On 12 January 2024, the resolution of the Congress of Deputies of 10 January 2024, ordering the publication of the agreement on the validation of Royal Decree-Law 8/2023 of 27 December, was published in the BOE.
Royal Decree-Law 8/2023, of 27 December, adopting measures to address the economic and social consequences arising from the conflicts in Ukraine and the Middle East, as well as to alleviate the effects of drought (hereinafter "RDL 8/2023"), among the various regulations it introduces, includes new developments and modifications in energy matters. The following relevant developments can be highlighted among these measures:
Extension of milestones for the processing of renewable electricity generation facilities
As already known, the Royal Decree-Law 23/2020, of 23 June, approving measures in the energy sector and other areas for economic reactivation (hereinafter "RDL 23/2020"), establishes a mechanism for compliance with administrative milestones, whose non-accreditation within the established deadlines entails the automatic expiration of the access and connection permits granted.
By means of RDL 8/2023, the term to obtain the administrative construction authorisation is extended by 6 months for those generation facilities that had obtained access and connection permits after 31 December 2017 and prior to the entry into force of this regulation.
Thus, the deadline for the accreditation of this milestone increases from the 43 months provided for in Article 185 of Royal Decree-Law 5/2023 of June 28, to 49 months, for those facilities that obtained access and connection permits between 31 December 2017 and the entry into force of RDL 8/2023 on 29 December 2023.
On the other hand, RDL 8/2023 provides, for those developers who had obtained the access and connection permits in the period between 31 December 2017 and 29 December 2023, the possibility of extending the term to obtain the definitive administrative operating authorization, up to a maximum of 8 years.
In any case, such extension shall be conditional upon the following conditions being met:
The application for the extension within a period not exceeding 3 months from the entry into force of RDL 8/2023 or from the date of obtaining the administrative authorisation for construction, whichever is later.
The inclusion in the application of the specific semester of the calendar year in which the installation will obtain the administrative construction authorisation, which must be within this 8-year period. The application must also include a commitment to expressly accept the impossibility of obtaining both this authorisation and prior or definitive registration in the administrative register of electricity production facilities before the start of the semester indicated.
The Administration must take a decision within a period of no more than 6 months, otherwise the promoters may consider the application to have been rejected by administrative silence. The decision must expressly state the maximum date by which the facility must have operating authorisation. The setting of this new deadline prevents the granting of provisional or definitive administrative operating authorisation, and prior or definitive registration in the administrative register of electricity production facilities, before the start of the semester committed to in the application.
Both the 49-month and 8-year periods will be calculated:
i) from 25 June 2020 (the date set by RDL 23/2020 for the computation of the deadlines for meeting the milestones) if the access permits were obtained prior to that date and after 31 December 2017; and
ii) from the date on which the permits were obtained, if that date is after 25 June 2020 and before 29 December 2023.
On the other hand, in relation to compliance with the milestone relating to the definitive administrative operating authorisation, RDL 8/2023 establishes, for those cases in which the transmission and distribution grid operators have not obtained definitive operating authorisation for the substations to which the generation facilities are connected, the milestone will be considered to be met with the accreditation of having obtained provisional operating authorisation for tests, provided that this authorisation covers both the generation facilities and the evacuation infrastructures up to at least the last 100 metres to the transmission or distribution substation where their connection point is located.
Finally, Article 1 (1) of RDL 23/2020 is amended, establishing a maximum total processing period of 9 years to meet the milestone of obtaining the definitive operating authorisation for pumped hydro and offshore wind power production facilities.
Measures concerning self-consumption
Royal Decree-Law 6/2022, of 29 March, agreed to release 10% of the access capacity to the transmission grid nodes reserved for tendering to be granted to facilities associated with a modality of self-consumption that met certain criteria.
RDL 8/2023 extends this release to all transmission grid nodes that have been reserved for tendering since the entry into force of the aforementioned Royal Decree-Law 6/2022, as well as to all those that are reserved for tendering in the future for two years after its entry into force.
Measures relating to demand access
Among other issues, RDL 8/2023 establishes that in order to request access and connection of demand facilities financial guarantees must be deposited, in the case of demand facilities whose connection point has a voltage equal to or greater than 36 kV, for an amount equivalent to 40 €/kW requested (in storage facilities, 20 €/kW requested).
The guarantee will be cancelled when the applicant enters into an access contract for a contracted capacity in the P1 period of at least 50% of the access capacity granted. If such a contract is not concluded within five years of obtaining the permit, the access and connection permits will automatically lapse and the guarantees provided will be forfeited.
RDL 8/2023 also establishes the need to call for tenders for demand access capacity at transmission grid nodes with voltage equal to or greater than 220 kV, when there are several requests for access to the same point on the transmission grid and they cannot be met simultaneously. The criteria to be used for the allocation of access capacity will be regulated by Ministerial Order.
Measures relating to the development of a hydrogen network
RD 8/2023 represents a small step forward in the development of a hydrogen network in Spain, empowering -provisionally - the entities that have the status of natural gas transmission network managers in accordance with the provisions of Article 63 bis of the Hydrocarbons Law to: i) draw up a non-binding proposal for the development of the hydrogen backbone infrastructure, with a ten-year horizon; and ii) act as representatives in the European Network of Network Operators for Hydrogen.
Also on a provisional basis, and subject to the agreement of the Council of Ministers, the operators may carry out the functions of developing the hydrogen backbone network within the scope of projects of common European interest, always in compliance with the unbundling regime.
Measures concerning reversible pumped-storage hydroelectric power plants
RDL 8/2023 amends the Water Law to introduce hydroelectric storage in the order of preference of water uses, giving it third place, ahead of industrial use for electricity production. Consequently, concessions for reversible hydroelectric power plants granted before 29 December 2023 will be considered as hydroelectric energy storage facilities.
In the case of repowering existing reversible hydroelectric power plants, concessionaires may obtain a new concession for the same use and purpose, which may only be granted for a term sufficient to amortise the investment made, which may not exceed 50 years.
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