In order to avoid the phenomenon of speculation in the market for permits for access and connection to the networks of generation facilities using renewable energy sources, Royal Decree-Law 23/2020, of June 23, which approves measures in the field of energy and other areas for economic reactivation (RDL 23/2020), established the mechanism of compliance with certain administrative milestones within the deadlines indicated. Article 1 of this RDL 23/2020 establishes five administrative milestones – 1st application submitted and accepted for the prior administrative authorization; 2nd obtaining of the favorable environmental impact statement; 3rd obtaining of the prior administrative authorization; 4th obtaining of the administrative authorization for construction and 5th obtaining of the final administrative authorization for operation – and establishes the deadline within which each of them must be met and the time of the start of the calculation, depending on the date of obtaining the access and connection permits.
The consequence of not accrediting to the grid manager the fulfillment of these administrative milestones in due time and form is the automatic expiration of the access and connection permits granted. This means that the planned generation facility will be aborted due to the impossibility of feeding the electricity that would be produced into the grid. Another foreseen consequence is the execution of the economic guarantees presented for the processing of the access request, unless, for reasons not attributable to the promoter, a favorable environmental impact statement is not issued.
This anti-speculation mechanism for meeting administrative milestones on time has caused problems arising from delays in the processing of administrative authorizations for the implementation of renewable generation facilities by the General State Administration and by the regional administrations. The workload of these Administrations in the face of the avalanche of requests for administrative authorizations and the lack of means to deal with it, has caused delays in the processing of these procedures, putting at risk the fulfillment of each of these milestones.
In view of the fear of these Administrations of having to assume patrimonial responsibilities due to the expiration of the permits obtained by the promoters of the facilities, as a consequence of the delays in the processing of the procedures attributable to them, specific solutions have been sought.
One of the solutions that some regional administrations have opted for is to grant retroactive effectiveness to acts issued after the deadline, in order to avoid non-compliance with the administrative milestone and the automatic expiration of the access and connection permits. This has already happened with the 1st milestone of the admission of the prior administrative authorization and has happened again with the 2nd milestone, consisting of obtaining the favorable environmental impact statement.
The environmental bodies of some Autonomous Administrations -Cantabria, Asturias, Canary Islands, Valencian Community …- have formulated with retroactive effect favorable environmental impact statements for renewable generation facilities, relying on section 3 of article 39 of Law 39/2015, of October 1, of the Common Administrative Procedure of Public Administrations (LPAC) These environmental impact statements have been formulated when the deadline established for compliance with the 2nd milestone had already elapsed, but by granting them retroactive effectiveness, the failure to meet the deadline is saved. As already mentioned, the purpose of this measure is to avoid the automatic expiration of the access and connection permits of the facilities affected by the non-compliance with the deadline of the 2nd milestone. In this way, these Administrations are exempted from liability for delays attributable to them.
The solution adopted of granting retroactive effectiveness to the administrative acts that make up each of the milestones in order to avoid non-compliance with the established deadlines raises legal doubts. It is worth remembering that section 3 of article 39 of the LPAC states that this is an exceptional measure, which can only be applied when the requirements established in the aforementioned section are met; retroactive effectiveness can be granted to acts when – in addition to those issued in substitution of annulled acts – they produce favorable effects for the interested party, provided that the necessary factual assumptions already existed on the date to which the effectiveness of the act is retroactive and this does not harm the legitimate rights or interests of other persons.
The controversy on this issue has just arisen when REE has communicated the automatic expiration of the access permits granted to several photovoltaic installations due to non-compliance with the 2nd administrative milestone, without taking into account the retroactive effectiveness granted to the favorable environmental impact statements, formulated out of time by the environmental body of the Administration of the Valencian Community.
This controversy has led the affected companies to file a conflict of access to the transmission grid, which has been resolved by the National Commission of Markets and Competition (CNMC) in the recent Resolution of October 5, 2023, upholding it and leaving without effect the declarations of expiration of the access permits issued by REE.
This is a relevant Resolution because it is the first to be adopted on this controversial issue and sets the guidelines that, in principle, and unless otherwise ruled by a jurisdictional body, must be taken into account by the bodies that manage access and connection permits. I will now refer to the most relevant aspects of this Resolution.
The decisive reason why the conflict is upheld is that it is not up to REE to question the validity and effectiveness of the administrative acts that make up the different milestones; in the case resolved, as has already been said, it is the environmental impact statement. It is said that these acts issued by the competent public administrations enjoy the privilege of declaratory self-protection and, therefore, can only be invalidated by the organs of the contentious-administrative jurisdiction. These acts are, therefore, outside the control of the access permit management companies and also, so it is said, of the CNMC. The consequence of applying this argument to the disputed issue is that neither REE nor the CNMC can assess the legality of granting retroactive effectiveness to the favorable environmental impact statement by the competent body of the Autonomous Administration, or to any other administrative act of those that make up the milestones established in RDL 23/2020.
Therefore, with this argumentation, the CNMC would have no need to pronounce on the legality of the measure adopted to grant retroactive effectiveness to the favorable environmental impact statement; therefore, any assessment on this measure would be unnecessary. However, the Resolution goes further and makes some considerations that try to justify the adoption of this measure in the case in question.
It is significant that the Resolution justifies the possibility of modulating the effectiveness of the administrative act in the specific case it addresses, in the jurisprudence of the Supreme Court on the cancellations of entries in the Register of pre-assignment of remuneration due to the exclusive lack of action by the competent Administration. It is said that <>>.
In view of this argument, the adoption of the measure in question would be more of an obligation than an option for the Administrations responsible for the delay in the processing of the procedures and the failure to meet the deadlines set for the milestones.
On the other hand, it is rejected that the adopted measure harms third parties with expectations on the access capacity that would be released as a consequence of the expiration of the permits, considering that this capacity would not have surfaced yet. It is specified that in those cases in which the capacity had surfaced, it would cause a prejudice to third parties interested in accessing this capacity, so it would not be possible to grant retroactive effectiveness to the act issued with delay. For the CNMC, the emergence of capacity as a result of the automatic expiration of permits would operate as a limit to the retroactive effectiveness of the act.
The CNMC also rejects that discriminatory situations may arise among the promoters, depending on whether the competent Administrations in each case to process the procedures are or are not willing to grant retroactive effectiveness to the acts issued with delay; it is argued in this regard that <<…obviously the possibility of a differentiated treatment arises from the fact that the competent Administrations are different, both the National Government and the Autonomous Regions>>.
What emerges from this Resolution is that the CNMC does not think it is wrong for the competent Administrations to grant retroactive effectiveness to the acts that make up the administrative milestones issued out of time, when the delay is attributable to them. Moreover, it is suggested, as stated above, that the Administrations responsible for the delays in the processing of the procedures grant retroactive effect to the acts issued in breach of the deadlines set for each milestone, so as not to violate the principles of efficiency, good faith and legitimate expectations.
The considerations made by the CNMC in this Resolution may open the way to the generalization of the measure of granting retroactive effectiveness to the acts that make up the administrative milestones issued after the deadline.