Holtrop S.L.P. blog
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…we have been very busy at our Firm with litigation following the retroactive cuts of feed in tariff, and the moratorium of feed in tariffs in general in Spain.

 

As expounded in various articles over the past year both RD1565/2010 and RDL14/2010 have rigorously limited the years during which photovoltaic power plants are entitled to feed in tariffs, and furthermore capped the amount of hours in which these are entitled so during the time that remains. These cuts have been put in place in flagrant violation of the applicable legal framework of Directive 28/2009/EC.

We sued the Spanish State for a damages claim representing almost 750 electricity producers who together own 1500 photovoltaic power plants in Spain on the 24th of November 2011. This claim results from the limit introduced by RD1565/2010, which reduced the duration of the FIT from possible 40 years to 25 years. According to Spanish Newspaper elEconomista the total number of plants claiming damages including our claim sums to 2000 (Edition 24-11-2011, section “Empresas” page 15). The 500 plants not represented by our firm were represented by Allen & Overy, Cuatrecasas and KPMG. The total value of these claims is of several hundred million euros. The claim is now to be resolved on an administrative level by the Council of Ministers of the Spanish Government, and ultimately by the Spanish Supreme Court, after previously obtaining a preliminary response from the Court of Justice of the European Union. We subcontracted Garrigues Medioambiente to produce an independent expert report establishing the damages incurred by our clients.

We started litigation against the capped hours FIT settling of the “Comisión Nacional de Energía” (The Spanish National Energy Regulator) filing objections against the settlements of the period running from August to December 2011. These settlements are done applying the polemic RDL14/2010. We did this for more than 4500 individual monthly settlements for installations owned by slightly over 1000 clients of our Firm. The value of these claims over the following years will increase to well over 150 million euros. This claim is to be resolved by the Spanish Audiencia Nacional, after previously obtaining a preliminary response from the Court of Justice of the European Union. 

Last week we initiated litigation before the Spanish Supreme Court against the moratorium put in place by RDL1/2012. The moratorium was launched by the new Conservative Government and came entirely unexpected. The moratorium and the Directive 28/2009/EC are incompatible. 

Currently we are being engaged by a group of around 150 PV producers to investigate possible criminal liability for certain elements of the legislative process of the Minister of Industry of the previous government, Mr. Miguel Sebastian. We will be publishing a report with our findings on the 13th of April (which is a Friday).

Our clients are both international and national, although technically speaking obviously all represented installations are national. In relation to the various stages of the mentioned law suits our Firm was covered by PV Magazine, SUN & WIND Energy, Solarthemen, Solarplaza and elEconomista.  

Our small team of six attorneys and three administrative/technical staff has been able to cope with this through a use of some sophisticated and other less sophisticated software on our intranet. All our clients have online access to their files and can communicate with us on an online secure platform.  We are regularly blogging on the ins and outs of these engagements and other issues which we consider relevant.

In the meantime we have also sponsored the English version of APPA’s study of the macroeconomic impact of renewable energies in Spain, as we do every year. You can download that study here.