Royal Decree 36/2023, which regulates the Energy Saving Certificates System (CAE), establishes a regulatory framework allowing obligated parties and accredited collaborators to meet their savings targets through the purchase of certified energy savings. In this context, the CAE agreement becomes especially relevant as the core legal instrument for transferring such savings.
One of the most critical elements in this structure is the CAE agreement, which must precisely define the conditions and the compensation for the transfer of savings. Regulations and guidelines from the Ministry for the Ecological Transition and the Demographic Challenge (MITECO) stress that compensation must be established with absolute clarity and certainty — both in form and amount — explicitly ruling out any link to future or uncertain events, such as the market price of the CAEs.
Clarity of compensation: a fundamental principle
According to Article 11 of Order TED/815/2023 of July 18 and the MITECO guidelines, the CAE agreement must clearly and unequivocally specify the compensation that the savings holders will receive for the transfer of their energy savings. This obligation of clarity applies to two fundamental aspects:
Nature of the compensation
- If the compensation is monetary, the price must be a specific amount, expressed in unit terms using the unit of euros per kilowatt hour saved (€/kWh).
- If the compensation is in kind, the agreement must specify its exact form (e.g., improvements in kind, energy services, discounts, etc.) and assign it an equivalent monetary value, also expressed in €/kWh.
Timing and basis of payment
- The agreement must specify whether the compensation is calculated based on estimated savings or adjusted to the amount of certified savings.
- In all cases, the economic value per unit (€/kWh) must be fixed and certain.
- Compensation cannot be conditional on future or hypothetical events following certification, such as the CAE market price or any transaction recorded in the National CAE Registry.
Conditional payment upon validation: legal limits and contractual solutions
Although contractual mechanisms can help to adjust payment based on certified savings, it is not permissible for the existence or amount of the compensation to depend on uncertain events beyond the control of the parties. Compensation must be clearly and unequivocally defined in the agreement.
Legally valid contractual formulas in compliance with the regulations include:
Payment upon certification of savings, with a fixed unit price
The beneficiary receives compensation in euros per kilowatt-hour (€/kWh) applied to the certified energy savings. Although the total payment is determined ex-post, the unit value must be clearly defined in the agreement from the outset.
Advance payment based on estimated savings with subsequent adjustment
An initial payment is made based on estimated savings, followed by a settlement clause (upward or downward) once the savings are certified. In both cases, the unit prices must be certain and pre-established.
Valued compensation in kind
Suppose the compensation is in a non-monetary form (e.g. equipment installation or operational services). In that case, the agreement must include a description of the good or service provided, the valuation method and its expression in €/kWh.
In short, while it is lawful to defer payment until the certified savings are confirmed, it is not legitimate to make the existence or amount of compensation dependent on subsequent uncertain factors. This principle applies equally to private savings transfer agreements, which must comply with the same standards of transparency, traceability and legal certainty required by the CAE System in Spain.
If you need advice on how to determine compensation in a CAE agreement,
