 2020 Q4 2020 2021
Futures prices 27 April (EUR/MWh) 21,85 41,78 41,77
Futures prices 21 June (EUR/MWh) 32.85 43 42.85
Futures prices 24 July (EUR/MWh) 34,83 40,46 44,00

Source: www.meff.es

As for projects under development, Royal Decree Law 23/2020 has introduced several new criteria, both in terms of the requirements for obtaining access and connection and in terms of the time limits for obtaining the administrative permits. These new criteria and requirements may result in some of the ongoing operations of greenfield projects being slowed down or in developers abandoning them.

As for project financing, although some financial institutions are still committed to financing projects where remuneration depends only on the price of energy (merchant), doubts about the price of future electricity may lead to some changes in this approach. The possibility of new energy auctions, whereby projects are eligible for a long-term fixed remuneration for the energy produced, is a scenario (common in other countries) in which financiers feel much more comfortable to finance this type of projects.

Finally, there is some concern in the sector about the increasing tariff deficit. It is well-known that the tariff deficit generated between 2000 and 2013 had an impact on the credibility of the system, but we believe that such deficit (around 1 billion €) is not structural but temporary due to the Covid-19 pandemic. We also believe that this deficit will have to be reduced and eliminated using existing legal mechanisms already approved.

For more information

Regulation. Pablo Silván. Partner. psilvan@ramoncajal.com

Finance. Javier Menchén. Partner. jmenchen@ramoncajal.com

M&A and contracts. Antonio de Mariano. Partner. amariano@ramoncajal.com

Restructuring and insolvency. Ramón Fernández. Partner. rfernandez@ramoncajal.com

Madrid

Almagro, 16-18
Madrid 28010
T: (+34) 91 576 19 00

Barcelona

Avenida Diagonal 615, 8ª planta.
08028
T (+34) 93 494 74 82