The Supreme Court opens the door to suspending the deadline for compliance with the administrative milestones set out in Article 1 of Royal Decree-Law 23/2020
Published on 21st May 2025
The Supreme Court establishes in its ruling 3465/2025, as a countermeasure to the precautionary suspension measure it has granted, the suspension of the five-year period for obtaining the operating authorisation for a wind farm.
On 2 April 2025, the Fifth Section of the Administrative Chamber of the Supreme Court issued a ruling resolving a precautionary measures procedure requested in the administrative appeal filed by the environmental association Petón do Lobo against the decision of the Secretary of State for Energy granting ENEL Green Power España, S.L. the modification of the prior administrative authorisation ("AAP") and the administrative authorisation for construction ("AAC") of the Moeche wind farm.
The Petón do Lobo association had requested the adoption of precautionary measures to suspend the effectiveness and execution of the authorisations granted, alleging various irreversible environmental damages that could result from the construction of the wind farm and that had not been taken into account when granting the modification of the AAP and the AAC.
Our High Court, after observing the lack of clarity in the environmental documentation on the study of synergies with other nearby wind farms and projects, considers that there is a possibility that such irreversible or difficult-to-reverse effects on the environment may occur. It therefore grants the precautionary suspension of the contested decision in its order.
However, what is truly novel about the ruling is the establishment, as a counter-precautionary measure, of the suspension of the five-year period for obtaining the final operating authorisation ("AAE"), in accordance with Article 1 of Royal Decree-Law 23/2020. The aim is to prevent the precautionary suspension of the construction of the Moeche wind farm project from causing significant economic damage to ENEL due to the failure to comply with the deadlines established by current legislation, which would result in the automatic expiry of the access and connection permits for the planned facilities.
Although there is some precedent for this type of counter-precautionary measure, this is the first time it has been agreed by the Supreme Court. This recent ruling paves the way for other courts to agree to suspend the deadlines for complying with the aforementioned administrative milestones, either as a precautionary measure or a counter-precautionary measure, thus preventing the loss of renewable energy generation projects where, due to legal proceedings, there are significant delays in obtaining the AAE, with the consequent expiry of access and connection permits and the potential execution of the financial guarantees deposited. This is a particularly sensitive issue in recent years in the Galician community where the Moeche wind farm is located.
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