The National Court has acquitted Iberdrola Generación España S.A.U. and four of its directors accused of crimes related to the market and consumers for having devised a system to increase the price of electricity at the end of 2013, in the middle of the cold wave.
The crime for which they had been tried, for which the prosecutor requested sentences of two years in prison for the directors and a fine of 5.4 million euros, punishes anyone who removes raw materials or essential products from the market with the intention of supplying a sector of the market and forcing a change in prices or seriously harming consumers.
The resolution states that the Prosecutor's Office and the rest of the accusations are based on an extensive interpretation of the criminal offense of manipulation, as there is no action contrary to the principle of legality that regulates criminal law.
In a ruling that can be appealed before the Criminal Chamber of the National Court, Judge José Manuel Fernández Prieto explains first of all that it has been fully proven that Iberdrola put on the market, on the dates analyzed, all the hydroelectric energy it had available, an extreme that the proceedings did not deny in their written conclusions that based the commission of the crime exclusively on the marked price of the hydraulic energy it produced and which they understood as excessive and unjustified.
Faced with this argument, the head of the Central Criminal Court indicates that “it cannot be ignored that hydroelectric energy is and was at the time of the events prosecuted free market, and that, as the three members of the CNMC, who intervened, point out in the administrative sanctioning file initiated against Iberdrola Generación and who acted in court as expert witnesses for the prosecution.
These technicians explained that the prices of hydroelectric energy in 2013 were free for all generating companies with the only limitation of not being able to reach 180 euros per megawatt hour, "a limitation that disappears some time later due to requirements of the European Community."
For the magistrate, it is not proven that the price of hydroelectric energy offered by Iberdrola Generación in the period between November 30 and December 23, 2013 reached those 180 euros per MWh. Thus, he adds, "it is frankly very complicated to appreciate the existence of a crime for the performance of something that was not prohibited and therefore was legally permitted."
In his resolution, the judge analyzes the expert reports presented in plenary by the experts of the National Competition Market Commission (CNMC), which conclude that other energy companies also offered hydroelectric energy on those dates above 80 euros per megawatt hour and that, however, these other companies are not considered to have committed the crime when the only objective data is the same, bidding above 80 euros per megawatt.
The ruling establishes that the CNMC was based on simple estimates, “mere futuristic probability studies in which the reasonableness criteria are never explained.” In fact, it values that the CNMC's judgment is based on an "unclear procedure, which they expressly state to have not been used before these events, nor after them (...) consequently revealing itself as an ad hoc system created exclusively for this specific case.”
It also highlights the “peculiarity” of the system used by the CNMC experts, who do not change their conclusions despite changing the variables of the study, which “is not understood.”
The magistrate also does not consider it proven that the offers of hydraulic energy made by Iberdrola Generación on the dates of the events were adopted in retaliation for the withdrawal, from the State Budget corresponding to the year 2014, of the item 3,600 million euros to which The Government had committed itself to the electricity generating companies to alleviate the electricity deficit.
On the contrary, he points out, the statements in the trial of the then Minister of Industry, José Manuel Soria, and the Secretary of State, Alberto Nadal, make it clear that there were tensions due to this fact but that they were not greater than others that they usually maintained with the energy companies. .
