Suspension of the processing of renewable energy projects in Spain: Royal Decree-Law 20/2022

The Royal Decree-Law 20/2022 of 27 December provides for a package of special measures affecting, among others, the renewable energy sector in Spain.

As explained in the Explanatory Memorandum to Royal Decree-Law 20/2022, the Order by which there will be a call for tenders in some of the transmission grid nodes reserved for access tenders under the provisions of Royal Decree 1183/2020, of 29 December is currently being processed.

In the drafts published so far, a higher score is envisaged for those projects that would put the facilities into service in the shortest time possible. The Explanatory Memorandum indicates that, as a result of this, speculative manoeuvres have been observed on the part of certain agents who are initiating the first steps in the procedures without continuing with them, with the aim of blocking sites to other agents with a real interest in developing renewable projects, and that this has also generated a notable increase in applications for administrative procedures related to these projects, which would affect the available resources of the authorities. Therefore, Royal Decree-Law 20/2022 orders the suspension of the processing of certain administrative procedures affecting projects that do not yet have access and connection permits.

 

Suspension of administrative procedures

On an exceptional basis, and for 18 months from 28 December 2022 (i.e. until 28 June 2024), for nodes where it has been decided there will be an access capacity tender, the procedures initiated by developers by means of any of the following steps are hereby suspended:

• Submission of receipts accrediting the deposit of the financial guarantee for the processing of access permits under Article 23 of Royal Decree 1183/2020, of 29 December.
• Submission of applications for the administrative authorisations provided for in Article 53 of Law 24/2013, of 26 December, on the Electricity Sector (i.e. prior administrative authorisations and construction authorisations).
• Submission of applications to determine the scope of the environmental impact study (provided for in Article 33.2 of Law 21/2013, of 9 December, on environmental assessment).
• Submission of applications for the determination of environmental impact for renewable energy projects or simplified procedures for the authorisation of renewable energy projects under the provisions of Royal Decree-Law 6/2022.

When the corresponding access capacity tender has taken place at each node, the processing of the applications corresponding to the successful projects shall be initiated, and the procedure for the remaining projects shall be shelved, unless there are exceptional reasons not to.

 

Exceptions to the suspension

The suspension of the above-mentioned procedures shall not apply to those projects which:

• have applied for an access and connection permit under the provisions of Article 8 of Royal Decree-Law 6/2022 of 29 March, adopting urgent measures in the framework of the National Plan of response to the economic and social consequences of the war in Ukraine. This Article 8 refers to requests relating to nodes that had been reserved for capacity tenders until the entry into force of Royal Decree-Law 6/2022 and which had been made available, to the extent of 10% of their available capacity in each of the nodes, for awarding to self-consumption projects in accordance with the general management criteria of Article 7 of Royal Decree 1183/2020, of 29 December.
• Are a result of hybridisations of electricity generation facilities with access and connection permits already granted that comply with the provisions of Article 27 of Royal Decree 1183/2020, of 29 December.
• Are a result of applications for which access and connection permits have already been granted.
• Have submitted an application for an access and connection permit to a grid node under Article 7 of Royal Decree 1183/2020, of 23 December, prior to the decision to hold an access capacity tender at that specific node, provided that the application has not been rejected, or leave to proceed with it has not been denied, by the system operator.

 

Assessment of the regulations

Royal Decree-Law 20/2022 therefore appears to be an attempt, in addition to freeing up available resources of the authorities, to prevent formalities and procedures - that do not seem to be strictly necessary in order to participate in a future access capacity tender - from being speculatively applied for in advance by developers in order to guarantee themselves a supposedly higher score in tenders whose definitive conditions have not been announced, or which could be used to block or delay the processing of other potentially more viable projects.

In this regard, it should be noted that the proposed Order envisaged as a higher scoring criterion in the tender procedure that of projects that would bring the facilities into service in the shortest possible time (specifically, the proposed Order envisaged that those applicants that undertook to inject energy before achieving the fifth milestone as set out in Article 1 of Royal Decree-Law 23/2020, of 23 June, would receive a certain extra score for each month before the expiry of this milestone), and therefore a favourable decision on the affected procedures could lead to being able to formulate a greater commitment to reduce the deadline for achieving the fifth milestone.

At the same time, Royal Decree-Law 20/2022 does not affect projects (and administrative procedures relating to them) which, covering nodes subject to access capacity tender, already have access and connection permits or which have an application for an access and connection permit covered by the exceptions.