Exterior of Luton Airport (London).
New embargo against Spanish State assets as a result of the cut in renewable energy premiums. The British courts have agreed to this precautionary measure against the usufruct rights of the public company Aena over Luton Airport in London, as requested by the energy giant NextEra Energy as a way of securing payment of one of the 26 awards pending payment in this matter. In this case, the International Centre for Settlement of Investment Disputes (ICSID) -dependent on the World Bank- recognised compensation of 290 million to compensate for the loss of profitability of its investment in two solar thermal plants in Extremadura as a result of the electrical reform undertaken by the Government of Mariano Rajoy in 2013.
AENA notified the Spanish National Securities Market Commission (CNMV) on Saturday night of the measure adopted against the Spanish State, although it specified that, as it is not a party to this judicial process, the provisional embargo measure adopted has not been notified to it, but rather it has been communicated by the “representatives of the Kingdom of Spain” in the procedure. “As soon as it is notified of the decision, AENA will carry out the relevant checks to determine the scope and consequences of these measures and, in any case, will defend the interests of AENA, its subsidiaries and its shareholders in the manner legally appropriate,” states the statement signed by the secretary of the board of directors, Elena Roldán.
Since Spain has not faced any of the awards that recognise the right to compensation of the various investors who sued the State for the reduction in renewable energy premiums, some of those affected and opportunistic investment funds, which have bought the rights of the companies in these lawsuits, are requesting the seizure of Spanish property and assets abroad in the various processes of recognition and enforcement of awards opened in different jurisdictions, such as the United Kingdom, Belgium, Australia or the United States. And this is what has happened in the case of NextEra, which began its battle against the Spanish State in 2014.
According to the public company, the energy giant’s lawyers informed Spain that on July 11, a judicial decision had been issued “without a hearing from the Kingdom of Spain and without the participation of Aena”, by which a provisional measure has been agreed on the beneficial interest, which can be understood as usufruct. NextEra’s lawyers attribute to Spain 26% of the shares of the company London Luton Airport Holdings III Limited and its subsidiaries; and in one of the lands in which one of the subsidiaries appears as the registered owner and which includes several properties that make up the London airport. Legal sources explain that this provisional seizure procedure is usually unheard of partthat is, without hearing the arguments of the opposing party and adding that the decision is not yet final because the State’s legal services can file an appeal to try to have it annulled and assert their arguments. In all the proceedings opened for the enforcement of the awards, the State Attorney’s Office puts forward two arguments: that the jurisprudence of the Court of Justice of the European Union (CJEU) has placed limits on investment arbitrations when both parties involved reside in a community zone and that the European Commission has to authorise such payment after verifying that it does not correspond to “illegal State aid”.
Other embargoes
The embargo on Aena’s stake in Luton follows those already imposed by the courts of the United Kingdom and Belgium. In July, the US fund Blasket Renewable Investments, one of the investment funds that is keeping Spain in the dark over the cut in renewable energy, managed to get the Brussels Court of Appeal to grant its request to embargo the transfers that the European Organisation for the Safety of Air Navigation (Eurocontrol), based in the Belgian capital, makes to the public company Enaire for the collection of route and terminal fees in order to secure the compensation of 32 million euros that the ICSID recognised in favour of InfraRed Environmental Infrastructure, whose rights in this dispute belong to Blasket. A few days later, the said court raised the embargo from 32 million to 80 million euros.
This same fund also activated, in April 2023, the clause default in four public debt issues which declared Spain in technical default. It also obtained a ruling from the High Court in London to temporarily freeze 805,808 euros deposited in four accounts linked to the Instituto Cervantes, as well as the seizure of the institution’s headquarters, located in the centre of the British capital, and the headquarters of the Catalan Government’s agency for business competitiveness.
Within the framework of the Antin case(where compensation of 120 million euros was recognised), the British courts ordered the precautionary seizure of the Vicente Cañada Blanch Spanish Institute, a historic building owned by the Spanish State in London. It was also agreed to freeze part of the 850 million euros that Spain is due to receive for the sinking of the Prestige off the Galician coast, although this amount is up in the air after the High Court of England and Wales vetoed the State from collecting compensation.
Outside Europe, creditor funds have opened the way for other possible seizures, such as in Australia, after its Supreme Court rejected the appeal by the State Attorney’s Office against the award that requires Infrastructure Services Luxembourg and Energía Termsolar to pay 101 million euros. Investors have focused on the activity of Navantia’s Australian subsidiary. In addition, RWE, which last April obtained the support of the German courts to be able to initiate in the United States a procedure to enforce the award that grants it compensation of 28 million euros for the reduction in renewable energy premiums.
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