The allegations address the lack of precision regarding the accepted legal form for the constitution of an energy community, the need to limit the presence of large energy groups in these figures, and the urgency to adapt the facilitating framework to Spanish law.
May 18, 2023 – The Ministry for Ecological Transition and Demographic Challenge (MITECO) has presented a draft Royal Decree to regulate two legal figures within the scope of energy communities – renewable energy communities and citizen energy communities – partially fulfilling the transposition mandate set in the European Union directives that govern these instruments – Directive 2018/2001 and Directive 2019/944. While the draft royal decree introduces an appropriate framework that provides legal certainty, foresees the identification and removal of barriers, and contemplates the necessary measures for the development of energy communities, it also raises questions about which legal entities can be used for their constitution.
The International Institute for Law and the Environment (IIDMA) has submitted allegations to this project.
– The first allegation warns that the lack of precision in the accepted legal form for the creation of an energy community may generate confusion among the project’s recipients. While it is positive to regulate the legal form of energy communities with a broad criterion, it is more appropriate for legal certainty to explicitly mention the three legal entities that meet the necessary criteria – cooperatives, associations, and limited liability companies.
– The second allegation highlights the need to specify requirements regarding partners or members of energy communities to restrict the presence of large energy corporations.
– The third allegation points out that the article referring to the environmental, economic, and social benefits provided by renewable energy communities to their partners or members must specify how the received income, not intended to enhance those benefits, can be invested, to prevent possible misappropriation of funds.
– The fourth allegation states that a subsequent regulatory development will be necessary to correctly apply the facilitating framework provided in Article 22.4 of Directive 2018/2001 since the one established in the draft royal decree for renewable energy communities is a literal transcription of the said article instead of being adapted to the particularities of the Spanish legal system.
– The fifth allegation establishes that the protection regime provided in the royal decree is insufficient and will not allow proper representation of vulnerable consumers in energy communities.
– The sixth allegation underscores the need to add a provision that establishes the duty of citizen energy communities to promote the use of renewable energy sources in the development of their activities.
The complete text of the allegations can be consulted here: Allegations to the Public Consultation.
In December 2022, the IIDMA published the ‘Legal Guide for the Constitution of Energy Communities in Spain’, which identifies all available legal options and describes the steps to follow for their creation.
