LEGISLATION

Tax and financial measures - Act 16/2013, of October 29, adopting measures regarding environmental tax matters and other tax and financial measures. (BOE 260, October 30, 2013)

Legal  Flash  –   Update  on  corporation  tax  approved  under  Act  16/2013,  of October 29

OTHER LEGISLATION

OFFICIAL JOURNAL OF THE EUROPEAN UNION (OJEU)

Commission Regulation (EU) No. 1123/2013 of November 8, 2013, on determining international credit entitlements pursuant to Directive 2003/87/EC of the European Parliament and of the Council. (OJEU 299, November 9, 2013)

EFTA Surveillance Authority Decision No. 522/12/COL, of December 19, 2012, amending for the eighty-seventh time the procedural and substantive rules in the field of state aid by introducing a new chapter on state aid measures in the context of the greenhouse gas emission allowance trading scheme post-2012. (OJEU 296, November 7, 2013)

OFFICIAL GAZETTE OF THE SPANISH STATE

Electricity: Act 17/2013, of October 29, on guaranteeing supply and increasing competition in the electricity systems of the islands and areas outside the Peninsula. (BOE 260, October 30, 2013)

Pollution: Royal Decree 815/2013, of October 18, approving the Regulation on industrial emissions, and implementing Act 16/2002, of July 1, on integrated pollution prevention and control. (BOE 251, October 19, 2013)

Oil sector: Order IET/1789/2013, of September 30, amending the fees of the Corporation of Strategic Reserves of Oil-Based Products for 2013. (BOE 238, October 4, 2013)

Radiation protection: Order IET/1946/2013, of October 17, regulating the management of general waste in activities using materials containing natural radionuclides. (BOE 254, October 23, 2013)

Electricity sector: Order IET/2013/2013, of October 31, regulating the competitive mechanism assigning the interruptibility demand management service. (BOE 262, November 1, 2013)

Electricity sector: Resolution of September 24, 2013, by the Directorate General of Energy Policy and Mining, reviewing the cost of producing electricity and the last resort tariffs to be applied from October 1, 2013. (BOE 235, October 1, 2013)

Gas system: Resolution of October 8, 2013, by the Directorate General of Energy Policy and Mining, approving the winter action plan for gas system operation.  (BOE  244, October 11, 2013)

Oil products - Prices: Resolution of October 4, 2013, by the Directorate General of Energy Policy and Mining, publishing the new pre-tax sales prices of piped liquefied petroleum gas. (BOE 246, October 14, 2013)

Hydrocarbons: Resolution of October 25, 2013, by the Directorate General of Energy Policy and Mining, publishing the proposed definitive list of plants or production units with an assigned production quantity of biodiesel , to determine compliance with the mandatory objectives for biofuels. (BOE 266, November 6, 2013)

Energy: Resolution of November 4, 2013, by the Directorate General of Energy Policy and Mining, establishing the average energy price to be applied when calculating the remuneration of the interruptibility demand management service offered by consumers that acquire energy on the production market during the fourth quarter of 2013. (BOE 269, November 9, 2013)

REGIONAL LEGISLATION

CANTABRIA – OFFICIAL GAZETTE OF CANTABRIA (BOC)

Decree 60/2013, of October 17, 2013, regulating the supply of fuel through tank trucks at the ports owned by the autonomous region of Cantabria. (BOC 206, October 25, 2013)

GALICIA – OFFICIAL GAZETTE OF GALICIA (DOG)

Decree  150/2013,  of  September  5,  regulating  the  application  of  the  EU  Ecolabel voluntary environmental labeling system in Galicia. (DOG 183, September 25, 2013)

NAVARR A – OFFI CI AL GAZETTE OF NAV ARR A (BON)

Regional Act 30/2013, of October 15, prohibiting the use of fracking for research and for extracting unconventional gas in Navarra. (BON 208, October 28, 2013)

BASQUE COUNTRY – OFFICIAL GAZETTE OF THE BASQUE COUNTRY (BOPV)

Act 2/2013, of October 10, amending Act 16/1994, of June 30, on Preserving Nature in the Basque Country. (BOPV 199, October 17, 2013)

CASE LAW

Judgment by the Supreme Court of October 9, 2013. Environment. Individual assignment of greenhouse gas emissions rights. Calculation of the average capacity utilization rate of the production capacity of new participants.

The agreements of the Council of Ministers dated December 30, 2010, and October 11, 2012, approving the individual assignment of greenhouse gas emissions rights to the facilities of the appealing company have been canceled.

There are differences of opinion on the interpretation of “average capacity utilization rate of the production capacity of the facilities” (“UR”). The appealing company considered that the new engines would work continuously, at full capacity, at the established UR of 1, at least during the first three years. However, in these agreements, the Council of Ministers did not consider this possible or representative of the sector, and based exclusively on historical data, they reduced the UR to 0.5957. They calculated this UR based on data corresponding to the two years (2001 and 2002) the owner selected for the cogeneration facility that will be replaced, i.e., the facility in which the old engines will be replaced.

The administration’s interpretation, which considered the historical factor to be the representative element to calculate the utilization rate of the production capacity, ruled out the consideration of new participants as viable and relevant when assigning greenhouse gas emissions. In turn, this rules out new business investment aimed largely at innovative sectors developing state-of-the-art technology, which would lead to (i) energy reduction under the framework of the EU’s principles of energy efficiency and saving, thus making void the concept of new participant, and (ii) related consequences in the framework of the renewal of the business production community and the commitment to developing less polluting and more productive new technologies.

Judgment by the Supreme Court of July 30, 2013. A circular is not an adequate way to regulate the registration of photovoltaic electricity facilities under the special regime.

A circular issued by the regional government of Andalusia regulating the definitive registration of photovoltaic electricity facilities under the special regime , challenged by the state, has been declared null. The court considered that the regional government should have issued a higher ranking regulation (order or decree), and not a merely organizational and informative circular.

Judgment by the Supreme Court of October 14, 2013. Castor: gas storage. Royal Decree 855/2008, granting the  concessionaire the right to operate the underground natural gas storage known as "Castor." Final paragraph of article 14 (compensation to the concession holder for recovering the investment in the case of the concession’s expiry or termination). Declared against the public interest.

The Supreme Court (“SC”) rejected the administration’s intention to cancel the compensation to be awarded to concessionaire, which was based on negligence or willful misconduct, and ordered the administration to pay the compensation.

The administration intended to cancel the final paragraph in article 14 of Royal Decree 855/2008, of May 16, on which authorization for the administrative concession was based, considering it abusive and contrary to the public interest. Under this article, if the concession is suspended or terminated, the facilities would become the property of the state and the operator would receive compensation for the net value of the facilities. However, if negligence or willful misconduct were detected, the compensation would be reduced to the “residual value” of the facilities. The administration requested its nullity, claiming that this clearly contradicts article 29 of the Hydrocarbon Sector Act, which establishes that the cancelation or termination of a concession operation implies "immediate reversion" to the state.

The decision revolved around whether compensation for the facilities assigned to the state in the case of the concessionaire’s negligence or willful misconduct—reduced for this reason to the residual value of the facilities—is compatible with the principle of the free reversion of the facilities established in the second paragraph of article 29.1 of the Hydrocarbon Sector Act, considering that the concession would be canceled or terminated, without having to dismantle the facilities, which would be returned to the state.

The SC considers that the Hydrocarbon Sector Act does not always exclude compensation for the facilities returned to the state, which is also upheld by criteria of equity and to prevent a hypothetical unfair enrichment of the state. In this case, it must be considered that the final paragraph of article 14 of Royal Decree 855/2008 addresses the expiry or termination of the operating facilities being returned to the state, and that the facilities will be able to provide a service once returned to the state.

The TS concludes that the final paragraph the administration seeks to cancel (referring to the payment of compensation—the residual value of the facilities—in the case of reversion of the facilities due to the concession’s expiry or termination, even if there was negligence or willful misconduct by the concessionaire) does not clash with article 29.1 of the Hydrocarbon Sector Act, so the state cannot declare its nullity. However, this does not mean that if there was negligence or willful misconduct, the concessionaire would receive the compensation established in the disputed paragraph; it means that that concession rule is a general concept of compensation for the residual value of operational facilities returned to the state when the concession expires or is terminated. Therefore, the amount of compensation the concession holder would receive would depend on the reasons for the expiry or termination of the concession and the relevant circumstances in any given case.

Judgment by the Supreme Court of May 29, 2013. Omitting the Spanish Energy Commission’s (“CNE”) report when drafting a ministerial order establishing an incentive to reduce waste in the gas transport network does not imply an annulment process.

The appeal seeking the nullity of part of a regulation establishing an incentive to reduce waste in  the gas transport network, similar to that established for the  distribution network and regasification plants, has been dismissed. The appellant claimed there was a formal flaw in the drafting of the order, as the CNE’s mandatory report was not considered. This omission does not imply an annulment process, as it does not substantially change the content of the challenged order.