RDL14/2010 infringes Directive 2009/28/EC
RDL14/2010 can be challenged directly invoking European Law
The European Court case 6/64, commonly referred to as "Costa/ENEL" is fundamental for EU Law, and comes to mind when examining RDL14/2010. What is interesting here is not that this case had to do with an electricity company, but that it had to to with admissibility of Mr. Costa's claim. The court ruled that EU law can never, I quote: "be overridden by domestic legal provisions, however framed". This is still valid, almost 50 years later. According to Spanish Law, RDL14/2010 can only be directly challenged by a very limited group of actors. The owners of PV plants are not amongst them. However, if these owners are affected by RDL14/2010 in a way adversely to EU law, particularly Directive 2009/28/EC, then RDL14/2010 can be challenged through the provisions of European Law.
That's as far as admissibility is concerned. Next step: direct effect of Directive 2009/28/EC. Does this Directive contain clauses that may be eligible for direct effect? I think it does. Article 3 of the directive contains mandatory clauses and the term for transposition of this article expired December 5th 2010. 20 days before RDL14/2010 came into force. Article 3 of the Directive obliges Spain to, I quote: "introduce measures effectively designed to ensure that the share of energy from renewable sources equals or exceeds that shown in the indicative trajectory set out in part B of Annex I". and "In order to reach the targets set in paragraphs 1 and 2 of this Article Member States may, inter alia, apply the following measures: (a) support schemes; (···)".
The Member states are obliged to establish measures to ensure the achievement of their targets, but have a discretionary power to choose how. One line of thought: As soon as the member state has implemented certain measures allowed by European Law, it has materially met part of it's obligations to transpose the Directive into national law. If a posterior National Law subsequently deprives these measures from their effect, an infringement of European Law may be the result. The Directive creates rights for the nationals of a Member state which cannot be simply wiped out by the government of that Member State. This does not change if the measures a previous to the Directive, as long as they contribute to the achievement of the goals of that Directive, they will be ruled by this Directive. Admittedly, this is not a formal transposition; the Directive requires to be quoted in the national transposition legislation, and this has not happened in our case. However, even if the Directive has not been transposed, the "standstill clause" does not permit member states to adopt acts contrary to the Directive [this paragraph was modified on January 14th].
In the European Law doctrine of the "effet utile", Article 3 of the Directive would be rendered useless, if RDL14/2010 caused bankruptcy of PV plant owners who were entitled to a Feed in Tariff on December 5th 2010. If an infringement of European Law causes damages to nationals of a Member state, be it individuals or companies, damages will have to be paid to these nationals by that Member state.
The Spanish Government had already vested it's Industry Ministry with the power to limit the amount of hours in which a Renewable Energy installations would be eligible to the Feed in Tariff. Why then has it adopted a Royal Decree Law with a limitation of the hours? My educated guess is that they were afraid that the limitation under the previous Royal Decree (NOT RDL!) would be successfully challenged by the affected parties, invoking the LSE (Law of the Electricity Sector). The Government came up with the RDL to frustrate possible attempts of affected parties to challenge the limitation in hours.
Hasn't the Government has thought of European Law implications then? No doubt they have, but this way it has come up with a nice smoke curtain and a few more obstacles to win time against those who want to challenge it's latest piece of legislation.
This post is still just a very broad outline, the argument still needs to be wrought intensely, but I do think that we have a point here. We published a further analysis here: Attack RDL14/2010 directly? A further analysis
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