Holtrop S.L.P. blog
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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".

 

 

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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.

Dirty Soria

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.

 

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The informative session on market derivatives organized by APPA on 20th July in Madrid  proved to be very instructive. The focus of the seminar was on one specific type of derivative and one type of consumer, namely, swaps and renewables producers.

It is well known that swaps are complex products, not only because the law says so itself, but because of their very nature. Indeed, there are implicit swaps (which are contained in another contract, typically a credit or loan agreement) and explicit swaps (which have been contracted separately), furthermore, they can be future, exotic, generic and they may be subscribed in organized markets or in the over the counter market (OTC); ninety percent of swaps are subscribed in these latter markets. The International Swap and Derivatives Association has indicated that for OTC markets, only parties in equal conditions can operate in them. While the Spanish Stock Market Law assumes that a party with a certain business volume (20-40M€) can be considered professional, assuming that this automatically makes them experts in financial derivatives, the truth is that it is impossible to negotiate under equal conditions a product of which something as essential as the price, is unknown to one of the parties. May it be noted here that, only for the IRS generic swap there exists are daily data that allows, those with access to platforms such as Bloomberg, to analyse their fluctuation.

Therefore, while swaps and derivatives are not intrinsically harmful, the use that they have been given, particularly in relation to the obtention of financing for renewable installations, has had disastrous consequences for many. The reasons for this are several: it could be that it was not the appropriate product to meet the client’s needs, that it was not suitable for the type of client (non-professional), that the product was badly designed (which generates an over-coverage and creates a new risk), or because of the evolution of the markets, for which there is a clear case of information asymmetry between the parties.

Thus, in order to comply with the obligation to provide sufficient and adequate information, the bank must give the client a reasonable valuation of the price of the derivative and its cancellation cost, as well as an efficiency estimation and a diagram with sensitivity indicators. All of this of course, prior to subscription. What the client would realise with these tools is that he was becoming the insurer of the bank. If the purpose was to cover a volatility risk in interest rates, surely there were much simpler ways of doing so, namely, by setting floors and caps to their fluctuation. Nevertheless, they chose to offset one “risk” by generating an even bigger one for the client.

Moving now onto a more practical level, what can we do if we are affected by a harmful swap? As we announced in May (here), the National Comission of Markets and Competition (CNMC) is investigating 4 major banks for collusive agreements in relation to the commercialization of these types of derivatives. A possibility for those who have subscribed swaps with those banks would be to wait for the outcome of the CNMC’s investigation and, if favourable, claim restitution before the Commercial Courts, petitioning them to apply arts. 1 and 2 of the Spanish Law in Defence of Competition, based on art. 1 of Directive 2014/104/EU, which is currently in the process of transposition into Spanish law. According to the Directive “anyone who has suffered harm caused by an infringement of competition law by an undertaking or by an association of undertakings can effectively exercise the right to claim full compensation for that harm from that undertaking or association”. The second possibility available, and the most direct, consists in filing a suit before the civil jurisdiction invoking the breach of the duties of information to be provided by the bank, for which there is extensive case law. Indeed, financial entities are not only bound by their contractual duties, they also have to meticulously comply with all the banking legislation, which includes the said duty of information to the clients. In all cases, in order for our claim to be successful, it is essential that we quantify the harm caused by the swap, as well as providing a detailed description of the duties breached by the counterparty.

To facilitate these kind of claims, litigation funds have recently taken prominence (see news). These funds offer the plaintiff the necessary resources to litigate in exchange for an agreed share of the proceeds of the claim. From Holtrop we are already working to assess these financing opportunities, which would entail a collaboration between us and the litigation fund, allowing us to provide a tailored service to our clients’ needs. 

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The filmmaker César Vea, we had the pleasure to meet at the fair GENERA June 2016 in Madrid and whose short film "El camino del Sol" has already been released, begins this July to shoot his documentary film "Sol ( d) Out ". The director says that "Sol (d) Out is the story of a heist. However, this film does not belong to the detective genre, nor the horror, nor to science fiction. Because Sold (d) Out is not even fiction". César goes on to say that fraud to the renewables sector is a systematically silenced theme, unknown to the general public, the reason to make this effort to bring it to light through a documentary. "

Clicking on the following link you can see a trailer of the film.

The newspaper 20 minutes echoed this news  in the following article:

http://www.20minutos.es/noticia/2765826/0/cesar-vea-cuenta-camino-sol-historia-robo-62-000-familias-que-creimos-energias-verdes/

As far as Holtrop is concerned, we think it's a great initiative. Among other reasons because we see in this film an excellent lobby tool. Cuts to renewables have generated a large number of litigations. However, beyond our sector, there has been little outrage among citizens, and it has rarely been articulated in a way that would lead to concrete, visible and effective results. It is precisely in lobbying where the big electricity companies are light years ahead of us. Therefore we will support this project from our office, giving interviews and also through a financial contribution to the making of the film, as many others have done already (it´s needless to say that the big producers are not fond of joining films about uncomfortable truths). To all those who are interested in supporting this project, or just want to read the description of it by its director, we refer to the following link:

https://m.facebook.com/soldoutfilm/posts/?ref=page_internal&mt_nav=1

Marjolein Koene

www.holtropslp.com

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Last July 2016 our partner Daniel Pérez Rodríguez published following article entitled "Electricity Generation and State Aid: Compatibility Is The Question" in the European State Aid Law Journal (EStAL) Quarterly, Volume 15 (issue 2, 2016), a leading journal in the field of state aid law.

Following please find an extract of this publication, which in its full version contains 21 pages. Due to copyright regulations we can only publish an abstract.

"It was once thought that aid given through the electric system to electricity generators did not constitute State resources, and thus, it was excluded from the Commission’s State aid control. However, time has shown that this was not the general rule, but rather an exception, due to the specific factual circumstances of the analysed measure in PreussenElektra. At least this was the case for the Court of Justice of the European Union, to whose case law the Commission has adapted swiftly. At the moment, it is clear that almost all measures to support electricity generation need to be authorised by the Commission. Hence, focus has shifted to the question of whether a measure is compatible with the internal market rules. In 2014, Commission Guidelines were approved in this field, which are applicable for aid to renewables and aid to generation adequacy, whereas aid to nuclear and coal are still analysed under general State aid rules".

In case of interest, please send us an This email address is being protected from spambots. You need JavaScript enabled to view it. to receive the full version of this publication. You can also order the to paid downloadable version at estal.lexxion.eu by following this link.

 

Daniel Pérez Rodriguez

www.holtropslp.com

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Today we learned that the Supreme Court has raised a question of unconstitutionality to the Constitutional Court regarding the payment of the "Impuesto sobre el Valor de la Producción de Energía Eléctrica" (Tax about the Value of Electricity Production), which applies a 7% rate to the obtained income from the sale of electricity by the producers of it, whether renewable or fossil energy.

The Supreme Court questions the environmental purpose of the tax and considers that in reality it is a pure collection tax. Therefore it decides to ask the TC, who has already dismissed some appeals of unconstitutionality, such as the one from Andalusia, although the legal arguments in that case were different (Article 9.3 of the Constitution, whereas now 31.1 is being invoked).

Now the ball is in the court of the Constitutional Court, who has to decide on the validity of the tax in a ruling that could have unpredictable consequences, since it is not at all clear, in case the tax money has to be paid back, how to perform such devolution. All we know is that whoever does not recur in the four years following to the settlement, will lose the right to recover the amounts paid in that annuity and that likely compensation to the plants will be reduced in case this tax should no longer be paid, since right now it is being computed as an operation cost.  However, if the settlements are closed, theoretically they can not be opened.

In short, it is a development that we value positively, as we have always defended the illegality of the 7% tax,  and which once again proves that the problem of the tariff deficit is not solved in a proper way. It remains to see what the TC decides and, in case of cancellation, how the decision applies.

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Although this has proven an impossible concept to grasp for certain German political leader, spending to save is actually an option, and not a bad one at all.

Energy Performance Contracts (EPCs) set the framework by which installed energy efficiency measures, which are verified and monitored during the whole term of the contract, are paid for by reference to the agreed level of energy efficiency improvement or financial saving generated. In other words, the service provider  (installer) implements the service or technology agreed by the parties for reducing energy consumption or for generating energy sustainably (what is known as the Energy Conservation Measure), thereby offering a financial saving, which is in turn used to fund the cost of the improvements and services.

The objectives behind an EPC project can be varied, from renewable energy generation, to reduction in CO2 emissions, cost savings and improved building environment. Similarly, the Energy Conservation Measure may at the same time contain a wide range of different measures, such as lighting, heating, combined heat and power or metering. Therefore, it is critical to clearly identify objectives and requirements in the contract, as they can sometimes be conflicting. For example, a CO2 reduction may be our main objective, however, the biggest cost saving may not necessarily give the largest CO2 savings, or vice-versa. 

The other cornerstone of these type of contracts is the savings guarantee, meaning that the service provider has to achieve the savings or else, they face being liable for that underperformance. The duration of the guarantee will typically last until the project costs have been covered by the savings. Sure enough, austerity does not always have to be the answer.

In the UK, a number of such projects have been undertaken within the public sector, particularly following the entry into force of The Energy Efficiency (Encouragement, Assessment and Information) Regulations 2014. This piece of legislation sets the basic duties of the competent authorities in relation to energy services and energy performance contracts.

Unfortunately, on 7 August 2015, Eurostat published a guidance note titled "The impact of Energy Performance Contracts´ on government accounts" stating that under Eurostat Accountability rules, energy efficiency investments are considered to be a cost in terms of deficit targets. Unsurprisingly, stakeholder Veolia Spain has said that the guidance note has caused a delay or avoidance of public tenders to enter into energy performance contracts for public buildings.

Once again, while rules and legislation in the field of renewable energy and energy efficiency are pointing one way, common sense, technology and facts are pointing elsewhere.