Dahir n° 1-10-16 of February 11, 2010 promulgating law n° 13-09 with regards to renewable energies (Official gazette of March 18, 2010)
Main principles and administrative process under law 13-09
Law 13-09 with regards to renewable energies implements a scheme that breaks up the monopoly of production of electric energy granted to the National Office of Electricity (the “ONE”), by placing the ONE and public or private companies on the same stage, as far as electricity production from energy sources is concerned (i.e. the electricity production from hydraulic sources is excluded).
In addition, law 13-09 sets out the principle that every Moroccan power facility operating on renewable sources of energy shall be connected to the “national electric network of a medium, high and very high power”. Although law 13-09 intends to promote the end of the monopoly of production of electrical energy, there is still an obligation to supply the energy from renewable sources throughout the national electrical network that is being managed by one operator, excluding therefore any private distribution network or a network operated within the same industrial platform.
Nevertheless, law 13-09 considers the possibility of creating a “direct electric distribution line” from a given operator’s plant to its clients’ one, without relying on the national electric network. Note that this direct electric line can only be operated separately from the national network if (i) the electricity produced is aimed to be exported and (ii) provided the operator has concluded a formal agreement with the ONE.
Furthermore, law 13-09 introduces the obligation for the administrative authority in charge of the development of renewable energies to allocate, upon proposal of the “National Agency for the Development of Renewable Energies and Energy Efficiency”, designated areas for the construction of wind and solar facilities of high production capacity, as this was provided by the French model of the “wind development zones”.
As for the process to be followed in order to be entitled to produce electrical energy from renewable sources, an operator will have either to obtain an authorization delivered by the authorities or to carry out a “preliminary statement” process, depending on the capacity of its facility and the nature/source of its production (electric or thermal). Note that as per provisions of law 13-09, below certain capacity thresholds, the implementation, formation and/or changes regarding a power facility operating on renewable energies (“RE”) are no longer subject to legal constraints. Regarding the production of electrical energy, capacity thresholds are as follows:
- Installed capacity less than 20 KW: no “preliminary statement” or authorization ;
- Installed capacity between 20 KW and 2 MW: “preliminary statement” ;
- Installed capacity exceeding 2 MW: authorization.
To grant an authorization, the administrative authority takes into consideration the technical opinion of the ONE with regards to the applicant’s project, as well as the file of the applicant who shall be able to demonstrate his technical and financial capabilities while meeting some specific criteria (e.g. incorporation as a company governed by the laws of Morocco for private legal bodies). The applicant will then be provided firstly with a temporary authorization for the construction of the power facility and secondly with a final authorization for the effective exploitation of the plant.
The maximum duration for a final authorization is 25 years, renewable once for the same period of time. However, this authorization may be withdrawn should the operator’s facility is not effectively used within one year following the grant of the said authorization or if the electricity production is suspended for a period greater than 2 consecutive years.
At the expiration of the final authorization’s duration, the power facility and the land where it is located are transferred to the State, at no cost and free of any charges. As the case may be, the operator could also be asked by the administrative authority to dismantle and remove the power facility and restore the site as it was before the construction of the plant.
Regarding the preliminary statement process, the approval of the statement involves the submission of an administrative file and the grant of a temporary receipt followed by a final receipt after review of the administrative file. This process will have to be renewed if the production facility is not effectively used within 3 years following the grant of the final receipt or if the electricity production is suspended for a period greater than 2 consecutive years.
The authorization, whether temporary or final, shall not be transferred or appointed in any case, whereas the receipt granted for a statement may be transferred to any legal entity or to anyone, as long as the administrative authority has been duly informed by so.
Marketing the electric energy from renewable sources
Electric energy from RE is aimed to be produced not only for the Moroccan market but also for export purposes.
In order to market the produced electric energy, each operator who holds an authorization granted by the administrative authority is entitled to connect to the national electric distribution network, within the range of the technical power capacity available.
In addition, the operator might also not otherwise be entitled to use the national electric distribution network if he does not enter into a formal agreement either (i) with the State or the body assigned for electricity supply or (ii) with a consumer or a group of consumers being connected to the national electric network. The terms of the agreement between the operator and the consumer(s) must state that the said consumer(s) shall collect and use the electricity provided by the operator only for their exclusive consumption.
Furthermore, in order to export electric energy from RE, each operator needs to obtain on a preliminary stage a technical opinion from the ONE.
In overall, the electric energy will be exported overseas trough the national electric distribution network. However, if the national electric network is lacking power capacity, the exporting operator could be allowed to create direct distribution lines for its exclusive use under the terms and conditions of a “concession” agreement entered into with the ONE. While concluding this concession agreement, the operator will have to pay transit royalties to the ONE, along with an annual exploitation fee on the facility computed as a percentage of the share of the energy exported (scales and rates to be set by regulation).
Sanctions and application of law 13-09
Confined control measures of the facilities as well as administrative sanctions (e.g. withdrawal of authorization) and heavy criminal sanctions (i.e. imprisonment penalties and fines) have been laid down for non-compliance with provisions of law 13-09.
Along with the adoption of law 13-09, which had a considerable impact on the national policy for the development of the Moroccan RE sector, the legislator has also taken into consideration the need to enact new regulatory laws to ensure that provisions of law 13-09 are effectively applicable and enforceable.
Indeed, making complementary regulatory adjustments will deal with RE related matters that were left undefined or unclear, including the designated areas for the construction of wind and solar facilities, the requirements for the application and submission of a file for a power facility construction, the content and form of the authorization and the pricing modalities with regards to the transit royalties and the exploitation fees to be paid to the ONE by an operator exporting energy from RE.
The adoption of law 13-09 enrolled in the course of making various regulatory initiatives and government actions aimed at promoting energies from RE, such as the adoption in February 2010 of two acts with regards to the “National Agency for the Development of Renewable Energies and Energy Efficiency” and to the “Moroccan Agency for Solar Energy” (MASEN) and, the launch in June 2010 of the “Moroccan integrated wind energy program” that entails the building of new wind farms, bringing the installed national electrical wind power from the current 280 MW to 2000 MW in 2020, knowing that 720 MW are under development, and that among the remaining 1000 MW ONE has recently launched a call for expressions of interest for the construction of a wind farm with a capacity of 150 MW in the region of Taza.
Meanwhile, the Moroccan Project of Solar Energy, launched in November 2009, involving construction of five solar power plants with a total capacity of 2000 MW in 2020, will come with the launch, after the pre-qualification phase, of the tender scheduled in late November for the first unit of the plant of Ouarzazate with a capacity of 125 MW from a total of 500 MW which will be equipped with a solar thermal technology.