The draft royal decree that will regulate the energy, environmental, resilience, and digital sovereignty requirements of data centers has arrived at the Council of State. The Government has sent the text through the urgent procedure, with a deadline of 15 working days for the opinion, while the industry prepares its allegations and does not rule out going to court to stop a regulation it considers unfeasible.
The sector rejects outright the new version of the regulation, despite the changes introduced by the Executive after the public consultation period. The consulted companies believe that the modifications do not clear up the main uncertainties and warn that the requirements may compromise new investments and favor the relocation of projects to other European markets.
The industry estimates that 67 billion euros are at risk and claims that, after the first draft, projects worth 9 billion were immediately withdrawn. These are estimates provided by sector sources, who also anticipate possible negative announcements in the coming days and point out that some companies may already be starting their exit from Spain. The companies have not been able to publicly specify all cases due to confidentiality reasons.
The Council of State's deadline and the race towards November 29
The file entered the Council of State on Monday, October 26. Since urgent processing has been requested, the advisory body has 15 working days to issue its opinion. The calculation points to November 18 as a possible deadline, although the final calendar depends on the rules applicable to the file and the internal processing of the body.
The date is politically significant because the Government aims to approve the regulation before the general elections on November 29. However, the opinion of the Council of State would not, by itself, imply final approval: the planned procedures must then be completed, including the corresponding ministerial reports, the passage through the General Commission of Secretaries of State and Undersecretaries, and the final decision of the Council of Ministers.
The date is politically significant because the Government aims to approve the regulation before the general elections on November 29
The industry has requested to appear before the Council of State to present its allegations. Its priority is for the procedure to stop being processed through the urgent route and to have more time for technical and legal analysis. The consulted sources believe that the urgency is not justified and argue that the timeline may hinder a sufficient evaluation of the effects of the regulation.
Two alternatives that the sector considers unfeasible
The main point of friction is the obligation for data centers to cover at least 80% of their electricity consumption with renewable generation under certain conditions. The new text introduces changes regarding the initial draft and contemplates a transitional period of five years for certain installations that adhere to the power reduction system of the grid. However, companies argue that this flexibility does not solve the underlying problem.
According to the interpretation of sector sources, the regulation places operators in two scenarios. The first requires meeting renewable generation and hourly correlation targets that they consider disproportionate and difficult to materialize in practice. The second allows for a transitional regime in exchange for accepting possible disconnections when the electrical system requires it.
The industry questions whether installations designed to operate continuously can be exposed to supply cuts decided by the Executive, without compensation and for a period they consider excessive. They also warn that non-compliance with the requirements could lead to sanctions and, ultimately, the loss of access to the grid.
"The reading they have wanted to give that it is softened, no; we are made to choose between the type of rope with which we want to hang ourselves," summarize the consulted sources, who describe the text as unacceptable and believe that regulatory uncertainty may deter new investors.
The Government, for its part, defends that the requirements seek to regulate the growth of installations with high electricity demand and to prevent their consumption from impacting the energy price for the rest of the users. The proposal maintains the requirement for renewable backup but introduces modifications in the deadlines and compliance conditions.
The industry questions the legality of the procedure
The objections from the sector are not limited to the energy content. Companies are preparing allegations about the possible violation of the principle of legal reservation, the proportionality of the measures, and the lack of sufficient justification to resort to urgency. They also question whether the economic and impact report allows for an adequate assessment of the consequences of measures such as the revocation of licenses.
Another front is the role of the National Commission on Markets and Competition (CNMC). The industry demands that the text return to the regulatory body for it to issue a new opinion, understanding that the changes introduced are substantial and that the version sent to the Council of State does not sufficiently reflect its recommendations.
In addition, the sources consulted foresee transferring to the CNMC their objections regarding the absence of a notification to the European Commission through the TRIS procedure, which they consider mandatory due to the technical restrictions that the regulation could introduce in the information society services. In their opinion, the project may conflict with the community market unity.
The sector does not rule out taking legal action when it knows the final wording of the royal decree. The decision will depend, among other factors, on how the obligations are formulated and the guarantees that the final text incorporates.
Andalusia has 20 projects in the pipeline
The conflict affects an activity that aims to attract large-volume investments and to consolidate Spain as a destination for digital infrastructures. In Andalusia, the Junta has 20 data center projects in the pipeline, according to the official data provided by the regional administration.
Companies argue that energy demands, combined with the risk of disconnections and the possibility of losing licenses, may lead promoters to choose other countries or nearby markets. The industry demands that the Government review the proposal with greater scope for analysis and dialogue with operators, electric companies, and the renewable energy sector.
The file thus arrives at the Council of State with two opposing positions: the Executive defends a regulation aimed at containing the energy and environmental impact of data centers, while the industry argues that the conditions may compromise the viability of the projects. The opinion of the consultative body will be the next milestone in a process that the Government wants to complete before November 29 and that the sector is also preparing to combat through legal means.