The Public Treasury will have to return more than 1,400 million euros to the electricity companies by a decree approved by the PP Government in 2015 that has recently been annulled by the Supreme Court. The High Court has overturned the so-called ‘hydraulic canon’ that the Executive of Mariano Rajoy, with José Manuel Soria as Minister of Industry, implemented to tax the use of water for the production of electricity and to cut (as announced at the time) the called tariff deficit, the difference between the revenues and the regulated costs of the electricity system.
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That estimate of 1,400 million was dropped in Congress on Monday by the third vice president and minister for the Ecological Transition, Teresa Ribera, in the appearance in which she reported the escalation of the electricity bill and refused to intervene in electricity prices. for being contrary, he said, to European regulations, which has led to a new clash between the PSOE and its partners of United We Can.
Ribera stressed that “occurrences” like that decree of the PP now annulled by the Supreme Court can have a multimillion-dollar cost for consumers (as happened with arbitrations for cuts to renewables) or for the public coffers, as in this case.
The figure of 1,400 million, which practically triples the initial forecasts, is a provisional estimate, according to sources from the Ministry for Ecological Transition. And it is a major gap for public accounts. It is equivalent to the additional payment in pensions that, according to Funcas, the State must make for each point of rise in the CPI. In August, inflation has shot up at the highest rate in almost a decade, precisely because of the escalation in light. This Wednesday the wholesale electricity market will beat its third consecutive historical maximum due to the rise in the price of natural gas and the record price of emission rights.
This millionaire return for the electricity companies has its origin in a sentence of April 15, when the Third Chamber of the Contentious-Administrative of the Supreme Court upheld in part the appeal presented by the Unesa electricity industry employer against Royal Decree 198/2015 , of March 23, which develops article 112 bis of the consolidated text of the Water Law and regulates the fee for the use of continental waters for the production of electrical energy in intercommunity demarcations.
This judgment rendered the second transitory provision of the aforementioned decree of 2015 null and void, which established the retroactive nature of the payments for the years 2013 and 2014. When the resolution was transcended, it was interpreted that the refund would be limited to those two years, which It would mean reimbursing the electricity companies about 500 million euros. But in reality, the amount to be returned is much higher and the companies are going to recover everything collected so far, mainly from Iberdrola (a prominent leader in the national hydroelectric plant), Endesa, Naturgy and Acciona. These funds do not go to the electricity system, but to the Public Treasury, which now must articulate the corresponding budget item to return it to the companies, explain sources from the Ministry.
The Supreme Court ruling that upheld part of Unesa’s appeal not only overturned the retroactivity of the fee for the years 2013 and 2014. Also the first additional provision of the decree, relating to the “review of concessions”, which the electricity companies argued in their lawsuit. , implied “an infringement of the principle of normative hierarchy due to regulatory excess,” according to the sentence.
This review was left to chance of what was established in Law 15/2012, of December 27, on fiscal measures for energy sustainability, also approved by the Government of Rajoy, and which established that the concessions “must be adapted to the new regulation “in accordance with the Water Law and the Hydraulic Public Domain Regulation.
The problem, industry sources explain, is that this latest regulation says in Article 116 that a concession can only be modified “if the petitioner accepts the proposed conditions.” In other words, the concessionaire has to give its approval to the change and the Administration, ex officio, cannot review the concession if the concessionaire does not accept it. The Hydrographic Confederations have not reviewed the concessions and have limited themselves to collecting the fee that the Supreme Court has now annulled. Of the total entered, 98% goes to the Public Treasury and the remaining 2%, to the basin organizations themselves.
To those 1,400 million, which correspond to the 2013-2020 period, it would be necessary to add the corresponding interest generated in this period of time and, where appropriate, what was collected in 2021. In addition, it must be taken into account that the Cuenca agencies already they have spent at least that 2% on the ordinary management of the tribute “and they must be compensated for it,” says the Ministry, which describes this situation as a “poisoned legacy.”
The confederations, recognizes Transición Ecológica, “have not reviewed the numerous concessions for hydroelectric use that have been granted in the different basins due to the difficulty of processing these procedures, due to the paradox that the conditions of the concession have to be accepted by the concessionaire. , an acceptance that does not seem typical of a tax whose budget is the realization of the taxable event “.
The canon is linked to the hydroelectric production of each plant. This source of generation, which uses a public good, is at the center of the controversy due to its role in the wholesale electricity market (it has been the great dominator in August, for now the most expensive month in history), taking advantage of the high gas and carbon prices, which it does not face, although the Government has proposed cutting its income and those of nuclear power due to the rising cost of CO2.
In recent weeks the Ministry has opened information files for the “scandalous” emptying of several swamps, in the expression of Ribera, who on Monday announced a legal reform to regulate the discharge of these infrastructures. It has also been put on the table that a public company manage hydroelectric concessions that expire.
The confederations themselves had already been warning in the annual accounts that will soon be published in the BOE that they will have to return that money. This is recognized by the Duero, the one that collects the most for that fee. In his latest accounts he points out that “presumably the amount of the deposit must be returned” in the 2013-2020 period, which amounts to more than 485 million.
The Miño-Sil (CHMS) points out the same: “It could be agreed to return the income received between 2015 and 2020 as a fee for the use of continental waters for the production of electricity,” he warns. “It could be agreed that the return of all income be made by the CHMS, after transferring the funds deposited into the Treasury. Therefore, we are faced with a contingent liability equivalent to the amount paid into the Treasury (362,069,793 , € 05), and a contingent asset for the same amount, “adds the entity, which indicates that” in 2021 the income from this fee amounts to 47,399,925.59 euros. ”
Some power companies have already claimed that part of the money be returned to them. This is the case of Endesa, which on May 21 “has requested the refund 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 Guadiana Confederation in its 2020 accounts.
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. This has been 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.