Neither 500 million euros, as was initially thought, nor the more than 1,400 million that the third vice president, Teresa Ribera, pointed out last week. The public coffers are going to suffer a bigger hole due to the cancellation by the Supreme Court of the so-called hydroelectric canon created by the Government of Mariano Rajoy: of at least 1,624 million, according to the latest estimate of the Ministry for the Ecological Transition. The hole is superior to the rescue of the failed Castor gas warehouse.
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That figure is provisional, because there are still open litigation and non-prescribed exercises, according to Ministry sources. It is the gross amount that in principle the Public Treasury must return to the electricity companies for the liquidation of this canon between 2013 and 2020, after the ruling of the Supreme Court that in April annulled several provisions of a decree of the PP with which it was launched in 2015. But the figure is not closed. This amount does not take into account the costs incurred by the different hydrographic confederations for the liquidation of the tax, nor the accumulated interests; nor what was collected this year.
Regarding what was collected this year, the amount is important, as a consequence of the record prices of electricity in 2021. Only in the case of the Confederación del Miño-Sil, “in the year 2021 the income from this fee amounts to 47,399,925.59 euros “, he points out in his 2020 accounts, formulated in the middle of the year. This entity is the second basin organization that collects the most for the canon (25.6% of the total), only behind the Duero Confederation (33.2%), where the large dams of Iberdrola, the national leader in energy, are located. hydroelectric.
These more than 1,600 million far exceed the 1,350 million of the rescue to Castor, charged in the gas bill with a Royal Decree-Law approved, such as the hydroelectric canon, by José Manuel Soria as Minister of Industry. That decree was annulled by the Constitutional Court and at the end of 2020, the Supreme Court forced the Government to return to the creditor banks (Caixabank and Santander) the money that these entities had advanced to compensate ACS, the promoter of the warehouse. This forced the Executive to put into debt to the State to face this compensation.
In recent days, several members of the socialist part of the Government have put the fiasco of the hydroelectric canon as an example of the risks of facing the current crisis of electricity prices by decree, as United Podemos has requested. “When you insist on taking measures against the law, you can find what you are not looking for and that generates a huge impact on the economy, on investor confidence and, of course, on the bill that consumers pay. “Ribera said in his last parliamentary appearance.
For his part, the general director of the Institute for Energy Diversification and Saving (IDAE), Joan Groizard, appointed by Ribera, also warned a few days ago of how “kicking forward” through the decree to solve a problem can then come up with “surprises”.
“When someone proposes simple solutions, what they do is aggravate the problem,” said the Minister of the Presidency, Félix Bolaños, alluding to a return that, he recalled, is equivalent to more than 1% of GDP. The amount exceeds the extra spending on pensions for each point of rise in inflation, which has escalated due to the rise in electricity to its highest in almost a decade.
The fee for the use of inland waters levies 25.5% on the turnover for the production of plants with a capacity of at least 50 MW. It was launched by Minister Soria to tackle (as announced at the time) the so-called tariff deficit, the difference between income and regulated costs of the electricity system. But the lien would end up annulled by the Supreme Court in a ruling handed down on April 15.
Although at first it was interpreted that the decision would only affect the first two years in which the fee began to be collected, 2013 and 2014, as it is retroactive, the Government’s interpretation is that the sentence requires the return of everything collected because the Executive of the PP forgot to modify the Regulation of Hydraulic Public Domain, which indicates that a concession can be modified only “if the petitioner accepts the proposed conditions”, which did not happen.
To those 1,624 million, which correspond to the 2013-2020 period, it would be necessary to add the interest generated and what was collected in 2021. In addition, the Cuenca agencies have already spent, at least, 2% of the amount collected in the ordinary management itself of the tribute “and they should be compensated for it”, according to the Ministry, which has described this situation as a “poisoned legacy”.
The canon is linked to the hydroelectric production of each plant. This generation source, which uses a public good, has been at the center of controversy due to its role in the wholesale electricity market: it was the great dominator in August, the most expensive month in history until September, taking advantage of high gas and carbon prices, which it does not face. The Government has proposed to cut the extra income of these plants and the nuclear ones due to the increase in cost of CO2. The bill, widely contested by companies, invites companies to renounce their concessions if they believe that the cut will not make the dams profitable.
In recent weeks the Ministry has opened information files for the “scandalous” emptying of several swamps, in the expression of Ribera, which is going to regulate “immediately” to put a stop to the discharge of these infrastructures, within the framework of the package of measures that it prepares the Executive to try to cope with the escalation of the wholesale electricity market. Ribera has also put on the table that a public company manage hydroelectric concessions that expire.
Some power companies have already demanded that part of the canon money be returned to them. This is the case of Endesa. On May 21, he requested “the return of the settlements for the years 2013 and 2014, corresponding to the fee for the use of continental waters for the production of electrical energy, amounting to € 3,355,839.79”, explains the Confederation del Guadiana in their 2020 accounts. None of these companies have included in their semi-annual accounts allusions to the Supreme Court ruling that they must return all proceeds.
The power companies tried to knock down the canon in the EU Court of Justice, which endorsed its nature as an environmental tax. But the European court did not enter into whether or not it contravened other Spanish regulations. Now it turns out that it could not be applied if the electricity companies did not agree to accept the change in the concessions, as determined by the Supreme Court when estimating the Unesa resource. The employer’s association, renamed Aelec a few years ago, has as its general secretary Pascual Sala Atienza, son of the jurist Pascual Sala Sánchez, former president of the Supreme Court, the General Council of the Judiciary and the Constitutional Court.