Photovoltaic Installations) (Amendment No. 2) Regulations, 2015

L.N. 264 of 2015

REGULATOR FOR ENERGY AND WATER SERVICES ACT

(CAP. 545)

Feed-in Tariffs Scheme (Electricity Generated from Solar

Photovoltaic Installations) (Amendment No. 2) Regulations, 2015

IN exercise of the powers conferred by article 37(1) of the

Regulator for Energy and Water Services Act, the Minister for Energy

and Health, after consultation with the Regulator for Energy and

Water Services, has made the following regulations:-

(1)

The title of these regulations is the Feed-in Tariffs

Scheme (Electricity Generated from Solar Photovoltaic Installations)

(Amendment No. 2) Regulations, 2015, and these regulations shall be

read and construed as one with the Feed-in Tariffs Scheme

(Electricity Generated from Solar Photovoltaic Installations)

Regulations, hereinafter referred to as "the principal regulations".

(2) Paragraph (b) of regulation 12 which substitutes item 4 of

the Second Schedule to the principal regulations shall be deemed to

have come into force on the 13th July 2015.

Regulation 2 of the principal regulations shall be amended

as follows

(a)

immediately after the definition "solar photovoltaic

installation" there shall be added the following new definition

" "start of works" means the earlier of either the

start of construction works relating to the investment, or

the first legally binding commitment to order equipment or

any other commitment that makes the investment

irreversible. Buying land and preparatory works such as

obtaining permits and conducting feasibility studies are not

considered start of works. For take-overs, "start of works"

means the moment of acquiring the assets directly linked

to the acquired establishment;";

(b)

immediately after the definition "submission date"

there shall be added the following new definition

" "undertaking" means any entity engaged in an

economic activity, regardless of its legal status and the way

in which it is financed. For the purposes of this definition

"entity" includes any natural or legal person engaged in the

provision of a good or service on the market;";

(c)

immediately after the new definition "undertaking"

there shall be added the following new definition

" "undertaking in difficulty" means an undertaking

in respect of which at least one of the following

circumstances occurs

(a)

in the case of a limited liability

company (other than an SME that has been in

existence for less than three years or, for the

purposes of eligibility for risk finance aid, an SME

within seven years from its first commercial sale

that qualifies for risk finance investments following

due diligence by the selected financial

intermediary), where more than half of its

subscribed share capital has disappeared as a result

of accumulated losses. This is the case when

deduction of accumulated losses from reserves (and

all other elements generally considered as part of

the own funds of the company) leads to a negative

cumulative amount that exceeds half of the

subscribed share capital. For the purposes of this

provision, "limited liability company" refers in

particular to the types of company mentioned in

Annex I of Directive 2013/34/EU * and "share

capital" includes, where relevant, any share

premium;

(b)

in the case of a company where at least

some members have unlimited liability for the debt

of the company (other than an SME that has been in

existence for less than three years or, for the

purposes of eligibility for risk finance aid, an SME

within seven years from its first commercial sale

that qualifies for risk finance investments following

due diligence by the selected financial

intermediary), where more than half of its capital as

shown in the company accounts has disappeared as

a result of accumulated losses. For the purposes of

* Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the

annual financial statements, consolidated financial statements and related reports of certain

types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the

Council and repealing Council Directives 78/660/EEC and 83/349/EEC.

this provision, "a company where at least some

members have unlimited liability for the debt of the

company" refers in particular to the types of

company mentioned in Annex II of Directive 2013/

34/EU;

(c)

where the undertaking is subject to

collective insolvency proceedings or fulfils the

criteria under its domestic law for being placed in

collective insolvency proceedings at the request of

its creditors;

(d)

where the undertaking has received

rescue aid and has not yet reimbursed the loan or

terminated the guarantee, or has received

restructuring aid and is still subject to a

restructuring plan;

(e)

in the case of an undertaking that is not

an SME, where, for the past two years

(i) the undertaking’s book debt to

equity ratio has been greater than 7,5 and

(ii) the

undertaking’s

EBITDA

interest coverage ratio has been below 1,0.".

Regulation 3 of the principal regulations shall be

substituted by the following new regulation

"3. (1) These regulations shall apply to solar

photovoltaic installations with a capacity of less than 1000kWp,

insofar as such solar photovoltaic installation is installed either

in a residential or domestic premises or non-residential or

institutional household and which is to be connected to the

distribution system either directly or indirectly with the

appropriate protection and metering equipment

Provided that for the purpose of determining the total

installed solar photovoltaic capacity, installations with the same

premises code shall be considered to be installations with a

common connection point to the electricity grid and the kWp

capacities of such installations shall be considered

cumulatively.

(2)

These regulations shall not apply to

(a)

undertakings

which

are

subject

to

an

outstanding recovery order following a previous European

Commission decision declaring an aid illegal and

incompatible with the internal market;

(b)

undertakings in difficulty,

and undertakings referred to in paragraphs (a) and (b) shall be

precluded from applying and being paid or benefiting from a

feed in tariff under these regulations.".

Regulation 4 of the principal regulations shall be amended Amends

regulation 4 of

as follows

the principal

regulations.

(a) sub-regulation (1) thereof shall be substituted by

the following new sub-regulation

"(1) In the case of a solar photovoltaic installation

commissioned and connected to the distribution system on

a net metering arrangement by means of the appropriate

metering equipment provided by the distribution system

operator prior to the entry into force of these regulations,

the installation operator shall retain existing net metering

arrangements with the distribution system operator and be

paid the spill-off tariff for any electricity generated from

the solar photovoltaic installation and exported to the

distribution system paid prior to the entry into force of

these regulations

Provided that the installation operator shall

not increase the capacity of a solar photovoltaic

installation commissioned and connected to the

distribution system on a net metering arrangement."; and

(b)

sub-regulations (3), (4) and (5) thereof shall be

deleted and sub-regulations (6), (7), (8) and (9) shall be

renumbered as subregulations (3), (4), (5) and (6) respectively.

Regulation 5 of the principal regulations shall be amended Amends

regulation 5 of

as follows

the principal

regulations.

(a)

sub-regulation (1) thereof shall be substituted by

the following new sub-regulation

"(1) The feed-in tariff shall be due from the time

when the solar photovoltaic installation is first connected

to the distribution system as provided in regulation 3 and

produces electricity exclusively from the solar

photovoltaic installation."; and

(b)

sub-regulation (3) thereof shall be deleted and sub-

regulations (4) and (5) shall be renumbered as sub-regulations

(3) and (4) respectively.

Sub-regulation (2) of regulation 7 of the principal

regulations shall be substituted by the following new sub-regulation

The maximum electricity generated by solar

"(2)

photovoltaic installations and exported to the distribution

system established in the Third Schedule shall be composed of

electricity generated and exported to the distribution system by

solar photovoltaic installations approved by the Regulator for

the payment of the feed in tariff during the years for which the

thresholds for electricity generated and exported to the

distribution system has been established.".

In sub-regulation (1) of regulation 9 of the principal

regulations, for the words "regulation 4(7)" there shall be substituted

the words "regulation 4(4)".

Paragraph (b) of regulation 10 of the principal regulations

shall be substituted by the following new paragraph

request the prior approval of the Regulator and of

"(b)

the distribution system operator, in the form and manner they

may reasonably require, if the solar photovoltaic installation is

to be disconnected or transferred, sold or in any form modified

in such a way as to degrade its performance during the period of

guaranteed payment of the feed-in tariff established in terms of

these regulations;".

Regulation 11 of the principal regulations shall be

amended as follows

(a)

immediately after the words "new installation

owner" there shall be added the words ", subject to the prior

approval of the Regulator"; and

(b)

paragraphs (a), (b) and (c) to the proviso thereof

shall be substituted by the following new paragraphs

"(a) the new installation owner shall not be

considered by the distribution system operator and the

Regulator as a new installation operator if such installation

owner is not in compliance with any other law, permit or

any requirement in relation to the solar photovoltaic

installation;

(b) the new installation owner shall inform the

distribution system operator and request the approval of

the Regulator as aforesaid of such change in ownership in

such form and manner as they may establish, together with

any documentary proof and information that they may

establish for such purposes;

(c) the new installation owner takes over all

obligations held by the previous installation operator.".

Sub-regulations (1), (2) and (3) of regulation 12 of the Amends

principal regulations shall be substituted by the following new sub- regulation

the principal

regulations

regulations.

In the case of modifications relevant to the solar

"(1)

photovoltaic installation arising from -

(a) change of use of the premises where the solar

photovoltaic installation is located;

(b)

change of account holder;

(c) transfer of solar photovoltaic installation

from a premises to another different premises with a

different premises code but with same use;

(d) transfer of solar photovoltaic installation

from a premises to another different premises with a

different premises code and with different use;

(e) change of feed-in tariff option from "sell all

electricity generated" to "generate electricity primarily for

own use" or vice versa,

the feed-in tariff shall remain as originally approved by the

Regulator and in accordance with the feed-in tariff scheme in

force during the year when the solar photovoltaic installation

was first approved as a feed-in tariff.

(2)

In the case where an installation operator increases

the generation capacity of a solar photovoltaic installation

which is connected to the distribution system and which

benefits from a FIT, the feed-in tariff to be paid by the

distribution system operator and the period for guaranteed

payment of the feed-in tariff shall remain the same as that

approved by the Regulator and such increased capacity shall not

be eligible for the payment of such feed-in tariff and any

electricity exported above the threshold approved as part of the

feed in tariff shall be paid at the marginal cost.

(3)

The changes listed in sub-regulation (1) shall

become applicable for the payment of the feed-in tariff from the

date of the first meter reading taken after the date of submission

of an application to the distribution system operator to approve

and take the necessary action.

(4)

The change in location of a solar photovoltaic

installation from roof-mounted to ground-mounted or vice

versa, for the purposes of the scheme shall be prohibited and

any such change shall lead to the withdrawal of the feed in

tariff

Provided that this shall apply only when the

applicable feed-in tariff for roof-mounted and ground-mounted

solar photovoltaic installations is not identical.".

The First Schedule to the principal regulations shall be

amended as follows

(a)

item 3 thereof shall be substituted by the following

new item

"3. The solar photovoltaic installation has been

approved by the Regulator for participation in the FIT

scheme during the year for which the applicable feed-in

tariff is established. The submission date of a request to

participate in the FIT scheme shall be considered in the

determination of eligibility for the FIT scheme.";

(b)

item 6 thereof shall be substituted by the following

new item

"6. The solar photovoltaic installation is

commissioned and an application to connect the

installation to the distribution system has been submitted

to the distribution system operator not later than twelve

months from the date of approval of the FIT by the

Regulator.

In the case that the solar photovoltaic installation is

not commissioned and an application to connect the

installation to the distribution system is not submitted to

the distribution system operator within the aforesaid

twelve months, the eligibility for a FIT shall be subject to

the beneficiary of the FIT applying to the Regulator for an

extension, which extension shall be of not more than

twelve months, and which may be granted only once. The

rate of the FIT which would be then applicable shall be

that in force at the time of the submission of the

application for such extension by the beneficiary. The

application for extension shall be made within thirty days

to be reckoned to commence as from the first day

immediately following the end of the aforesaid twelve

month period allowed for the commissioning and submittal

of the application for connection to the distribution

system."; and

(c)

immediately after item 7 thereof there shall be

added the following new items

"8. Without prejudice to any other requirement

under this scheme or any other law, in no case shall the

start of works of the solar photovoltaic installation

commence prior to the submission of an application for a

feed in tariff and the approval of such feed in tariff by the

Regulator.

9. The applicant for a feed in tariff must submit

a written application to the Regulator and receive

allocation of the FIT from the Regulator before start of

works. The application for the feed in tariff shall contain at

least the following information

(a) undertaking’s/applicant’s name and size;

(b) description of the project, including its

start and end dates;

(c) location of the project;

(d) list of project costs;

(e) type of aid and amount of public funding

needed for the project.".

The Second Schedule to the principal regulations shall be Amends the

Second

amended as follows

Schedule to the

principal

regulations.

(a)

item 1 thereof shall be substituted by the following

new item

"1. In the case of electricity generated

exclusively from solar photovoltaic installations -

(a) when an application for the FIT scheme,

meeting all the requirements, was submitted and

approved by the Regulator for the periods of time

referred to in Table A; and

(b) with the type of installation as shown in

Table A, in Malta and Gozo and in accordance with

regulation 3; and

(c) exported to the distribution system up to

an annual threshold calculated as kWp multiplied

by 1600h; and

(d) for a period of guaranteed payment of

feed-in tariff of twenty (20) years;

(e) where an application to benefit the solar

photovoltaic installation with a grant has not been

made or the solar photovoltaic installation has not

benefited from a grant on the initial capital

investment,

the feed-in tariff to be paid by the distribution system

operator to an installation operator for electricity generated

from solar photovoltaic installations and supplied to the

distribution system operator shall be in accordance with

the amounts per kWh, solar photovoltaic installation’s

individual capacity limits and maximum units allocated per

annum for payment of each feed-in tariff as established in

Table A as follows

Table A: Caps and Feed in Tariffs applicable for solar photovoltaic installations

approved under the FIT scheme

Type of

Capacity of

Feed-in Tariffs

Maximum units

Installation

solar

applicable

allocated per

photovoltaic between the 3rd

annum for FIT

installation August 2015 until payment to PV

the 29th January systems approved

under this FIT

scheme between

the 3rd August

2015 and the 29th

January 2016

=>1kWp and

5 cents per

3.2GWh per

(a)

Any installation

<40kWp

kWh

annum (2MWp)

=>40kWp and

6 GWh per

(b)

Any installation

15 cents per kWh

<1MWp

annum (11MWp)

In line with the first-come-first served principle,

the Regulator reserves the right to stop accepting

applications for a feed in tariff if, in its opinion, it has

received sufficient applications which reach the total

maximum units allocated for FIT payment to solar

photovoltaic installations in terms of Table A and

following publication of a notice to that effect in the web-

site of the Regulator.

The receipt of any application by the Regulator,

should not be construed as an acceptance or approval

thereof and does not in any manner whatsoever give rise to

any obligation on the part of the Regulator to allocate a

feed-in tariff to the applicant.

Applications received under previous schemes are

not eligible under the FIT scheme in Table A. Such

applications have to be re-submitted to the Regulator for

approval, if applicable.

The maximum units allocated in Table A for each

FIT scheme do not include units from solar photovoltaic

installations which pursuant to item 6 of the First Schedule

benefit from an extension as provided in that item.";

(b)

item 4 thereof, shall be substituted by the following

new item

"4. In the case of electricity generated

exclusively by solar photovoltaic installations -

(a) approved for the FIT scheme from the

13th July 2015 to the 30th June 2016; and

(b) installed on residential or domestic

premises in accordance with regulation 3; and

(c) exported to the distribution system up to

an annual threshold calculated as kWp multiplied

by 1600h; and

(d) where the installation operator benefits

from a grant of not more than 50% of the initial

capital investment with regard to the solar

photovoltaic installation,

the feed-in tariff to be paid by the distribution system

operator to an installation operator for electricity generated

from solar photovoltaic installations and supplied to the

distribution system operator shall amount to 16.5 cents per

kWh for a period of guaranteed payment of the feed-in

tariff of six (6) years for electricity generated from solar

photovoltaic installations located in Malta and Gozo."; and

(c)

items 5 and 6 thereof shall be deleted.

13. In the Third Schedule to the principal regulations, for the

words "2014 shall amount to 148,000,000 kWh" there shall be

substituted by words "2016 shall amount to 180,000,000 kWh".

€1.08