Law 5/2016, Of 10 March, Which Regulates The Public Forces Elèctriques D'andorra (Feda) And The Activities Of The Electric Sector, The Cold And The Heat

Original Language Title: Llei 5/2016, del 10 de març, que regula l'ens públic Forces Elèctriques d'Andorra (FEDA) i el règim de les activitats dels sectors elèctric, del fred i de la calor

Read the untranslated law here: https://www.bopa.ad/bopa/028022/Pagines/CGL20160329_09_45_03.aspx

CGL20160329_09_45_03 law 5/2016, of 10 March, which regulates the public Forces Elèctriques d'Andorra (FEDA) and the activities of the electric sector, the cold and the heat law 5/2016, of 10 March, which regulates the public Forces Elèctriques d'Andorra (FEDA) and the activities of the electric sector, the cold and the heat since the General Council in its session of 10th March 2016 has approved the following: law 5/2016, of 10 March, which regulates the public Forces Elèctriques d'Andorra (FEDA) and the activities of the electric sector, the cold and the heat reason and until today, the regulatory framework of the electricity sector in the Principality of Andorra has been formed basically by three rules: on the one hand, the regulation of the distribution of the electric power , approved by the Permanent Delegates on 28 July 1975, amended by the Decrees of 16 December 1992 and March 18, 2009, and the law 85/2010, from 18 November, provisional measures in relation to the system of electric power, and the law 5/2013, of 9 may, to amend the law 85/2010 , November 18, provisional measures in relation to the system of electric power; on the other hand, the agreement of the m. i. General Council, of 14 January 1988, which States that the production and import of electrical energy are essential public services to the community that can only be provided by the general administration, directly or through an entity company or public company in which this service credited under the sole, and finally the law of creation of the Forces Elèctriques d'Andorra (FEDA), also of 14 January 1988, later amended by the law of 18 January 1991, of 4 November 1993, and on 18 November 2010, which attributed to this public body the two activities mentioned, and also the distribution of electrical energy, both to users directly as the other companies distributors , and other activities related to cogeneration and the purchase of the energy produced by a third party on the basis of renewable sources, as well as the proposal of fees to the Government.
The preamble of the law 85/2010, from 18 November, provisional measures in relation to the regime of the electrical energy as indicated clearly that this regulatory framework is old and fragmentary that practically has not evolved over the last two decades and that it is necessary to replace it by a new regulation in the energy sector; a regulation that the law on provisional measures left pending a global reflection and in-depth. This reflection, in which the main actors involved, it hardened in the publication of the white paper on the energy of Andorra (July 2012) and in the subsequent creation of the Office of the energy, by Decree of 19 December 2012, now replaced by the Office of energy and Climate change (OECC), created by Decree of the 29th April 2015.
The white paper on energy advocates a new energy policy for our country, aimed at energy efficiency and in the installation of new capabilities of generation of electrical energy and heat, and the development of energy infrastructures that are necessary for this purpose; all this, in a new environment of collaboration between FEDA, which assumes the public responsibility in relation to the supply and the proper functioning of the electrical system, but has a limited investment capacity, and new private actors, which must inevitably take part in the major investments that are required for the deployment of the new energy policy of the Principality.
This law is in line with the orientations of the white paper on energy, and pursues a dual purpose: on the one hand, to provide a new legal framework and organizational POWER STATION that enables it to meet effectively the new challenges; on the other hand, to review the legal framework for the activities of the electricity sector, in such a way that private actors to increase their participation, which has had, so far, a character almost residual.
II the law preserves FEDA as an entity of public law of commercial and industrial character, with its own legal personality, autonomous organization, own patrimony and full capacity for the development of its up. also maintains the status of the activities of the electricity sector as public sector activities, but limited the number of activities that are reserved for FEDA in direct management. Will continue in this regime the import and export of electrical energy, the wholesale purchase of electrical energy, and the operation, maintenance and development of the electricity transport network, including the operation of the electrical system. FEDA also continue developing directly the activity of retail distribution and sale of electric energy, along with the companies distributors currently existing ones, the scheme of which it is not altered.
The novelty lies in the fact that, without prejudice to keep the production of electricity using renewable energy to power small facilities connected to the low voltage network, regulated by article 2 of the law 85/2010, from 18 November, this law open to the private sector the management indirectly, under administrative concession, the activities of production of electrical energy without those limitations , and also of production, and distribution and retail of cold and heat.
The law also envisages that FEDA can develop these activities, concurrently with the private sector, but, in this case, it will not directly to the public, but by means of a dependent company, which must have at least the majority of the capital. That is to say, in cases in which the activities are not performed, P.O BOX reserved, you can do it in collaboration with private partners, although necessarily minorities, in order to be assured the public accountability in management. This provision is intended to facilitate the entry of the capital of the small investors and institutional investors do not specialize, because in this way allowed that, without specific knowledge in the business of energy, can enjoy the professional management of the same management team of FEDA.

Additionally, the company dependent on FEDA can, in turn, and with the prior permission of the Government, set up or participate in the establishment of other subsidiaries, always with the condition that the company owns, at least, the majority of its capital. This double-corporate level responds to the desire to ensure that private capital can opt for finance in general the development of the capacity of the Principality, or do it with specific projects (in a particular parish or in a certain place) in which you have a special interest.
Finally, the law foresees that FEDA can develop also other activities are not reserved, with authorization from the Government. As in the previous case, it will have to do it through a company dependent on, in which you must have, at least, the majority of the share capital.
III beyond the FEDA configuration as a matrix of a group of companies by means of which develop some of their activities, the organizational, financial and property of the public entity experiencing a few modifications.
FEDA organs will continue to be on the Board of Directors and the general management, and the powers of the one and the other are still basically the same as they have been until now under the law of 14 January 1988. Also the composition of the Board of Directors and its functioning remain without significant changes. As a novelty it can be noted that the jurisdiction to organize, direct and control the operation of the services and facilities that corresponds to the Board of Directors comprises also the strategic direction and control of the subsidiary, and the appointment of holders of governing bodies and management of the latter.
In the area of financial regime, the law establishes that the Board of Directors may decide, in accordance with the investment plans previously approved, that a portion of the operating surplus is being channelled into the Constitution of a reserve fund, which applied exclusively to finance the improvements and extensions of services and facilities, even those that are owned by the subsidiary. The rest of the operating surplus should revert to the administration.
Finally, and reasons of efficiency and functionality, the law excepts FEDA of the application of the public procurement Law, and allows clamp to hiring a private law, which is the same of the commercial and industrial activities that must be carried out; This, of course, without prejudice to the submission to the accounting system and financial officer of the public authorities, to ensure transparency, the principles of publicity and concurrence and appropriate control.
IV As has already been pointed out, this law allows the indirect management for individuals under administrative concession, the activities of production of electrical energy, heat, cold and helpful, and retail distribution and sale of useful heat and cold. With the aforementioned purpose, the law establishes the General principles of the concession, which will have to develop the regulations.
The owners of the concessions of production of electrical energy, heat and cold will be entitled to purchase the entire production, P.O BOX at the price established in the same concession and in the standard contract that the holder of the concession will be forced to sign up with FEDA. On the other hand, the holders of concessions of distribution and supply of heat and cold will have the right to sell their production to the final consumer, the price established in the retail prices of heat.
The granting of the concession, and its possible renewal, the Government, at the proposal of the Minister competent in matters of energy, and in accordance with the provisions of the current regulations. The requirements they have to comply with the requests and the rules or criteria that will be taken into account for the granting of concessions and renewal will be established also for regulation.
V to the additional provision, the law makes it clear that, although it is expected that the POWER STATION activity of production of electrical energy through subsidiary companies, the operation, use and maintenance of the hydroelectric power station of waterfall Engolasters corresponds directly to FEDA, due to its relevance to the electrical system.
In the same way, the law makes it clear that, despite the fact that the distribution and retail sale of electric power is an activity reserved for FEDA, the other distributors who provide services at present can continue developing their activity, such as up to now, by virtue of the company's titles that already have. Furthermore, these entities distributors will enjoy a right of preference for the subscription of a section of the shares of the subsidiary of FEDA referred to the law, in the terms that you have to fix the Government for each of the public subscription of shares.
The law also lets you force the regime provided by article 2 of the law 85/2010, provisional measures in relation to the regime of the electrical energy for the production of electricity using renewable energies in power installations lower than 500 kW, when considering that the concession is not advisable for this activity.
Finally, the law amends article 4 of the law 85/2010, from 18 November, provisional measures in relation to the regime of the electrical energy, that consists in the addition of a new exception to the prohibition of transmission of electrical energy by a subscriber to any third party.
Chapter first. Legal status Article 1. Legal nature Forces Elèctriques d'Andorra (FEDA, for short) is an entity of public law, commercial and industrial in nature, with its own legal personality, autonomous organization, own patrimony and full capacity to carry out its purposes.
Second chapter. Article 2 activities. Activities reserved to FEDA under direct management 1. Reserves at FEDA the direct management of the activities of general economic interest as well: a) the import and export of electrical energy.
b) The wholesale purchase of electrical energy, heat, cold and helpful.
c) wholesale sales of electric energy, heat, cold and helpful.
d) the operation, maintenance and development of the electricity transport network.
FEDA develops these activities under private law.

2. Without prejudice to the provisions of the second additional provision, distribution and retail sale of electric energy is also an activity of general economic interest in the management of the reserves at FEDA.
Article 3. Operator of the electrical system 1. FEDA is also the operator of the electric system, with the primary mission of ensuring the continuity and security of electricity supply. In this condition correspond to the following functions: a) anticipate and control the level of assurance of supply of electricity, in the short term and in the medium term.
b) Foresee the use of the equipment of production in the short term and in the medium term; in particular, the use of hydroelectric power reserves, according to the forecast of demand, the availability of generation, the forecasts of availability of hydroelectric reserves and other resources that may give within the forecast period.
c) co-ordinating and modify, where appropriate, the maintenance of the facilities of transport and distribution to which are connected the units of production, in order to ensure compatibility with the generation of maintenance plans, and ensure appropriate uptime status also the network that guarantees the security of the system.
d) Require the necessary information about maintenance plans of the units of production, on failures and on any other circumstances that may lead to the stoppage of operations of any installation.
e) set up and control measures of reliability of the system, which can affect any part of the electrical system, and also the plans of maneuvers for the replacement of the service in the event of a general failure in the supply of electrical energy, and coordinate and monitor the implementation of these plans.
f) Require the actors of the electrical system the information necessary to determine the programming of the network, and manage the detours in international exchanges.
g) program the operation of the installations of production of electrical energy, production of electrical energy and heat (CHP) or production of electrical energy, heat and cold (trigeneration), strictly in accordance with the technical criteria of non-discrimination, and instruct the production facilities to ensure compliance with the programming designed.
h) Perform any other functions that may be assigned by the regulations.
2. FEDA has to deliver information to the Government with the frequency and the content that the Government determines.
Article 4. Supply of natural gas for cogeneration installations of electricity and useful thermal energy Without prejudice to the powers which article 3 of the law of regulation of the sector of gas fuels, of June 22, 2000, attributed to Government, corresponds to the direct management of FEDA, in private law, public service of supply of natural gas to the power plants of cogeneration of electricity and useful thermal energy connected to a public network of heat , in the form as specified by the regulations. To this end, FEDA acquires liquefied natural gas (LNG) in international markets and is in charge of transporting it to the storage tanks of the cogeneration plants, own or of third parties.
Article 5. Activities that will be developed under administrative concession Are reserved activities of general economic interest susceptible of indirect management under administrative concession, in accordance with the provisions of the seventh chapter, the following: a) the production of electrical energy, production of electricity and useful heat (cogeneration) or production of electrical energy, useful and useful cold heat (trigeneration) , saved the fourth additional provision.
b) distribution and retail selling of useful heat and cold.
Article 6. FEDA activities can be developed through subsidiary companies 1. The activities referred to in the preceding article may be carried out also by FEDA, in direct mode and under private law.
2. FEDA must develop these activities through a company dependent on, the Constitution which must be approved by the Government. FEDA must have, in any case, the majority of the share capital of the company.
3. The society dependent on FEDA can, in turn, with the prior authorization of the Government, set up or participate in the establishment of other companies. Must have, in any case, the majority of the capital of these companies.
Article 7. FEDA's participation in energy planning and in the development of rates 1. Is the authority of the Government: a) energy planning.
b) the approval of the wholesale rates applicable to the acquisition of electrical energy, heat, cold and helpful to producers; the wholesale rates for sale of electrical energy, heat and cold useful to dealers, and the prices of retail sale of electrical energy, heat, cold and helpful.
2. Corresponding to the Faculty of the Government proposal, P.O BOX on energy planning and prices of electrical energy, heat, cold and helpful.
Article 8. Non-reserved FEDA can develop, at the same time, other activities that may be authorized by the Government. In any case, you must develop these activities through a commercial society, the denomination and the Constitution which must be approved by the Government. FEDA must have, in any case, the majority of the share capital of the company.
Third chapter. FEDA bodies Article 9. FEDA organs the organs of FEDA are: a) the Board of Directors.
b) The Directorate-General.
Article 10. The Board of Directors 1. The Board of Directors of FEDA is integrated by the following members: a) the Chairman, who must be appointed by the Government, among his ministers.
b) another Minister, appointed equally by the Government.
c) Two members appointed by the Government.
d) the director-general.
e) A member of free appointment by the head of Government, between the directors of the entity.
f) the Secretary, who must be appointed by the Board of Directors, and who attends the sessions without deliberative voice nor vote.
The exercise of the functions of the members of the Board of Directors does not involve receiving no remuneration.
2. The Board of Directors is validly with the assistance of the majority of its members with the right to vote, but it is essential the presence of the president, without which it cannot validly take any agreement.

3. the powers of the Board of Directors: a) organize, direct and control the operation of the services and facilities, as well as that of its subsidiary companies, and naming the owners or members of the governing bodies and of the direction of the latter.
b) to approve the allocations of staff at FEDA and the organisation of its internal services.
c) Present each year to the Government the draft budget for the following financial year for us and also the activities report, the settlement of the budget and the accounts for the previous financial year.
d) presented at the Government proposal of energy planning.
e) present to the Government the proposals for modification of the wholesale prices of electricity and heat, and the rates retailers of electrical energy and heat.
f) Awarded the contracts held by their amount, and when the POWER STATION according to the limits determined by the same Board of Directors, it may be made to the director general.
g) to propose to the Government the adoption of appropriate provisions for the proper functioning of the service.
h) issue the reports requested by the Government.
4. The Board of Directors forms and expresses the will of FEDA in their status as shareholder of the subsidiary. You can delegate this function in one or some of its members.
5. The president exercises the body, convenes the meetings of the Board of Directors, the Chair and directs, and oversees compliance with its decisions.
6. The president has the right to vote ruling, as well as the ability to suspend the agreements adopted by the Board of Directors to submit them to the consideration of the Government. If the president makes use of this ability, the agreements that affect the suspension does not acquire value and may not be executed until the Government have expressly ratified.
7. The Secretary up minutes of the sessions and the signs together with the president; delivers the certifications of the adopted agreements, with the approval of the president.
8. the system of operation of the Board of Directors must be developed in an internal regulation, which must be approved by the Council. This regulation can foresee the possibility that the Board hold virtual meetings through telematic means, and made voting by these means, provided that the identity of the Member vote and the integrity of the sense of vote are sufficiently guaranteed.
Article 11. The director-general 1. The director general of FEDA is appointed by the Government, at the proposal of the Minister competent in matters of energy, among people of recognised professional competence in the field of activity of the entity. It is also dismissed by the Government.
2. the powers of the director-general: a) to prepare the sessions of the Board of Directors, and prepare the documentation that must be examined.
b) execute the resolutions of the Board of Directors.
c) Exercise of the delegated by the US president, in cases where the latter I think convenient.
d) propose to the Board of Directors on strategic and investment plan of the public body and the subsidiary.
e) exercise of the administrative direction and represent it in all kinds of acts and contracts, the amount of which does not exceed the number for which you are expressly delegated by the Board of Directors.
f) Manage the resources of the entity, to manage revenue, sort the collections and payments and held accountable in front of the Board of Directors.
g) to propose to the Board of Directors the recruitment of staff.
h) and, in general, all those that are not assigned to any other body.
3. The director-general may delegate the signing, in the matters of their competence, management of the boxes.
The fourth chapter. FEDA Article 12 staff. The staff at FEDA staff in the service of FEDA is governed by labour legislation and internal regulations. Is subject to the power of direction of the general manager, who can delegate to the directors of the entity. The recruitment and hiring of staff will follow procedures that ensure advertising and objective selection.
Chapter five. Assets and economic resources of FEDA Article 13. FEDA heritage 1. For the fulfillment of its object, FEDA has the assets and the resources that you have attributed at the time of the entry into force of this law, and with those who get in the future in the exercise of their activity.
2. FEDA also has the goods belonging to the national heritage that the General Council assigned, at the proposal of the Government.
3. The national heritage assets attached to the patrimonial goods legal qualification, P.O BOX, with the sole exclusion of goods that make up the natural order.
4. enjoy full powers of ordinary administration FEDA and extraordinary goods in the public domain that may be attached, but only be used for the fulfillment of its purposes. When some well demanial attached to FEDA ceases to be necessary for the fulfillment of its purposes, the US must agree on the tax and return to the administration.
Article 14. The financial resources of FEDA constitute the economic resources of FEDA: a) The property and rights that make up its assets.
b) The excess of earnings management.
c) grants that may be awarded.
of) any other resource that may be authorized by the Government.
Chapter six. Financial and contractual regime of FEDA Article 15. Financial regime 1. FEDA is subject to the regime of budget. Each year, the Board of Directors must approve the budget of the project and must submit to the Government, in the period and the documentation provided in the general law on public finance.
2. FEDA is subject to the regime established in the general law of financial accounting and public finance for public entities of commercial and industrial property.
3. Financial management of FEDA have aimed at the financial balance. However, and in accordance with the investment plans approved by its Board of Directors, FEDA may constitute a reserve fund operating surplus, which apply exclusively to finance the improvements and extensions of its services and facilities, or that are owned by its subsidiary companies. The operating surplus that is not intended for this purpose must revert to the general administration.
Article 16. Regime of recruitment

1. the private law hiring POWER STATION; do not apply the public procurement Law. However, the Board of directors should ensure the respect of the principles of publicity and concurrence in the contracts of FEDA, without prejudice to the exceptions that may be decided in attention to the strategic nature of the contracts, which should be justified in the file.
2. To guarantee the maximum transparency in the procurement process, the Board of Directors must approve a manual of good practices in the field, which should be posted on the website of FEDA. With the same purpose, FEDA must publish the awards of contracts by an amount greater than the one that determines the annual budget Law, with the exception of contracts with suppliers of electrical energy and liquefied natural gas and, in general, are stipulated in article 2 of the law on public procurement.
Chapter seven. Development of reserved activities under administrative concession Article 17. Principles of concession 1. The Government may establish by decree that the construction and operation of certain facilities for the production of electrical energy, production of electrical energy and heat (CHP) or production of electrical energy, heat and cold (trigeneration), as well as the development of the activity of retail distribution and sale of cold and heat is carried out under the regime of administrative concession , and regulate conditions.
2. The concession gives the owner the right to perform the corresponding activity during a period that is determined by the regulations, with the possibility of extension. In any case, the main period more extensions cannot exceed 99 years.
3. The holders of concessions for the production of electrical energy, cogeneration or trigeneration have the right to connect to the network, under the conditions specified in the regulations, for the total of the production to FEDA.
The holders of concessions for the production of electrical energy and heat (CHP) or production of electrical energy, heat and cold (trigeneration) have the right to purchase all of its production to the POWER STATION price established in the same concession and in the standard contract that the holder of the concession is required to subscribe with FEDA, on terms to be determined by the regulations. The holders of these concessions have banned the sale to third parties of the electric power, the cold and the heat produced.
4. The holders of concessions of distribution and supply of heat and cold have the right to sell their production to the final consumer, the price established in the corresponding rates.
5. A regulation shall fix the technical conditions to be met and its connection to the network, in order to ensure the security, stability, efficiency and the absence of damage to third parties; You must set the procedure for the putting into service and the control of the facilities.
6. A regulation should establish the obligations of the service must comply with the holders of concessions of distribution and supply of heat and cold.
7. The Government, on the proposal of the Minister competent in matters of energy, granting the concessions referred to in this article, and agree, where appropriate, its renewal. The requirements they have to comply with the requests, as well as the procedure and the rules or the criteria to grant and renew concessions, will be established by regulation.
8. Cancellation or termination of a grant, to resignation, completion of the term for which he was awarded, or any extensions, or to rescue, give rise to the immediate reversion to FEDA, which must compensate the concessionaire in the event and the conditions to be determined by the regulations.
First additional provision For the exception of the provisions of article 6.2, the operation, use and maintenance of the hydroelectric power station of waterfall Engolasters are carried directly FEDA.
Second additional provision For the exception of the provisions of article 2.2, the distribution entities referred to in article 1 of the regulation of the distribution of electrical energy, of 28 July 1975, as amended by article 5 of the law 85/2010, from 18 November, provisional measures in relation to the regime of the electrical energy, can continue to develop the activity of retail distribution and sale of electrical energy in their respective geographical area , by virtue of the company's titles available in the entry into force of this law.
Third additional provision distribution entities mentioned in the preceding provision will have a right of preference for the subscription of a section of the shares of the subsidiary of FEDA referred to in article 6, under the conditions that you have to fix the Government for each of the public subscription of shares. The section reserved for these entities will be one-third of the shares offered for public subscription.
Fourth additional provision The production of electricity using renewable energies in power installations lower than 500 kW is governed by the provisions of article 2 of the law 85/2010, from 18 November, provisional measures in relation to the system of electric power, and the regulations that develop.
Repealing provision derogates the law of creation of FEDA, of 14 January 1988, amended by the law of 18 January 1991, of 4 November 1993 and from 18 November 2010.
First final provision modifies the article 4 of the law 85/2010, from 18 November, provisional measures in relation to the regime of the electrical energy, which is worded in the following terms: "Article 4. Transmission of power by a subscriber to third parties 1. It is forbidden to all electric power transmission made by a Subscriber, by any title, to one or more third parties, unless prior permission from the Distributor, given in writing.
2. By exception to the preceding rule, you do not need authorization from the authorized distributor for the transmission of energy made by the Subscriber to one or more third parties in the following cases: a) recharging services of equipment with battery, b) in the supply of electric current in the interior of buildings through stabilized current equipment and generators, c) in the supply of electric current in furnished apartments for holidays and apartments ,

d) in the supply of electric current in the centres of business, as are defined and regulated in the legislation.
3. The conditions of billing by the transmitter to the end user are set by regulation. "
Second final provision empowers the Government to make the necessary provisions for the implementation, the effectiveness and implementation of this law.
Third final provision this law enters into force within a period of three months from the date of its publication in the official bulletin of the Principality of Andorra.
Casa de la Vall, 10 March 2016 Vicenç Mateu Zamora Syndic General Us the co-princes the sancionem and promulguem and let's get the publication in the official bulletin of the Principality of Andorra.
Joan Enric Vives Sicília François Hollande Bishop of Urgell, President of the French Republic Co-prince of Andorra Co-prince of Andorra