Spain’s Infamous “Sun Tax” – Would it stand the Test of Legality ?

Spain has imposed a support levy on the producers of solar energy in order to deflate the looming deficit in the energy sector of the country. The tax is supposed to help the government in cashing upon the growing demand for solar energy in order to run the government operated grid.

Spain’s energy sector has hit by two pronged attack

  1. The decline in the investments in renewable energy sector
  2. The rising rate of import of energy

In 2014, the government of Spain had withdrawn the subsidies from the renewable energy sector, a move which was a shift from the “Feed-In Scheme” followed by most of the European countries. Under this scheme, the producers of renewable energy are given subsidies in the form of technology cost cuts and minimum support revenue. The withdrawal was later backed by the Supreme Court which upheld the constitutionality of the same and left the renewable energy producers knocking the doors of EU and other arbitrations.

The second problem arose for the fact that Spain imports 80% of its energy supply, expending 40.5 billion Euros annually which is 4.5% of its GDP. This trend became even more unfortunate by the growing rate of renewable energy consumption in the country. People who installed solar panels not only consumed energy by themselves but also saw it as a commercial opportunity to sell the surplus electricity produced from such panels. This further concentrated the fiscal burden on the government and the tariff deficit soared to 34 billion Euros; even when 95% people still receive electricity at Tariff of Last Resort (TLR) rate which is governed by the government.

It is in this backdrop, that the Spanish government came up with a tax on Photovoltaic System (PV) owners. The key features of this policy are:

  1. PV systems up to 100 kW are prohibited from selling electricity. Instead, their owners are required to donate the extra electricity to the grid for free
  2. For PV systems up to 100 kW, the owner of the installation must be the owner of the contract with the electricity company. Moreover, before installation, permission must be sought from the electricity supplier and the Spanish government
  3. Community ownership is prohibited altogether for all sizes of self-consumption systems

 

After establishing the law, what comes next is the test of legality where the piece of legislation is made to stand the principles of rule of law, non-arbitrariness and fairness. Likewise, the sun tax needs to pass the legality test vis-à-vis Spanish Constitution and EU Directive on Renewable Energy.

The constitutionality test of sun tax attracts two provisions of the Spanish Constitution – Article 9.3 that establishes principle of legal certainty and non retroactivity of punitive provisions and Article 106.2 that puts an obligation on government to compensate individuals for losses suffered by them due to administrative action. Even though the retroactive application of PV Systems tax does violate Article 9.3 by setting a punitive provision even for those persons who had already established the PV systems, the Supreme Court’s multiple rulings denying the unconstitutionality of cut in feed-in tariff (subsidy to renewable energy sector) makes it near impossible for the Constitutional Court to have a different interpretation of Article 9.3 vis-à-vis retroactive taxation. Moreover, proving legal uncertainty in this matter would be difficult as the Electricity Sector Law 54/1997 authorizes the government to modify its energy policies as long as the modifications are objective and non-discriminatory. So the only way to move ahead with Article 9.3 is to show how the aforementioned tax does not pass the test of objectivity and non-discrimination as laid down in the Electricity Sector Law for it does not give any reasonable explanation for differentiating between the class of PV Systems Operators and other electricity suppliers.

The major bottleneck in moving Constitutional Court to strike down PV Systems tax as unconstitutional is Article 162 of the Constitution. Since the sun tax is a Royal Decree-Law (as it was ratified by the Parliament), as per Article 162, the appeal for unconstitutionality of such law can only be moved by the Prime Minister, President, Ombudsman, 50 members of Parliament or 50 members of senate. It disenfranchises the Union of PV Systems owners, people who are most severely hit by this law, to move the Constitutional court for the ultimate remedy. The only way through which they can approach the court is when the actual application of the law, for instance deciding the rate of tariff, causes some discrimination for which an appeal can be filed only to an ordinary court asking it move an appeal of unconstitutionality in the Constitutionality. This indirect procedure is highly uncertain and depends on the mercy of the ordinary court to endorse an appeal to the Constitutional court.

Since it is very difficult to strike down the PV Systems tax as unconstitutional, an effective remedy can be to approach court under a liability suit asking for compensation for the loss caused by an administrative function. However, even in that case the loss has to be real, concrete and of economic value.

Other legality test for the policy is the one posed by EU Directive 2009/28/EC. Clause 8 envisages a mandatory target of 20% contribution from renewable energy in the total energy production by member states by the year 2020. In addition to this, Clause 19 asks the member states to constantly evaluate energy policies and ensure that they are aligned to meet the aforementioned target. The sun tax policy is anything but the compliance of both of these clauses. Therefore, as of present, there are 6 petitions pending in the EU court challenging the cut in feed-in tariff and 9 petitions challenging the sun tax.

Another challenge under International Law comes from the Energy Charter Treaty to which both Spain and the EU are signatories. Article 10 of the Treaty obliges the signatories to provide fair and equitable treatment to the investors of the other contracting states, to respect the obligations entered into vis-à-vis contractors, and not have a differential treatment between foreign and domestic investors. Moreover, International Arbitration Tribunals have upheld the protection of legitimate expectation of investors to have a stable and predictable legal and administrative framework. This Article is largely in line with general protection guaranteed under Article 9.3 of Spanish Constitution. Since, this policy is already shown to be violative of Article 9.3 of Constitution; it would be safe to call it violative of Article 10 of the Treaty also. Now that the discrimination has been established, the investors can move either domestic courts or international arbitrations to challenge the discriminatory policy under Article 26 of the Treaty. Pending arbitrations such as EDF v Hungary and Vattenfall AB, and Vattenfall Europe Generation AG & Co KG v Germany, show that Article 26 can be applied in EU member states also.

 

It is quite obvious that the tax on PV Systems will have an adverse effect on the cause of environment protection. At the post COP 21 era, where commitments have been made to move towards greener and alternative sources of energy, this move comes across as a move backwards.

Instead of taxing renewable energy to support conventional energy market, the government of Spain should have accepted the voluntary or obligatory quota scheme as followed in Sweden. Under this system, producers of renewable energy are given certificates for every unit of electricity they produce. Moreover, in some areas the electricity supply chains are obligated to take a quota of electricity from renewable energy producers. Therefore, the producers of solar energy are able to sell electricity in energy market at equal price and have full access to the demand. This system ensures balancing of electricity consumption and production on the basis of market forces of demand and supply and either way the energy sector market is benefitted with revenue. This scheme will also reduce tariff deficit for the system ensures reduction of support cost as it is operated through competition.

Since there is abundance of sunlight in Spain and people are also choosing renewable sources of energy, the abovementioned scheme is a much better choice than the sun tax for the former will encourage growing foreign as well as domestic investments in the energy sector, hence reducing the deficit. On the contrary, the sun tax will repel the investors; increase the burden on government to provide support cost for conventional grid energy.

With abovementioned arguments in context, the people of Spain shouldn’t be charged for sunlight, a public resource so central to their cultural and folk practices. I hope the sun would set on the tax and the jubilation would again sing – Sale el sol.

 

Of Lovers Once Here

Just sit back and stare at

What your eyes show you of this world

Of this lagoon,

Of the sky that is on the edge of being delusional.

Just sit back and stare

With your leather satchel by your side

This is not a divided world, This is

What you left for what you have

The time is running, the rain is on its way

Just sit back and stare,

There won’t be much left to see

Vulnerabilities

If I don’t see you at the stretch of my vision,

I hold my back, lean on, and

Let myself lose a little,

I take myself back to that house,

The walls painted with the colours of your joy

And, there I see that old picture,

Waiting for me to clean it off the dust, off the mellow

And the denial.

When your footsteps are no longer to be seen on the ground

Your face is to be seen within,

And the smile,

To be seen on mine.

Isn’t it funny how time never let me have you?

Between all the confusions, chaos, the laughs and cries, those petty fights,

The constant making memories of your presence;

and

The longing and lamenting of your absence;

Between the time too much and no time at all,

I find you.

I find you in the unforgettable moments of self where there’s nothing but freedom,

I find you in voids, in the voices that know no language

When time and destiny takes you away from me, I

I find you somewhere inside me,

Safe,

And nobody can take that away from me.

What It Means to Imagine

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Imagination is the only purpose upon which existence rests. The castles we built first materialise in our heads before turning into stones and cement. Ursula K Le Guin, a thinker of our times and beyond, said  reading is imperative to imagination and reading only happens in the space of intimacy, faith and silence. Learning, says Le Guin, is a form of reading and vice versa. She further adds that imagination assumes much more importance in this post-capitalist world where every innovative human thought has been reduced to commodification for it to participate in the operational profit making process. Imagination, hence, needs to happen in communities and companionship; blossoming not on confrontation of ideas but on compassion of thoughts. 
 
We see valuation of imagination in the works of one of the greatest existential philosophers – Schopenhauer. He says that the genius is the one who differs not only in degrees of excellence but also in vision. Therefore, a creative genius is often subjected to condemnation or ridicule by contemporaries
 
Another fascinating mouthpiece of soaring imagination would undoubtedly be William Blake and his illustrations in John Milton’s Paradise Lost. Subjected to a life of abject poverty, Blake believed in an abstract idea of spirituality which knew no reverence other then the reverence of soul’s self transcendence. Blake’s borderline agnosticism was not merely a political stance but a major imaginative flight. The idea of creating self cosmogony and one’s own definition of faith and spirituality is a thought that is still under a process of evolution in the 21st century, and a thought that we need today more than ever. 

Fangs

They draw me near,

Shells shoot through my brain, I see

no one but the light,

I see myself dilating, my abstractions fixating

Walks away from the danger, and still

I walk into it, Oh why

no one sees me like I do myself

Holding visions as reflections to oneself, I daunt

a picture of that world to my mind

A picture, so blurred,

It never makes it clear until its over

Look here I’m standing,

Smeared by the signs of my loss, bruised

by the spades of apathy, like waves,

timing through the corpse that I’ve become

So, there it is,

Withdrawing itself from the mess that I’ve become

Don’t, just don’t

Hold me when I’m crying,

Lamenting, mourning the grace of being myself again

Drag myself to the shores of unbecoming

Thinking I’ll never see them again

Never ever I walk,

To the lights,

To,

Those,

Fangs

Cezanne’s Large Bathers: A Commentary on Neurological Perception of Reality

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The Large Bathers by Paul Cezanne (1898-1905)
Famously termed as the father of Modernist Art, Cezanne through his seminal work named Large Bathers, captured the historical shift of aesthetics in European art. A painting that took seven years to complete and was in process of being completed till Cezanne’s death, has become a celebratory piece that represents the genesis of modernism and the revival of impressionism in European aesthetics. 
1. Art Appreciation 
The painting has been made by keeping the geometrical construction in mind which was quite prevalent in the perspective art of renaissance; especially the use of triangles. We can see the division of painting into three triangles. The first two triangles show the groupings of six women on each side of the painting and the third triangle is the larger figure that contains both these triangles as well as the background of the painting and meets at the point where the two trees meet in the sky. Such geometrical construction is used to create balance in the artwork. 
 
We can see the reflection of Classicism here which is very similar to the famous work named Diana and Actaeon by the late renaissance Venetian artist Titian. In both these works there has been attempt to visualise human nudity in public space by making human body a primary language of expression (a heavy characteristic of the entire Classical Art). Even if we focus on the two standing women in the picture, the one in the left (woman striding from the tree) looks similar to the 18th century sculpture of goddess Diana and the one in the right, with the positioning of her knees, shows uncanny resemblance to the ancient sculpture of Venus de Milo. 
However, this is also a major shift from Classicism for its lack of detailing in the depiction of human body. Now this is where this painting becomes fascinating. 
 
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Diana and Actaeon by Titian (1556-1559)

 
Inspired by the Impressionist school of art that focuses on elements of art such as light and colours rather than objects, Cezanne here brings back our focus on the fact that it is the element and not the object that is the subject matter of this painting. One can say that this is the purest form of commentary on Classicism where the Classical fascination and technique is used to make something which is a complete deviation from the Classical school. This is evident from the bodies of the women in the painting. Instead of showing sensuality, there is heavy abstraction. So much so that the white marks on the bodies are nothing but the display of the canvas itself for the painter did not choose to paint these spaces. By doing so, he takes out attention from the beauty of a woman’s body to the shapes and forms that represent it (elements of art). 
 
Cezanne’s focus on abstraction is evident from the figures on the two extreme ends of the painting where these figures are not even completed and are represented in a sketched form. Also, two figures in the background,  a man and a horse, are also represented in the most abstract form possible, thereby restricting our appreciation to the elements such as colours (beautiful shades of blue and orange) and shapes. The use of flat strokes to depict the sky and the leaves, also weighs towards impressionism and abstraction. 
 
2. Art Philosophy and History 
The most striking theory of this painting is its heavy commentary on movement. The mixture of Classical subject matter and Impressionist technique shows the historical shift in the European art practice of the period – which is a shift from perspective realism of renaissance to the abstraction and use of elements of art. If we look into the painting, we can see that it is divided into three parts:
First part is the representation of Classical art by the depiction of nude women bathing in public.
Second part is the river that separates the the first part and the background. 
Third part is the background where we see a man moving away from the painting to another direction. 
It is said in one of the interpretations that the man in the background is Cezanne himself and his movement depicts an act of moving away from the traditions of Classical art to a practice that is more elemental in nature. Another example of movement, is the swimmer, who also being distanced from the first part, is shown in moving abstraction. 
 
The other theory that is vocal in this painting is that of alienation. At least six women in the painting are looking away from the audience; and the ones that are staring within the space of painting, have blurred faces. In addition to this we can see spaces in the figures which are left white and shows the bare canvass, which to much of conspiracy theories, can be associated with an external force interrupting the artwork or the purest expression of nudity – which is, no colour at all! Well, all this representation of alienation is there because Cezanne was heavily influenced by the Impressionists. However, it also creates an element of chaos and spontaneity in the painting. Something which takes me to this idea of Dissolving and Becoming
 
The burring figures in the painting as well as the use of flat strokes give this impression that either the scene is captured during its dissolution or during its becoming. This Dissolving-Becoming dichotomy is synonymous with the process through which we perceive reality.  The velocity in which the mind captures the everyday display of reality and processes it is so fast and chaotic that we lose out on understanding or knowing that exact moment when perception takes place. That exact moment when external signals are processed into knowledge. And this is precisely what can be read in the disturbances of this painting. If we refer to my previous piece on Alan de Button’s Art as Therapy, we can bring his idea of the role of art in creating emotional equilibrium to this painting. Cezanne’s construction of chaos makes the viewer use to neurological process of perception to understand the process of perception itself – which is an affair so fast that it reduces the reality to indiscernible representations. It is this understanding of the role of art that not only designated Cezanne as a father of modernism but also made his works an inspiration for future schools such as cubism. 

Ideogram of King Narmer: Pondering Upon the Conflict of Art Predates Language

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Palette of King Narmer (c. 3000 BCE)
This artwork is one of the earliest example of an ideogram; which refers to the representation of an idea through a symbol. The present context has created watertight demarcation between language and art. However, what such distinction fails to understand is the foundation of both of these modes of communication – the need of a living being to externalise an idea or thought by the phenomena of information.
In this clay tablet we see the King Narmer preparing to punish a deviant with a stone dagger. The relevance of this artwork in this context is not defined by the story it depicts but by the top-most panel which has a small inscription that tells us a lot about Egyptian language. The inscription is a pictorial/symbolic representation of a fish and a chisel. Fish translates as Nar and chisel translates as Mer in ancient Egyptian language, thus, giving us the name of this King Narmer. This practice blurs the distinction between art as representation and art as language. Even the artistic analysis of the tablet shows the King adorning symbols of both North and South Egypt showing a possible unification of the region. The fact that a single artwork can use representation as both art and language is extremely fascinating for those who like to question the structuralism and linearity of language and formalism of art.
However, the question that can be asked here is whether such hieroglyphic inscription is an example of something called ‘art’? There are responses in both favour and against of this hypothesis. Those in favour might argue that the entire inscription cannot be reduced to an example of language only for the symbols depicted in it do not merely work as language tools to make a certain word but also have meanings in themselves. For instance, the Scorpion Mace-head at the upper end of the tablet is not used as a phonetic alphabet to depict something else but is used as a symbol that represents Egyptian kings. On the other hand, those who argue against it bring up the very purpose or nature of an artwork that is to create some sense of emotional response to a piece which is not expected towards the normal activities of life. For instance, the depictions of fish and chisel are just the use of phonetics that make these depictions merely tools of a language and not representational art symbols in themselves.
Joaquin Torres Garcia in his ideogrammatic theory says that in ideograms, art becomes the metaphysics of the purity of classical symbols. It is metaphysical because it is made to testify the truth of timeless, unlocalisable and spaceless essence of universal pictorial depiction of humanity. He called this process Constructive Universalism for every depiction is an effort by a man to do abstraction of phenomena around him. Hence, he becomes an Abstract Man. To the contrary, J Marshall Unger in his Myth of Disembodied Meanings, where he responds to the Chinese pictogram language, he argues that no symbol or sign can express meaning independent of language because which cannot be communicated in a language is not a meaning – for it won’t create any communicative map between the sender and receiver of symbols.
Whatever side we take, it is impossible to deny the purpose that either language or art serve through this tablet – information communication. Every mental object or thought is broken down into conceptual chunks. These chunks are then externalised, that is put out in space beyond our own body, in forms of signals. These signals are in the forms of sounds, actions and sometimes even both. Therefore, both art and language become parts of this representational system of information. It is thus quite fascinating to see how a human urge to express itself is so profound that it not only breaks barriers of representational systems such as language but also keep on discovering new ones, such as art. This is precisely the reason why both language and art have witnessed this commonality that refers to their non-static and ever evolving nature.