El riesgo regulatorio. Límites y su distinta intensidad en los ámbitos interno, comunitario y del Derecho internacional transnacional

Abstract

The aim of this contribution is to analyze the jurisprudential construction of «regulatory risk». In doing so, it is found that, in the form in which it was created and has been developed by the Supreme Court, it is not compatible with the analysis that the Court of Justice of the European Union carries out in relation to the principle of legitimate expectations, nor can it be extrapolated to the field of transnational international Law. In the context of the modifications to the incentives for renewable energies carried out in Spain a little over a decade ago, we will highlight both the different treatment to which operators are exposed depending on their nationality and the disparity of limits to which the regulator is subjected depending on their nationality. It must be admitted that «regulatory risk» implies a kind of burden to be borne by the public in general or by economic operators in particular when operating in sectors in which there has been a monopoly and even today competition or the market are unusual. The question that arises then is whether reasons of strict political convenience or those derived from legislative or executive scenarios must imply the assumption by the administrated of pernicious consequences in the economic or even arbitrary in the legal sphere. The first part of the study deals with the origin, concept and legal nature of «regulatory risk», examining its most significant practical manifestations and the most relevant pronouncements of both the Supreme Court and the constitutional doctrine. The second chapter attempts to specify the area in which «regulatory risk» most frequently comes into play, which is identified with the so-called regulated sectors, regulation being precisely one of the modalities of administrative intervention.The third part deals with the principles of good regulation and regulatory quality as instruments to achieve greater legal certainty in an environment of hypertrophy in production. Chapters four to six describe the disparity of the limits affecting «regulatory risk». While the Supreme Court and the Constitutional Court have opted for a deferential treatment of the regulator, the doctrine of the Court of Justice on the principle of legitimate expectations dispenses with verifying whether or not the eventuality of the regulatory change could have been foreseen, and places the key in determining whether sufficient elements were available to allow foreseeing that the regulatory regime would be eliminated or altered within a certain period of time. As regards transnational international Law, the possibility of applying the doctrine of «regulatory risk» is ruled out. After referring to the substantive and procedural aspects of the investor-State dispute settlement mechanisms, and always with the common denominator of the changes in the regulatory regime of renewable energies in Spain, it is noted that what must prevail is the principle of fair and equitable treatment of the legitimate expectations of investors. Thus, in those cases in which the arbitration bodies conclude that such fair and equitable treatment has been infringed, the regulatory conflict arises, consisting of the impossibility of simultaneously complying with two rules that lead to antagonistic results: on the one hand, the European Union's State aid regime as opposed to the granting of selective economic advantages attributable to the Member States, as they are incompatible with the internal market. On the other hand, the obligation to enforce the awards resulting from the dispute settlement mechanisms provided for in international agreements and, in particular, in the Energy Charter Treaty. To conclude the study, the chapter on conclusions proposes the criteria that should govern the configuration and use of the «regulatory risk», suggests a greater strictness in the configuration of its limits in domestic Law and explains why it is legally impossible to pay the compensation to which Spain has been condemned in arbitration awards based on the infringement of fair and equitable treatment. This is because it would imply contravening the State aid regime and, therefore, public order from the perspective of Union Law.