Holtrop S.L.P. blog
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In this week's opinion article, at EnergyNews.es, I reflect on the label of "artificial intelligence", erroneously granted to machines such as electricity meters and comment on the need to maintain "the best kindness" of collective self-consumption, free and flexible aggregation of load curves.

 

 

Click here to read the opinion article.

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LaInformacion.com has published my opinion article, "What do the directive on renewable energies and semiconductors have in common?", in which I delve into recently approved Spanish regulations and their relationship with the Directive (EU) 2018/2001.

 

From the entry into force of Directive 2018/2001, last December 24, 2018, the Spanish State can not approve regulations contrary to that Directive. This is our semiconductor, which only passes legislation and regulation that tends to comply with Directive 2018/2001, everything that goes in the opposite direction is considered to be contrary to EU law and illegal. Thus, repealing Royal Decree - Law 15/2018 and the new Royal Decree of self-consumption without further ado, would be prohibited.

 

 

The full article is available here.

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EnergyNews.es blog has published my latest article, "Floors in PPAs and Auctions", in which I delve into some of the issues addressed during my speech at the 'PPA's vs Auctions' debate table, during the conference 'Solar Plants in Spain: development, financing and energy future', organized by UNEF and Soltec, last February.

In it, I explain that the use of hydrogen is increasing considerably, and that the demand for electricity to produce this hydrogen will generate a floor in the electricity market price.

The full article is available here.

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My last article "¡Se ha planteado una cuestión prejudicial ante Luxemburgo en el IVPEE!" (A preliminary ruling in the IVPEE has been raised before the Luxembourg Court!) has been published in the Panorama section of the magazine Energías Renovables.

In that article I explain that, during my visit to Luxembourg on the occasion of the oral hearing before the CJEU for the Hydraulic Canon, I was notified of a preliminary ruling on the IVPEE in the PO 1491/17 procedure before the Superior Court of Justice of Valencia. The issues raised by the SCJ of Valencia coincide with those raised in our proceedings, focusing, among other things, on the indirect nature of the IVPEE. We now have all the procedures on the disastrous tariff reform for Spanish renewable energies on the CJEU in Luxembourg.

The full article is available here.

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In this article, posted on my blog of the journal Energías Renovables, I make an assessment of what has been the year 2018 and the outlook for 2019. I analyse major milestones in litigation, including IVPEE, and complaints to the European Commission in Brussels. I also highlight how, at a firm level, the evolution of the renewable sector is observed. Without prejudice to the maintenance of litigation, there is a clear increase in the number of industrialists and EPCists seeking legal advice regarding the development of new business models within the framework of the energy transition.

 

 

The full article is available here.

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The last article, "Three positive aspects and one negative aspect of the Proposed Law of reasonable profitability", has been published in the blog of the magazine Energías Renovables, in which I present my assessments on the draft of the Law in which the Government addresses the regulation of the reasonable profitability for the next regulatory periods.

 

 

The full article is available here.

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I have published in the blog "Energy as a right", of the media "20 Minutos", an article in which I analyze the effects of the regulatory change by which the guarantees that must be deposited for the development of new generation facilities are multiplied by four. This measure has an important impact on the development of new installations for the production of electricity through renewable energies in Spain.

 

 

You can access the full article here.

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The EnergyNews magazine has published my last article about the possibilities that are open for shared self-consumption after the approval of Royal Decree-Law 15/2018. In particular, I analyze the application of the rules of nomination and distribution of energy to shared self-consumption.

The full article is available here.

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My latest article "Dissidence, Opportunism, Rationality (II)" has been published in the Panorama section of the magazine Energías Renovables. The article is the second installment of that published almost five years earlier in relation to the contrariety to European law of cuts to renewable in Spain. This installment details the current status of the issue, going into detail, both formally and materially, the status of the challenge that we currently have before the General Court (TG) of the Court of Justice of the European Union (CJEU).

 

You can read the full article here.

 

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The Fulls dels Enginyers magazine, the newspaper of the industrial engineers of Catalonia, has published this article of mine: Coincidences, synchronicity and persistence. In it, I analyze some of the changes in the regulation of self-consumption introduced by Royal Decree-Law 15/2018.

 

The full article is available here.

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I write regularly in Energias-renovables.com, where I have my own blog and share my perspective on the updates of the renewable energy market and regulations in Spain.
After the Constitutional Court did not admit a mediatic preliminary ruling from the Supreme Court over IVPEE’s constitutionality, I analyzed in my last article how this inadmission does not interrupt my firm’s claim over the illegality of IVPEE, and hold confidence that IVPEE is not compatible with the EU Directive 2008/118/CE.
The inadmission of the Supreme Court’s preliminary ruling now opens a pandora box for the regional courts in Spain tu ask for preliminary rulings befor the Court of Justice of the European Union and, eventually, to new judicial doctrine.    


Here you can find the full article.

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On June 26th and 27th, I was with a delegation of photovoltaic producers in Brussels, to watch the world premiere of the featured film "Sol(d) out" by Cesar Vea in the European Parliament. As I regularly do in Energynews.es, I took the opportunity to write an article stocktaking the defense that our firm carries for this collective.


In the article, I make an assessment on the term “Legitimate Expectations” to analyze the regulations around “Reasonable Return” and the legislative changes in the renewable energies sector. Accordingly, I analyze that the way Spanish governments have pretended to change the “Reasonable Return” term during the last years has infringed the “Legitimate Expectations” of renewable energies investors in Spain.


I also share hope that the new Spanish government will improve the current situation and revert the damages that the collective of renewable energy producers are supporting.


Here you can find the full article.

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As we do every year, our Firm attended from the 13th to 15th the Spanish renewable energies fair GENERA 2018, where we had a booth in the section of UNEF. This time, Javier Monforte from the magazine Energética XXI invited me to write an article about energy self-supply for what would be the nº 177th magazine, June- July 2018.


After analyzing the latest version of article 21 of the draft for a new European Directive of Renewable Energies, over which an agreement was reached recently in the trilogues, I got inspired in the ethics of work from the Japanese to write about how the new regulatory scenario is affecting the renewable energies market and its influence over the PPA and energetic self-supply.
In that sense, I emphasize in the article how PPA can become a cornerstone, and how the energetic self-supply will soon have a more complete legal framework.


Here you can find the full article.

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I regularly write and publish articles for www.Energias-Renovables.com, where tiday I published an article proposing to the new government of the PSOE a series of steps that would help to recover the legal certainty in the renewable energy sector, decimated by the previous administration.


In the article I draw your attention to an advertisement about State Bonds in which it was said: "I will have won in tranquility. When you invest in Treasury, your future is written in perfect future. " What will those who have invested in renewable energy in Spain think about this message?


Here you can find the full article.

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2018 will be a very important year for renewable energy. The main reason for this is not regulatory nor even political, but rather economical: the reduction in the price of renewable generation technologies and storage systems will result in an exponential increase in the use of renewable energy systems.

 

One of the most important tools in shaping this development will be bilateral contracts for the sale and purchase of energy, known as PPAs (Power Purchase Agreements). PPAs will decisively contribute to the development of new projects, favoring their bankability due primarily to the ability of installations to diversify their income streams. This in turn allows for producers to remove, partially or totally, their exposure to volatile market prices in the ‘pool’.

 

In fact, yesterday 22 January 2018 we participated in the UNEF Working Group for PPAs. During the session Piet Holtrop, founding partner of HOLTROP SLP Transaction & Business Law, and Luis Castro, partner in the firm Osborne Clarke, gave presentations regarding the opportunities and possibilities that PPAs offer within the Spanish legal system. In addition, there are already three new events planned in which Piet Holtrop will expand upon the regulations applicable to PPAs. The first will be the General Assembly of EolicCat, on 25 January 2018, the second in the conference ‘Wind Power and the Market’, organized by the Wind Power Business Association on 21 February 2018, and the third, on 7 March 2018, at the Igualada Energy Expo. You can obtain further information on these events by visiting the Agenda section of our blog.

 

A good indicator of the relevance of a particular issue in a given sector of the economy is the number of conferences and speeches that are dedicated to it. In this respect, the past year has been telling: for example, on 16 May 2017 the ‘Ateneo de la Energía’ organized a conference dedicated to PPAs: “The unknown of which everyone speaks”, in which Piet Holtrop spoke on the topic: “What can go wrong with a PPA?” Indeed, in 2017 PPAs were spoken of a great deal in the sector. During the APPA annual conference which took place on 23 and 24 October 2017, Piet Holtrop again spoke on the issue, this time in a presentation titled “Regulatory framework for PPA contracts”. For this presentation, we prepared a PowerPoint of 70 pages, in which we detailed the legislation applicable to PPAs. PPAs were also a focus of discussion in the IV Solar Forum of UNEF, on 21 and 22 of November 2017. In this conference, Piet Holtrop participated along with other lawyers, experts in the sector, in a round table entitled “What sectors offer the best opportunities for photovoltaic self-consumption?”, which inevitably ended up discussing self-supply and PPAs. Lastly, Piet Holtrop again spoke on the topic in a session that took place in Can Muntanyola, regarding energy in industry, specifically a round table entitled “Industrial self-consumption: alternative, remote or virtual”.

 

The industrial sector’s interest in PPAs is consolidating. Additionally, self-supply, or remote self-consumption, offers, through PPAs, interesting and innovative alternatives for all those entities that want to produce and consume their own energy. Further information on this topic is available via articles written by Piet Holtrop, available here and here.

 

Our group of specialist lawyers in PPAs is made up of the lawyers Christopher Smith, Jordi Pujol Puente and Jorge Andrey Sterner, who work closely with the other members of our firm to deepen our knowledge of PPAs, as well as preparing different varieties of PPAs for our clients.

 

It is true that the development of the projects that ‘won’ the Spanish electricity auctions in 2017 will develop significant activity in the sector, as it is also true that self-consumption will continue contributing to the installation of new renewable capacity in Spain. However, and this is what we really want to emphasize with respect to 2018, PPAs will consolidate their standing as a key tool for the promotion of renewable generation. This means of contracting demonstrates the competitivity of these technologies as compared to traditional energy, given that they make it clear that in the free market, without any need of Government support, they are the most profitable option available.

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Yesterday we had the opportunity to hear first-hand about Property Assessed Clean Energy (PACE) from Jane Elias, the Director of the Sonoma County Energy Independence Program. PACE is an innovative and alternative form of financing for energy upgrades that have a positive impact on the environment. The improvements are affixed to property and they can cover energy efficiency measures, installation of distributed generation from renewable sources, window insulation, water conservation or other retrofitting measures. PACE can be used in all sectors, from commercial to residential and agricultural, providing increased comfort and efficiency as well as reducing utility bills.

The way the system works is through the issuing of a municipal bond, which is then paid back through property tax. A 7% interest rate is set on property tax, 3% is for the treasury and the remaining 4% is for the maintenance of the program. PACE can cover an investment of up to 10% of the property value at the moment of application and only requires an upfront cost of approximately 200 dollars for the applicant to obtain the necessary paperwork, meaning it is a financial tool which is readily available to all.

Because the improvement is affixed to property, it will be passed on to the next owner and in this way, it is an investment which increases the property value. Furthermore, in the case of default on the mortgage payments which leads to a sale of the property, PACE will not be affected as it is linked to the property, meaning that due payments will be covered by the sale price and the improvements will be transferred to the next owner.

PACE was born four years ago in the county of Sonoma in the United States where, because of the recession, there was a strong need to create jobs and banks were unwilling to provide easy financing. Sonoma wanted to tackle climate change by reducing greenhouse gas emissions, and accordingly, PACE was developed, rapidly flourishing and achieving its goals, becoming the 4 billion dollar industry it is today. Currently PACE programs have been implemented in over 30 states in the US, with the development of the necessary enabling legislation.

It is true that there are some differences between the situation in the US relative to Spain, where multifamily buildings are predominant versus single family homes. Keep in mind also that the success of the PACE model depends on the speediness of the process (where an applicant can be approved in between 1 day to 1 week), making PACE very attractive. It is questionable whether these time periods are feasible in Spain. All of this tells us that if we want to implement similar mechanisms in Spain, we will require strong collaboration from the administration at all levels, and of course, a clear message that climate change must be addressed not only at a macro level, but also by taking a bottom up approach.

The predominant system used by the public administration for financing energy conservation measures in Spain so far has been largely based on offering aid schemes. On the other hand, the private sector has offered Energy Performance Contracts, by which installed energy efficiency measures are paid for by reference to the financial saving generated. Thus, PACE allows to utilise the best of both worlds in a joint effort to promote and lead the fight against climate change. 

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After a period of increasing optimism in the renewable sector, which has generated a new wave of green field projects, M&A activities , renegotiations of contracts and new auctions in which we are playing an active role advising our clients, the new Secretary of State has come up stating that the theoretical profitability of 7.39% for renewables generators will not be maintained in the next regulatory period. Instead these may be reduced according to the evolution of the profitability of the 10-year Spanish bond, which would yield a return, at the moment, of around 4.3%. 

After a meeting held by the Secretary of State for Energy with representatives of the photovoltaic sector, the Government assumes that the profitability of renewables facilities will vary according to the yield of the bond, confronting the argumentation that 7.39% was frozen for the whole technical lifespan, as established in the Additional First Provision of Royal Decree-Law 9/2013.

Before this alarming news, internally we have held several urgent conversations in the office, as well with several representatives of the sector, to decide how to act, with a worrying feeling that "we are back to black". First of all, we need to put up a fight in order to achieve that these Government intentions never see the light in any legislative form. There are legal arguments enough to doubt whether this can be approved for the new regulatory period without passing through the Spanish Parliament, as the differential rate of the remuneration must be approved by Law, as established in Article 19.2 of Royal Decree 413/2014.

In case the proposal were  approved, it would be necessary to re-analyze the legality of the remuneration system at the light of this new perspective. It is crystal clear that with this in force it would be impossible to determine ex ante the profitability of any project, making these  unbankable and thus creating an economic nonsense. Because of this, we will have to re-inform the European Commission about the confirmation of this fear, where 7.39% may or may not remain in the following regulatory periods and, consequently, exhaust all available national remedies, at the light of these new developments.

We sincerely hope that the Secretary of State rectifies and everything comes back together at its place, in a moment of growing activity in the sector, and in which the only thing desired is regulatory stability. We are already missing the dyas of just having a lame duck caretaker Government, which could not betray the legitimate expectations every now and then.

As usual, we remain at your service to comment the latest news.

 

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This is the sum that Jeremy Rifkin gave last week in his participation in a conference in Sant Cugat del Vallès (Barcelona) and it represents the stranded costs to the global energy industry for the transition to a new energy model. Continuing with the numbers, forty eight billion dollars is what, according to the International Energy Association, we will need to invest before 2030 to install the technology which allows us to be more efficient and use less energy, and to generate the remaining energy needed in a cleaner way.

Who will bear the costs? Observing the regulatory practice of our country, the reality is that part of these stranded costs have already been diverted to the renewable energy sector. Renewable producers suffered up to 50% cutbacks on their legitimately set retribution. 

You can read the full article in Spanish published by Piet Holtrop in Energías Renovables here.

 

Marjolein Koene

www.holtropslp.com

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Coming September 28, 2016 the Catalan Energy Efficiency Cluster (Clúster d’Eficiència Energètica de Catalunya) and Holtrop S.L.P. Transaction & Business Law will organize a  debate on Photovoltaics, called “Spain: Government against Renewables” together with Fundación Renovables, Som EnergiaANPIER and the actor César Vea including  the premiere of the documentary  “El Camino del Sol” in Barcelona.

 

Place of celebration: Auditori Pompeu Fabra del COEIC – Vía Laietana, 39 – Barcelona from 18:00 a 20:30.To see the full programm of the event, please click on following pdf-document (in Spanish): 

 Programm

The programm of the conference is as follows: 

 

Opening paper, 18:00-18:15

Janet Sanz Cid - "Ecología, Urbanismo y Movilidad" Townhall of Barcelona

 

Table 1: Renewables in Spain: past, present and future, 18:15-19:15

Moderator: Francesc Ribera, Clúster d’Eficiència Energètica de Catalunya

Why should we stand up for renewables?, Joan Herrera, Fundación Renovables

What has happened with renewables in Spain?, Pere Guerra, ANPIER

How is the actual situation?, Piet Holtrop, HOLTROP SLP Transaction & Business Law

What is the future of renewables in Spain?, Sara Gutiérrez, Som Energia

 

Table 2: Showing of the documentary “El Camino del Sol” (19:15-19:45) and debate (19:45-20:30)

Daniel Pérez, HOLTROP SLP Transaction & Business Law

César Vea, director “El Camino del Sol”

 

If you are interested in knowing more about "El Camino del Sol" and César Vea's next project, the film Sol(d) Out" please click herehere or here.

 

Marjolein Koene

www.holtropslp.com

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This article, written by Daniel Perez Rodriguez, partner of Holtrop S.L.P. Transaction & Business Law,  was originally published in Spanish in "el Periódico de la Energía" on September 8th, 2016.

A history on renewables and bricks

Imagine, dear reader, that you own an empty house that needs reforming, and that I have been relocated in 2007 to work in your city for good. As your house is outdated, you agree to make significant necessary investments to condition the housing in exchange for a commitment on my part to stay in the house for the next 30 years, so that you can amortize your investment. We agree on a rental rate of 700 EUR per month, upgradeable annually according to the Consumer Price Index, which I will have to pay in the first 5 days of each month. And for added security, we notarize the contract and officially register it.

Well, imagine that after three years of living in your house and paying the agreed rent, at the end of 2010 I unilaterally decide that instead of 30 years I reduce the duration of the contract to 25. And a few days later, due to the fact that the housing prices have dropped and because of the economic crisis, I make the decision to only pay you the monthly instalments until September of each year, failing to pay the last three.

On top of that, in 2012, I decide I'll pay 7% less rent each month because the neighbours are very noisy, and therefore I have to buy earplugs to sleep. The following year I choose to set a fixed rental price, eliminating the updating of the rent according to the CPI. And I decide that instead of paying the full rental amount each month, I will pay you a percentage, paying you the rest when I collect the money from several creditors who still owe me.

In 2013, emboldened by the improvements in the contract that I'm achieving, I decide to change the way of calculating the rent according to a method I still have to establish, and in the meantime, I pay you on account. The following year, at last, I fix the method. I decide that I will pay you a variable amount, so that in this way, in the 25 years of rental duration you get a reasonable return, which will be determined by the profitability the banks will give me for a bank deposit of 10 years. That return will be calculated taking investment costs of housing and maintenance costs into account. Not your actual costs, but some estimated costs, assuming you were a "model house owner". And of course, to establish how much the house costed, I cannot consider what you paid, but rather the cost for the builder of the entire complex, i.e., the "housing complex", to situate the houses at a distance of less than 500 meters apart from one another. In your costs I will neither consider autonomous nor local taxes, and from your income I will subtract the aid for housing rehabilitation you received when you did the construction. Of course, I will also subtract all I have paid these years when it comes to the calculation of what I still owe you, but in a manner that the profitability you get seems reasonable to me. Oh, and every six years I will update the rent I pay you. That's it for now.

I almost forgot: If you decide to finalize the rental agreement and you wish to come and "self-consume" your house, you will have to ask permission to the local real estate agency, which may take several months, and you will have to pay me a fee, as a compensation to the rest of the owners who cannot rent  their house to you, because you already live in yours. And it is strictly forbidden to share the "self-consumption" of your home with others, because the damage for other landlords would be even greater.

P.S. This story is based on real facts. Not in the real estate sector, of course, where it is inconceivable that something like this could happen. As soon as the tenant goes too far, he will be evicted and problem solved. These events have happened in the renewables sector. Just substitute the author of these lines by the Ministry of Industry of the Kingdom of Spain and the patient reader by a renewable energy producer.

Unfortunately, to make the whole story worse, it is not only that there is a Ministry or a person acting this way, as in the case of the story that has been told. What is really dramatic is that those responsible for interpreting the rules, i.e., the Courts, have decided that the behaviour of the Ministry is in compliance with the Law and that renewable energy producers have the obligation to support all these unilateral changes that I have been describing, or those that may be imposed in the future, so as that the Ministry can declare that the return obtained by renewables producers is "reasonable".