Holtrop S.L.P. blog


The Platform for a New Energy Model received yesterday a notification of the European Commission in which it was reported that the Commission had decided to open a proceeding against Spain for the establishment of an indirect tax on electricity generation that might be contrary to EU law.

The complaint, drafted by Holtrop SLP lawyers, is the second of a series of six complaints, three of which have already been presented, in which the Platform requests the European Commission to start an infringement proceeding against Spain, because its legislation in the energy sector, and in particular regarding renewables, is contrary to EU Law.

A representation of the Platform met with the legal services of the Commission last July in order to discuss in person the content of these complaints and, following the meeting, the Commission considered that the complaint against Law 15/2012 should be analyzed in details.

Spain will now have a period of 10 weeks to respond and if the Commission is not satisfied with the answer it can start an infringement procedure against Spain.

The complaint focuses on several provisions of Laws 15/2012 and 17/2012 which constitute a breach of the following European norms:

A)Article 3.2 of Directive 2009/28/EC, for endangering the achievement of the objectives of a 20% share of renewable energy in the Spanish energy mix by 2020;

B)Article 3.1 of Directive 2009/72/EC, due to a discrimination between electricity undertakings depending on whether they operate under the ordinary or special regime;

C)Article 13 and 16 of Directive 2009/28/EC, which forbid discrimination between technologies, as the 7% tax contained in Law 15/2012 implies a clear discrimination against those technologies for whom a feed-in tariff is more required;

D)Articles 107 and 108.3 TFEU, by failing to notify the Commission in advance what actually constitutes a reverse state aid to companies operating under the ordinary regime;

E)The principle of legitimate expectations, for applying a 7% retroactive cut to feed-in tariffs to investments made several years ago, as investors could not have reasonably foreseen such a drastic change in legislation;

F)The European strategy for clean and efficient vehicles, by making more difficult the development of electric cars in the EU, as long as Article 3.4 of Directive 2009/28/EC.

The Platform hopes that this decision of the Commission can influence the current proposals of Royal Decrees on renewables and self-consumption and hopefully lead to the total abrogation of Royal Decree Law 9/2013, a norm containing again retroactive cuts to renewable energies, highly questionable under EU Law.


Letter EC August 26th