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In 2014, the government of Spain had withdrawn the subsidies from the renewable energy sector, a move which was a shift from the “Feed-In Scheme” followed by most of the European countries.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

Inline image 4

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. 

Art as Emotional Equilibrium

Divorce in Moscow, 1966 by Eve Arnold
A Divorce in Moscow by Eve Arnold (1966) 

 

This picture is one of the most celebrated examples of how art takes the position of a moral canon to teach us about emotional equilibrium in life. Surfacing in Alan de Botton and John Armstrong’s “Art as Therapy”, this picture shows a couple unconsciously becoming a language of grief in public while being perched on a court bench. While man’s face is lost in obscurity, something that may flow from his complete loss of understanding of this relationship, the woman finds herself under the light and hence becomes the focal point of the artwork. The scarf adorning woman is silently staring at a space within the picture showing signs of being lost in contemplation. The ‘would have been(s)’ of life are coming back to haunt her as she prepares to embrace a so called ‘immoral’ act of taking divorce. This idea of contemplating the choices is the central argument of the artwork; for the representation of oblivion through the figures in the background show the smallness of one’s tragedy in others’ eyes. 
 
Alan de Botton argues that art can be an attempt to encourage our better selves through coded messages of exhortation and admonition, i.e., art can help us in balancing our emotional life by exposing us to emotions that stops us from fulfillment or equilibrium. For instance, a fighting couple may not be able to evaluate the level of grief they might face at the day of divorce and this artwork might make them aware of that. Therefore, art for de Button is important in creating equilibrium in ourselves. 
Moreover, the very fact that the picture lacks normative attitude and shows the scene as it is shows that art doesn’t claim the space of moral canon as understood by the society. Rather, it shows the consequent side of not abiding to a particular moral standard and leaves the choice to the spectator.

On Existence

On Existence

If sub consciousness is to be formed by the social rules of my being,

How

On Earth,

Could I ever dream of an island where sexual liberty

Is the only form of freedom, where

Emotions are put in the ball sack and consent speaks from the vagina.

If my conscience is made up of a billion neurons that possess infinite degree of freedom Then I

Shall not be talking about sex with a friend I met a week ago, or any friend from tinder, wait? Are we supposed to make friends on tinder?

And if you say yes, then are you telling me to be friends with a person who reduced the elements of my identity to a set of five pictures showing smiles that have been captured only to be stolen from the moment they lived in, for me to get objectified and to let a mobile screen decide whether I’m Left or Right?

But wait, there’s still tinder on my phone, and maybe

Grindr or Her, maybe hidden or encrypted for in my world

Sexuality craves for privacy and privacy is a privilege.

In my world,

Or should I say,

The world I’m subjected to,

My existence is timed by the clocks of capitalism and the dogma of the metaphysical

My existence is not a space that I carve out for myself but a void I’m subjected to fill in,

But this, this is your world, the world

Plagued by the science of religion and religious faith in science

So I choose to live in my world,

Not escape, but live

A world where memories are not atoms and molecules of thermodynamics so that I can choose to fill the unfinished painting with my own colours

A world where emotions are not correlative with circumstances and I can be non-conforming to the expected norms of emotional behaviour, I can

Be happy for the greatest tragedy for I know it is not greater than my will to be happy

A world where happiness is all pervasive and the moments of grief are merely my disability to trace happiness in the most ordinary of manifestations

A world where being human is not to make mistakes and fall but to be strong and achieve one’s own spirituality

In my world, my existence is not defined by the realities of the physical world around me, but

By the diversity and freedom that I know I’m made up of.

So, if my consciousness and sub consciousness ever sit to have a meaningful conversation on a dinner table..

Never look for me in the physics of this world,

But in the relativity of mine, where

Cosmos, gizmos and Homos (Sapiens) coexist

What Words

When words start to crumble, 

When the languages begin

To dissipate through

The sieve of unanswered prayers, 

Of many unfulfilled desires,

We can still see each other

Not through meanings but

Recognition

When everything would fail to make sense,

I would not be afraid, for I

Sense your presence somewhere near,

Outside but within,

Unheard, unseen, unspoken

But just felt

For we exist

One of Those Starbucks Stories

I think I always conflicted with an idea of having a single identity. One name, one man, all leading to one destiny. I’ve always seen myself as a diacritical sort of a human. One that grows to fill certain voids, then go on to outgrow those very voids in search of other. It is in the fluidity of meanings, the ever evolving spaces of reality, that I find some sort of sense. Maybe, my peace lies not in rest but in mobility.

As I take slow sips of my hazelnut latte, extra caffeine and not usual, I don’t find my answers in the space that presents itself to be real to my senses. I find it in the melodies of old Hindi songs. As I feel the long raked up unfinished thoughts  surfacing to scratch the walls of my brain, and probably my heart, I immerse myself in a dialogue with the voice of Lata Mangeshkar. I don’t think I can ever restrict her songs to compartmentalized meanings of aesthetics. Like my own identity, I see these songs transcending structures of predefined voids and conquered territories of reason. I see them forming a new representation system that feels personally customized to engender within me this catharsis of sorts which is not of heightened degrees of emotions but of calming sensibilities. I can feel my thoughts getting reorganized, things being cleaned and sorted, and during this process, emergence of some lost things that I don’t even remember losing but recognize their importance. This voice, these songs, are nothing less than a revelation to me.

So, as I wait for my another cup of coffee, I don’t expect to be called out with my real name. Yes, I have multiple Starbucks names. I don’t know whether it’s even significant or not but it feels good to be someone else for a while. No matter even it is for few seconds. Well, why call it being someone else? To those who tend to outgrow, this is just an another form of being oneself.

On Apathy, and Others.

I see faces that are happy,

Lips that lock, tongues that roll

Into and deep, I see

Love where I don’t want it

To be seen at. I

Think, I am,

Over and above this idea of forgetting, of

Melting oneself in another, in this

Soul searching in else’s heart,

Warmth of warm felt against the cheeks, and eyes shut to

Live one’s dreams in reality, or reality

Lived in dreams, of

This whispering in the ears and then

Giggling, to explore the

Never ending mysteries of the bodies

Of each other, to idle away in pictures, clicked, again and again, then

Making it all feel like the night never befalls,

But stars does, and the moon

Never wanes, I

Don’t see myself falling for that

I don’t need love,

I can’t stand love,

It reminds of my voids.