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Spain: Royal decree-law published to implement the Spanish Plan post-COVID-19

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In brief

Royal Decree-Law 36/2020 of 30 December 2020, establishing urgent measures to modernize the public administration and implement the government’s recovery, transformation and resilience plan (“RDL of Modernization“) was published on the last day of 2020 and entered into force on 1 January 2021.

Notably, on 7 October 2020, Spain’s president presented the Recovery, Transformation and Resilience Plan (“Spanish Plan“), which will be used to manage 50% of the resources that Spain has at its disposal pursuant to the European recovery plan (“European Plan“), which was recently passed by the European Union (EU) and is known as the Next Generation EU. The European Plan is a temporary instrument to promote recovery and to rebuild Europe after the COVID-19 health crisis. Its aim is to build a more ecological, digital and resilient Europe. Therefore, the Spanish Plan will outline how nearly EUR 72 billion will be applied between 2021 and 2023 to help Spain recover and transform it into a more ecological, digital, resilient, cohesive and gender-neutral nation. The Spanish Plan includes the “2025 Digital Spain Agenda,” which was presented in July 2020.

Indeed, the RDL of Modernization is conceived to be the instrument that adopts the urgent measures to facilitate the selection, follow-up, evaluation and coordination of the different projects and investment programs contained in the Spanish Plan. The objective of the RDL, generally, is to facilitate public-private collaboration to carry out projects that use the funds provided by the Spanish Plan. Therefore, the procedures for adhering to administrative agreements (convenios) and consortiums are simplified. The regulations establishing the legal regime for the public sector, public procurement contracts, subsidies and environmental evaluations have been modified to facilitate and speed up the implementation of the aforementioned projects. The main new developments introduced by the RDL of Modernization are set out below.

In more detail

  • It creates a category known as “Strategic Projects for Economic Recovery and Transformation” (PERTE for its acronym in Spanish). By agreement of the Council of Ministers, a project may be declared a PERTE when it is considered to be of a strategic nature and highly capable of driving economic growth, employment and competitiveness in the Spanish economy in accordance with the criteria established by Article 9.3 of the RDL of Modernization. This category is clearly intended for European funds to be utilized, but it is created with the aim of being a permanent instrument for public-private collaboration.
  • The RDL of Modernization also creates the National Registry of Companies Interested in PERTEs, which will be a public registry at which any companies established in Spain may register if they carry out businesses linked to the relevant PERTE’s public interest. The registration will not be compulsory per se, but the bases for the subsidies may establish that such registration is required when justified by an overriding reason relating to the public interest.
  • It establishes that administrative proceedings that are linked to granting funds under the Spanish Plan will be fast-tracked and prioritized. In this regard, the RDL of Modernization has also provided that the deadlines for processing agreements with the General National Administration will be shorter.
  • In the area of public procurement and only for contracts linked to the funds of the Spanish Plan: (i) it establishes certain specialties for urgent processing when contracting bodies deem it necessary to follow the urgent procedure; (ii) the economic thresholds to use simplified open proceedings have been raised (both for ordinary and abbreviated proceedings) in order to ensure that a larger number of contracts can be included; and (iii) provided they have been processed electronically, the period for filing special appeals against award decisions is reduced to 10 calendar days. In addition, the composition of the Central Administrative Court for Contractual Appeals was changed and a new section created.
  • The RDL of Modernization simplifies the processing of subsidies related to the use of European funds (among others, it decreases the amount of documentation that must be submitted by potential beneficiaries). Mandatory reporting and authorization requirements are eliminated. In addition, a new type of noncompetitive subsidy is established for subsidies related to the use of European funds that do not require an evaluation comparing them with other proposals. Such subsidies will be granted according to the order in which the applications are filed once it has been checked that they meet the relevant requirements to participate, and if they are of the General National Administration, they will be approved by ministerial order. Likewise, the RDL of Modernization allows for natural or legal persons, as well as public or private entities without legal personality, to form a group and to be beneficiaries of subsidies linked to the Spanish Plan. The members of such groups will be considered joint beneficiaries of the subsidy and they will be jointly and severally liable in relation thereto.
  • Finally, Act 21/2013 of 21 December on environmental evaluation has also been amended to facilitate the processing of projects financed with the European Plan when the projects involved are merely modernizations or improvements of already existing installations that improve environmental conditions (such as energy efficiency, the use of natural resources, the reduction of environmental impact or the improved sustainability of the already existing installation). It should be noted that this would only affect proceedings carried out at the national level and/or in those regions (Comunidades Autónomas) that do not have their own laws regarding such matters.

The foregoing constitute some of the most significant changes brought about by the RDL of Modernization, but it also includes others that are linked to the structure and organization of the public administrations, such as matters related to budgetary approval, as well as the creation of four new governance bodies and the reactivation of the Sector Conference for European Funds to ensure the proper use of EU funds. Only time will tell if these measures actually serve to manage the funds correctly and speed up its granting.

Spanish version

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Elisabet is a Senior Associate experienced Public Law/ Regulatory lawyer in Baker McKenzie's Barcelona office. She has more than 10 years' experience advising heavyweight companies on public law and regulatory issues. Elisabet advises both national and multinational companies on public procurement, administrative compliance, license schemes, environmental, ESG, regulatory, and products-related matters (circular economy and sustainability requirements, green claims, consumer protection issues, etc), including assistance before regulators, authorities, and courts. In addition, she regularly advises private companies on regulatory issues related to business expansion and the opening of new plants/premises. She also advises on litigation and trials related to the areas of specialization. She has extensive experience in the consumer & goods and life sciences sectors. Regarding the life sciences sector, she offers advice to Spanish and foreign life sciences companies and represent them before authorities and courts regarding public procurement issues, price & reimbursement procedures, authorization and registration, promotion and advertising of medicines, and other regulatory issues related to medicinal products, medical devices, cosmetics, food supplements and other foods for particular nutritional uses. She also professor at Pompeu Fabra University, UPF Barcelona School of Management and ESADE Law School in the field of Public Law. She regularly participates in publications and articles related to her specialty.

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Jorge Gómez Alguacil joined Baker McKenzie Madrid in 2015 from a Big Four firm where he worked at the VAT and Customs department since 2010. He is a tax lawyer mainly focused on VAT matters, regularly handling complex tax issues, as well as controversies and litigation.

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Xavier is a partner and leads the Public Law and Regulatory practice at Baker McKenzie Barcelona. Xavier was a founder of the law firm Vila, de Miquel & Junquera in 1988, specializing in Public Law. In 1992, he joined Baker McKenzie and was based in the Chicago office in 1993 and 1994 before becoming a Principal in 1999. He was Managing Partner of the Barcelona office from 2006 to 2009. Xavier was the former chair of the Baker McKenzie Environmental, Regulatory and Planning practice group in EMEA.

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Antonio heads the Public Law, Infrastructure and Energy department at Baker McKenzie in Madrid since March 2019. Antonio is a State Attorney, on leave of absence, a recognised market leader in energy and natural resources and he has deep industry knowledge, creating trusted counsel relationships with global EMI players, having advised clients in the sector over the last 15 years. He is not only an expert in energy and infrastructure matters, but also one of the most recognised lawyers in the field of arbitration. During his time in the Spanish Administration, he served, among other senior positions, as the Secretary General of the Nuclear Safety Council.

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