The Supreme Court (TS) has rejected in an order the request of the Spanish Photovoltaic Union (UNEF), this association groups the most companies in the solar sector, to suspend in a precautionary and immediately the rules and procedures established by the Secretary of State for Energy for the auction of renewable energies planned for next Wednesday, May 17.
The third Chamber of the High Court believes that the damages that may be caused by the holding of the auction "do not have the characteristics of irreparability or irreversibility necessary for adopt a very precautionary measure of that type.
UNEF based its request to the Supreme Court on the fact that the auction of renewables greatly favors wind energy companies, which therefore contradicts the established principle of technological neutrality in the royal decree of the Ministry of Energy about the auction published last April.
The Supreme Court has examined the so-called precautionary suspension request, which is being processed inaudita part, that is, without listening to the allegations of the other party, in this case the Ministry of Energy, as UNEF understands that there was a special urgency As the auction is scheduled for May 17.
Ordinary processing continues
The Supreme Court says the UNEF can request a financial compensation if the auction is discriminatory. The high court rejects the request, but continues the processing of the suspension request through the ordinary route, where the arguments of the Ministry of Energy will be heard, which will have ten days to Answer the request for suspension made by UNEF.
This sector association presented a few days ago, specifically on May 4, an appeal contentious-administrative in the Supreme Court against the RD dated March 31st, calling for the remuneration regime for new facilities for the production of electricity from renewable sources; against the ministerial order of April 6 that regulated the procedure for assigning that regime; and against the two resolutions of the Secretary of State for Energy, both of April 10, one of them calling the auction, and the other establishing the procedure and rules of the same.
Auction rejection
The UNEF association demanded that it be adopted as an urgent precautionary measure the suspension of the resolution of the Secretary of State for Energy, of April 10, since it established a procedure and rules for the auction, specifically the criterion of ordering "from highest to lowest the number of equivalent hours of operation of the reference type installation".
The association understands that this unjustifiably discriminates against photovoltaic projects compared to wind power plants, since as the Energy Order of April 6 establishes a number of hours of operation of 3.000 for wind power plants and 2.367 for photovoltaic power plants, the order would always be based on benefit of wind installations and to the detriment of the solar industry.
The Supreme Court rejects the petition with the argument that the damages caused by the application of this royal decree and the contested order, especially the holding of the auction "do not have the characteristics of irreversibility or irreparability that could determine, in another case, the acceptance of the urgent precautionary claim ”.
It adds that, “even admitting that the holding of the auction implies the award of rights to third parties and the consolidation of certain legal situations, lThe damages derived from the holding of the auction would not be irreparable., to the extent that, if an estimating judgment were issued, the damages caused to the appellant could be compensated through financial compensation ”.
On the other hand, it points out that, in principle, TS is not competent to hear the challenge of the aforementioned resolutions of April 10, 2017 of the Secretary of State for Energy, which would correspond to the Contentious-Administrative Chamber of the National Court, but for the reasons of urgency invoked, it has considered appropriate, in this case, to rule on the very precautionary measure concerned, even without a pronouncement on competition.