Judicial situation of wind farms in Galicia: preliminary ruling and suspension of administrative proceedings

The wind energy sector in Galicia has been in the news in recent weeks due to new measures adopted by the High Court of Justice of that Autonomous Community in relation to some of the wind farms planned there. These news items have referred to two issues which, although with a similar practical effect (the paralysation of authorisation procedures) are very different from a legal point of view: the raising of a preliminary ruling before the Court of Justice of the European Union on the one hand, and the adoption of precautionary measures suspending the effectiveness of the administrative authorisations received by certain wind farms on the other.

1. The first of these measures refers to the order (auto) of 22 February 2024 issued by the Third Section of the Administrative Chamber of the High Court of Justice of Galicia (the "TSJG") submitting a question to the Court of Justice of the European Union ("CJEU") for a preliminary ruling. The purpose of such question was to clarify as to whether, in accordance with the interpretation of Article 6.3 of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment ('Directive 2011/92/EU'), it is necessary to make available the public (and not only to developers)  the sectoral reports issued in the environmental assessment procedure so that they can, where appropriate, submit comments and participate in the decision-making process on project authorisations before they are approved. These sectoral reports contain information on forestry, water, natural and cultural heritage, tourism, health, electricity and aviation safety, among others.

   As a result of the preliminary ruling, the TSJG has agreed to suspend, pending the outcome of the preliminary ruling, the dispute in which it is to decide on the legality of the decision of the Xunta in which it granted Eurus Desarrollos Renovables the previous administrative authorisation and the construction authorisation of the A Raña III wind farm, located in the municipality of Mazaricos (A Coruña).

   Specifically, the TSJG requests the CJEU to clarify the meaning of the expression "main reports and advice" referred to in Article 6(3) of Directive 2011/92/EU, as well as to specify whether the reports referred to in Article 37.2 of Law 21/2013, which must be requested by the substantive body, are those referred to in Article 6.3 of the aforementioned Directive; and, finally, clarify whether Articles 36, 37 and 38 of State Law 21/2013 and 33 and 34 of Galician Autonomous Community Law 8/2009 conflict with the requirement imposed by Article 6.3 of Directive 2011/92/EU to ensure that the main sectoral reports that have been issued are made available to the public concerned, so that they can submit their comments and participate, within a period of no less than 30 days, in the process of taking a decision on the application for the relevant authorisations, before that decision has been taken.

2. On the other hand, since 5 March 2024 (the date on which the TSJG ordered the precautionary suspension of 13 wind farms), there has been a succession of various orders in which the court agreed to adopt the precautionary measure of suspension of the administrative authorisations and construction of (up to the date of the present) a total of 20 wind farms, specifically, the wind farms Monte Neme, Zamorra, Touriñan III-2, Pico Seco, Figueiras, Reboiro, Rodeira, O Cerqueiral, Chao do Marco, Felga, Monte Peón, As Encrobas, Serra do Faro Ampliación II, As Penizas, Troitomil, Ventumelo, Pordo Vidros, Banzas, Alto de Telleira and Outeiro Grande.

   In granting these suspensions, the TSJG points out that it has taken into account the risk of delaying or not taking the precautionary decision, with the aim of ensuring that the future judgment can be implemented in a useful way, as well as the assessment of the damage that could be caused by the construction of the wind farms (periculum in mora). When assessing periculum in mora, the Court takes into account objective information from the Ministry for Ecological Transition and Demographic Challenge, which has delimited areas not recommended for the installation of wind energy, as well as reports on priority habitats and habitats of community interest.

   Furthermore, in the court orders, the TSJG takes into account, as a complementary requirement to periculum in mora, the weighing of the conflicting interests - the particular interests of the claimant, the general interests and those of third parties - in each specific case. In the orders, the TSJG highlights the prevalence of the principles of caution, prevention and precaution in environmental matters, as well as the preponderance that they have over the collection and transmission of electricity, unless the general interest of the electricity system in the execution and operation of the wind farm analysed in each specific case is accredited.

The situation caused both by the preliminary ruling and by the suspensions adopted jeopardises the viability of the wind farms affected, given that if the suspension resulting from both circumstances is maintained, it is foreseeable that these projects will not reach the administrative milestones established in Article 1 of Royal Decree-Law 23/2020 of 23 June, which approves measures in the field of energy and other areas for economic reactivation, with the consequent cancellation of the access and connection permits.

In relation to the above, it should be noted that various amendments have been proposed to the Draft Law adopting measures to deal with the economic and social consequences of the conflicts in Ukraine and the Middle East, as well as to alleviate the effects of the drought (from Royal Decree-Law 8/2023, of 27 December) so that the suspension of authorizations implies the corresponding suspension of the calculation of deadlines for administrative milestones. If these amendments are included in the final text passed in the Parlament, they would at least limit the pernicious effects on the projects affected by the preliminary ruling and by the orders adopting the precautionary measures of suspension.

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