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WL Cables and their use in Courts: The case of the solar plant in Spain

Posted by Irien   / In Leaks, News around the web, The Embassy Cables, WikiLeaks and the law   / July 22, 2013

In our series “Cables used in Courts” there are also examples where the Court does not accept the Embassy Cables as pieces of evidence. That is what happened recently in Spain, with the case of a public contract granted to a Californian corporation to build a solar plant.

We  comment here on an article published in “El Pais” on July 6, 2013.

The background:

In 2010 the Spanish State offered a public contract for building a solar plant, which was awarded to a Californian corporation, Solar Reserve.

Two companies not chosen for the contract, Acciona and Sener, went to court to quash the granting decision, claiming misuse of power and arbitrary decision. They argued that the contract had in fact been virtually granted in advance, because the conditions of the competition were shaped expressly for Solar Reserve to obtain it.

As a piece of evidence, among other arguments, the companies presented a cable released by WikiLeaks, showing that discussions between the  Spanish minister of Energy and the US Ambassador in Madrid took place before the contest is announced. In the cable, the Ambassador urges the Minister to take in consideration Solar Reserve wishes to build a solar plant in Spain and “see if anything could  be done”. The minister doesn’t accept formerly, commenting that the needs of new renewable capacities are fulfilled for the moment. A few months later, the contract bid is organized and then granted to this US company, Solar reserve.

The issue had been investigated by “El Pais” at the time.

The court has decided not to take the Embassy cable into consideration.

The court and the judgement:


The court is the “Audiencia Nacional.” According to WikiPedia:

    “The ” Audiencia Nacional” (English: National Court) is a special and exceptional high court in Spain. It has jurisdiction over all of the Spanish territory, as well as over international crimes which come under the competence of Spanish courts. (…)

    In most cases the rulings and decisions of these different divisions of the Audiencia Nacional can be appealed before the Supreme Court of Spain. (…)

The court includes, among others, an administrative chamber

    ” (…) which exercises judicial review of administrative decisions by senior officers (ministers of the Spanish government, secretaries of state) and certain specialized agencies”.(…)

It is this administrative chamber who judged the case.

About the WikiLeaks cable, the court stated that:

    (…) la revelación de los cables procedentes de la Embajada americana no es sino una prueba obtenida de forma ilícita cuya consideración resulta vedada, de acuerdo con el artículo 11 de la LOPJ , conforme ha puesto de relieve en múltiples ocasiones el Tribunal Constitucional. El Tribunal ha reiterado que no se compadece con el derecho a la tutela judicial efectiva y con el derecho a un juicio justo ( artículo 24 CE )el hecho de valerse de pruebas obtenidas mediante la vulneración de derechos fundamentales, secreto de las comunicaciones en este caso.(…)

Translation:

    (…) the disclosure of the cables from the U.S. Embassy is only an illegally obtained evidence whose consideration is therefore forbidden, according to Article 11 of the Judiciary Act, as highlighted on many occasions by the Constitutional Court. The Court reiterated that is not consistent with the right to an effective judicial protection and the right to a fair trial (Article 24 CE) the fact of using evidence obtained through violation of fundamental rights, confidentiality of the communications in this case.(…) (our translation)

The cable:


The ID of the Cable is  10MADRID86_a.

The relevant parts of the cable are paragraph 11 to 14:

    11.(U) In emphasizing the importance he places on strengthening the bilateral economic relationship in order to create jobs, the Ambassador noted that Spanish companies were the largest recipients in the U.S. of stimulus funding for renewable energy projects. He said the USG was glad to promote these investments, which resulted in U.S. jobs. He also wanted favorable consideration of U.S. companies, proposed investments in Spain. He mentioned two planned solar thermal electricity investments by U.S. companies, saying that both were important symbolically as well as for the direct amounts of investment and jobs they would bring. The investment by Florida Power and Light subsidiary NextEra now appeared to be in good shape and would be the largest new U.S. investment in Spain in several years. It would be an example of the two governments’ shared confidence in renewable energy.

    12.(SBU) A greater concern was the difficulties faced by a large project by SolarReserve that was important both in terms of economic activity and technology development. Minister Sebastian responded by explaining how the GOS had seen a bubble develop in solar photovoltaic electricity projects in 2008 and was seeing one in solar thermal projects in 2009. In both cases, far more companies had applied to build projects and receive the generous guaranteed feed-in tariffs than the GOS had expected, and the result was going to be very expensive to consumers for many years. He noted that the GOS had changed its registration process to burst these bubbles, and that many Spanish companies were very upset with the GOS for doing so.

    13.(SBU) Secretary of State Marin said Solar Reserve had presented its application in December, several months after the May 6 deadline, and that the original GOS target had been 500 MW of projects but that the GOS had allowed 2,500 MW to be scheduled between now and 2013. The GOS could not predict now what the guaranteed feed-in tariff would be after 2013 because it would have to see how the technology evolved, though the tariff certainly would be lower. It would be difficult for the GOS to allow Solar Reserve to “jump the queue” ahead of all the other companies (Sebastian said “thousands of megawatts”) that had applied between May and December. Marin also noted that the company was seeking authorization for a larger project than the 50 MW allowed by the GOS decree-law. He added that the company’s interest in using an alternative provision of the existing royal decree could not be accommodated because of overall capacity limits. He commented that the GOS had authorized much new renewables capacity at a time when overall electricity demand was falling, and there might not be demand for new capacity for a while.

    14.(SBU) The Ambassador acknowledged Sebastian’s and Marin’s comments. He noted that the company was willing to accept a tariff that was significantly lower than the tariff other companies were receiving (note: this is a condition of the alternate legal route) and urged the Minister and the Secretary to look at the company’s arguments again and see if anything could be done. He said the USG interest was partly in business terms and partly because of the symbolic importance. Marin noted that his team had met with company officials recently and that he was familiar with their arguments.

     

Links:

Article by El Pais: http://economia.elpais.com/economia/2013/07/05/actualidad/1373048021_962647.html

Text of the full judgement in spanish: http://www.poderjudicial.es/search/doAction?action=contentpdf&databasematch=AN&reference=6784435&links=Acciona%20Y%20Sener&optimize=20130708&publicinterface=true

The cable on PLUSD base: http://www.wikileaks.org/plusd/cables/10MADRID86_a.html

WikiPedia: The Audiencia Nacional of Spain: http://en.wikipedia.org/wiki/Audiencia_Nacional_of_Spain

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More/ Original link: http://wikileaks-press.org/wl-cables-and-their-use-in-courts-the-case-of-the-solar-plant-in-spain/