The social bonus of the electrical is discriminatory as it is being applied and contrary to European legislation, but the lack of time limit and the absence of countervailing measures that characterize it is adjusted to Law.
This this has been estimated at this Thursday, the Court of Justice of the EU by responding to a series of questions referred for preliments sent by the Spanish Supreme Court.
In December 2014, E.on Spain (currently viesgo energy infrastructures) filed with the high court a resource against the Royal Decree of the Government that fixes the percentages of distribution of the financial amounts of the social bonus, which is the compensatory discount that can be
Access the most vulnerable homes, for social or economic issues, on the receipt of light.
The Supreme estimated the appeal by considering that it was incompatible with the European Directive, but the General Administration of the State filed another Amparo Resource before the Constitution, which in turn estimated it, annulled the sentence for violating the right to a process with all the
Guarantees, since the Supreme had not consulted with the Tjue the possible doubts and incompatibilities of law.
The Supreme opted to consult with Luxembourg and the Community magistrates have pronounced today.
The main doubt is whether, with the European Directive in hand, it is legal that the financing of the Social Bonus becomes recently on some agents of the Electric System (“the matrices of the Groups of Societies or, where appropriate, companies that developed
simultaneously the production, distribution and marketing activities of electricity “) when” some of these obligated subjects have very little specific weight in the sector as a whole, while exempting from such burden or business groups that may be in better
Terms of assuming that cost, either by its turnover, already because of its relative importance in any of the activity sectors or because they develop simultaneously and in an integrated manner of those activities. ”
And indeed the TJUE, in its ruling today, declares that the Community Directive is contrary that the cost of financing the social bonus will be raised only in the matrices of the Groups of Companies or the companies that develop at the same time the
Production, distribution and commercialization of electrical energy, since this criterion, chosen by the national legislator, “leads to a difference in treatment among the differentoscies that operate in that market that is not objectively justified.”
The sentence recalls that Community legislation gives powers to the States to impose on the electricity, “for the general economic interest”, public service obligations of various kind, and the Tjue confirms in particular that the obligation to finance the cost in part
of the social bonus is a public service obligation within the directive.
But there can be no flagrant discrimination.
“This obligation consists of two indisolyably linked elements: on the one hand, the discount on the price of electricity supplied to certain vulnerable consumers and, on the other hand, the financial contribution destined to cover the cost of that discount. So, the contribution
Compulsory Financial Controversial, by being an integral part of the public service obligation related to the Social Bonus, is included in the scope of the Directive “, the European judges say.
The second issue has an extraordinary news because it affects the intervention of national governments in fixing the price of electricity.
The sentence recalls that different types of intervention can be admitted if it is fulfilled, among others, “the requirement that public service obligations that are established should not be discriminatory. Thus, the Directive allows the imposition of public service obligations as a general nature
«Electric companies» and not some specific companies.
Therefore, the system of appointment of the companies in charge of public service obligations can not exclude a priori to any of the companies operating in the electricity sector.
Consequently, any possible difference in treatment must be objectively justified “.
The thesis of the State in this issue is that in fact the social bonus has imposed all electrical companies that commercialize electricity in the Spanish market, but the Tjue agrees that “the financial burden of this obligation, which is destined to cover
The costs of the discount on the price of electricity provided by the social bonus, does not affect all those electrical companies, “so urges the Supreme Court to check” if the differentiation made between the companies that must endure the weight of said load
and those who are exempt from it is objectively justified “, since it understands that the criterion of differentiation chosen by the national legislator is not objectively justified”, since it considers that all companies that develop at least one of the aforementioned activities should be
Contribute to finance it.
The Court of Justice emphasizes that, “as indicated by the Spanish Government, the social bonus funding regime results in raising more than 99% of the cost of said bonus in the five most important operators in the Spanish electricity market,
The criterion chosen by the national legislator to distinguish between societies that must be assumed, to a greater or lesser degree, that cost and those that are totally exempted to do so lead to a difference in treatment among the different societies that operate in that market that is not
Justified objectively “.
In the second question referred by the Supreme, the High Community Court estimates, however, that the European Directive is not opposed to the financing scheme of the Social Bonus establishes without a temporary limit and without compensatory measure, since the principle of proportionality can not
Interprete “in the sense that Member States are obliged to periodically reexamine and frequently the financing scheme of a public service obligation” and there is not no requirement on the rules of setting any compensation when it comes to public service obligations.
