Legal Status - DECEMBER 2020
Employment: Developments in Teleworking Regulations.
Energy: New economic regime for renewable energy - auctions.
EMPLOYMENT
Developments in Teleworking Regulations.
DAVID GARCÍA-FELIU
Senior Associate
On 15 October 2020, the new Royal Decree-Law 28/2020 on distance working came into force, allowing companies to adapt to the current situation generated by Covid-19 in the field of employment.
Professional conditions in distance work must have the following characteristics:
1. Voluntary:
t must be voluntary in nature for both employees and employers and requires the signing of a distance working agreement between the two.
2. Reversibility:
Employees may decline to work remotely, and also change their decision to work remotely instead of working onsite. The decision is reversible for both the company and the employee. The exercise of this reversibility will be carried out according to the terms established in the collective bargaining agreement or, failing that, in those established in the distance working agreement.
3. Equal treatment:
Teleworking shall not cause any harm to employees who adopt it, and shall be based on equal treatment and opportunities, as well as on non-discrimination for employees who carry out their tasks remotely, these having the same rights as the workers in the company’s work centre.
General aspects
Royal Decree-Law 28/2020, on distance work, establishes that in order for distance work to be carried out, a written agreement must be formalized between the company and the employee, before the distance work begins.
The content of this distance working agreement must compulsorily include the aspects referring to the distance working mode provided for in Article 7 of the Royal Decree-Law on distance working. Among them, the provision of a financial compensation to the employee for the carrying out of his/her functions from his/her home.
Royal Decree-Law 28/2020 on distance working establishes that for employment contracts concluded with minors and for training and apprenticeship contracts, at least 50% of the provision of services must be carried out onsite, without limiting online development, the theoretical training linked to the contracts, and apprenticeship.
Working conditions of employees working remotely
With regard to working conditions, Royal Decree-Law 28/2020, on distance working, includes between Article 9 and 19 (both inclusive), the rights enjoyed by employees working remotely, which are guaranteed by the legislation and the Collective Bargaining Agreements applicable to employees on the company’s premises. This form of organisation does not imply any change in the employee’s legal status, nor does it constitute a cause in itself for modifying working conditions or terminating the employment relationship.
Royal Decree-Law 28/2020 also makes express mention of their right to training and a professional career, to be provided with the means and tools to carry out their activity, and to pay and compensate for expenses and equipment.
Other aspects which Royal Decree-Law 28/2020 also covers are flexible working hours appropriate to the agreement and their correct recording, as well as the right to digital breaks outside working hours.
Flexibility in work organisation for companies in distance work
The impact of new technologies on work is today a key tool for reducing the impact of the restrictive measures on productive activity arising from the Covid-19 pandemic and these have strengthened companies for greater efficiency in the face of this new scenario.
In this regard, the virtualisation of labour relations has led to the detachment or relocation of the worker from a specific space and time, and this brings benefits such as greater flexibility in the management of working times and breaks; more possibilities for self-organisation, with positive consequences for the reduction of costs in offices and cost savings in travel; in productivity and rationalisation of timetables; commitment and experience of the employee; attracting and retaining talent and reduction of absenteeism.
In addition to this, the employer must ensure the employee’s compliance with their work obligations and duties and determine the instructions necessary to protect the company from possible security breaches within the framework of data protection legislation.
For all these reasons, Royal Decree-Law 28/2020 on distance working aims to combine the needs for flexibility and security between companies and employees.
It thus highlights the important role of collective bargaining in the field of distance work, with express reference to the definition of tasks and activities suitable for it, as well as the criteria of preference in access to this modality, the exercise of reversibility, the financial rights associated with this form of work and organisation, and the important content of the distance work agreement to be made between worker and employer.
December 2020
ENERGY
New economic regime for renewable energy - auctions.
IGNACIO PUIG
Senior Associate
On 5 November 2020, Royal Decree 960/2020, of 3 November, came into force to regulate the financial regime for renewable energies for electricity production facilities (hereinafter “RD 960/2020”). It establishes a new payment framework for the generating of electricity from renewable energy sources: the Financial Regime for Renewable Energies (Régimen Económico de Energías Renovables) – “REER”.
The objective of the REER is to offer a stable framework to attract investment, facilitate financing, and promote economic activity throughout the country’s renewable energy value chain.
The REER will be granted through competitive tendering procedures; that is, with auction mechanisms that will seek to guarantee its open, transparent, competitive, profitable, and non-discriminatory granting.
1. Key Aspects of RD 960/2020
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It introduces a new support system for renewable energy projects (REER), an alternative to the physical PPAs and based on the recognition of a fixed price for energy (with potential corrections depending on the operation of the market) during the period of time to which it applies, which cannot be updated.
- It proposes an auction calendar for a minimum period of 5 years.
2. Facilities eligible for REER
Facilities producing electricity from renewable energy sources included in category b) of Article 2.1 of Royal Decree 413/2014, of 6 June, shall be eligible for REER when new investment is made after the holding of the auction. Such installations can include more than one type of technology, as well as storage systems. Operators of facilities covered by the REER cannot declare physical bilateral contracts (PPAs) with such installations.
The investments will include both those cases in which a new facility is produced and those involving an extension or modification of an existing facility (for the part corresponding to the new investment and subject to the provisions of the Ministerial Order approving it).
3. Operation of the auctions
a. Product to be auctioned
Under the terms of the REER, the following will be auctioned: the installed power, the electrical power, or a combination of both. The product to be auctioned will be defined by the Ministerial Order regulating the auction mechanism, the bid variable being the price per unit of electrical energy expressed in euros/MWh, to two decimal places.
The resolution calling the auction shall determine the quota of product to be auctioned and set a maximum price (reserve price) and may also set a minimum price (risk price).
b. Participation in the auction
Those interested in participating in the auction must present the guarantees for participation in the auction to the administrative body required by the terms of the implementing regulations. Prior to the holding of the auction, the interested party may withdraw their application, in which case the guarantee for participation in the auction will be cancelled. Bids whose value exceeds the reserve price and those with a value lower than the risk price (in the event that it has been determined) shall be discarded.
c. Selection of bids
This will begin with the lowest value offer until the quota of the auctioned product established in the resolution of the call for the auction is reached. The bids thus selected will be considered successful, depending on the award price of each installation.
RD 960/2020 also allows for additional criteria to be established for certain projects with specific characteristics, such as small-scale projects, demonstration projects and those of energy communities.
d. Results of the auction
The power or energy allocated to each participant and its pay-as-bid price, which will correspond to its financial offer and cannot be updated.
A distinction will be made between production technologies on the basis of their technical characteristics, manageability levels, geographical location criteria, technological maturity, size, or innovative components, among other factors.
4. Electronic recording and administrative procedures relating to the REER
RD 960/2020 establishes the REER's electronic register, as well as its organisation and operation. The purpose of this register is to grant and adequately monitor the registration of facilities that are candidates for the scheme, which will first be registered in a pre-allocation state, and then in an operational state.
In order to register in a pre-allocation state, it will be necessary to present the receipt from the General Deposit Fund to the Directorate General for Energy Policy and Mines, accrediting that a financial guarantee has been deposited for the amount specified in the Ministerial Order regulating the auction mechanism. The first Order (Ministerial Order TED 1161/2020) has set the financial guarantee at 60 euros/kWp.
5. Ministerial Order TED 1161/2020
On December 4, 2020, the first measure for the implementation of RD/960/2020: the Order TED 1161/2020 was published to regulate the first auction mechanism for the granting of the economic regime for renewable energies and establishing an indicative timetable for the period 2020-2025.
It establishes the first REER auction mechanism, as well as the regime that will be applied to the contractors. It is worth highlighting here:
(i) Financial guarantee: 60 euros/kW as a prerequisite for participation in the auction for the power for which a bid is to be submitted and, subsequently, registered
(ii) Product to be auctioned: installed power, as defined in Article 3 of Royal Decree 413/2014, of 6 June
(iii) Scope of application: facilities for the generation of electrical power from renewable energy sources included in category b) defined in Article 2.1 of Royal Decree 413/2014:
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they can include one or more types of technology
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they can be new facilities, extensions, or modifications of existing facilities (a period of at least 15 years must have elapsed since the date of final registration of the existing facility in the RAIPREE)
- they can have a storage system, if it is used for the exclusive storage of the energy produced by the facility
(iv) Cost attributable to the organization of the auction: 0,08 euros/kW, supported by those participants who are awarded the contract according to the amount of product awarded, the cost being 0,08 euros/KW, and received by the entity managing the auction
(v) Maximum of sections per offer: 100 sections, and each section will include the power offered in that section (expressed in blocks of 1 Kw), the price offered for the energy (expressed in euros/MWh with two decimals), and an identifier relating to the divisibility of the section;
(vi) Request of identification of the facilities: within six months from the date of publication in the BOE (Official State Gazette) of the resolution of inscription in the electronic Registry of the REER in pre-allocation status
December 2020
LITIGATION
Recognition of foreign judgements in Spain.
ALEJANDRO FERREIRA
Senior Associate
In Spain, the procedure for the recognition of judgements issued by courts in foreign countries differs depending on whether or not the country in question belongs to the European Union.
1. Judgements issued by the Courts of the European Union Member States
As a rule, the recognition and enforcement of judgments in civil and commercial matters applies automatically between all member states of the European Union.
In other words, all judgments that have been given by a court in one Member State will be automatically recognised in the other Member States without the need for any procedure.
Such recognition is based on the rules contained in Regulation No 44/2001, which provides that all judgments given in a Member State and enforceable there are to be enforced in another Member State when, on the application of any interested party, enforcement has been sought in the latter.
Their recognition will always be carried out at the request of the interested party before the competent judicial body, which in Spain will always be the Juzgado de Primera Instancia (lower court) or the Juzgado de lo Mercantil (commercial court), as the case may be. A standard form is required for this purpose.
All the above is equally applicable to arbitration awards issued in member countries.
2. Judgments issued by Courts in countries that are not members of the European Union: the Exequatur.
The recognition and validity in Spain of judgments issued by courts of states not members of the European Union require a procedure recognised in the Spanish legal system called Exequatur.
Exequatur is the procedure by which a Member State verifies that a court judgment issued by a court of another State which is not a member of the European Union meets the necessary requirements for recognition and homologation in that first State.
In Spain, in particular, it is a legal procedure designed to recognise the validity of a judgment given by a foreign court and thus to enable it to be enforced in Spain.
For a foreign judgment to be enforceable in Spain the following conditions must be met:
a) That the international treaties signed by the countries involved - the issuer of the judgment and the country in which it is intended to be enforced – so provide.
b) That the principle of reciprocity between both countries is recognized; that is, that both countries can mutually recognise the validity of the judgements issued by the other country.
c) That the judgment fulfils the following requirements:
- that it has been issued as a result of the exercise of a personal action
- that it has has not been issued in absentia
- that the obligation to be performed is lawful and compatible with Spanish law
Therefore, all those individuals or legal entities, national or foreign, who are interested in complying with a foreign judgment in Spain, or vice versa, may request the Exequatur.
Finally, it should be noted that the Exequatur cannot have the objective of entering into the substance of a judgement or to modify it; it is a procedure established solely for the purpose of recognising, validating and enforcing that judgement before the competent judicial body according to the subject matter, whether civil or commercial.
December 2020