Introduction - Investing into North African Solar Power - page 29

a service concession, which could also include regulations for the “transfer” of the
asset.
Finally, it is important that the land on which the plant is being built belongs to
the state. The ECJ recently decided a case concerning a concession which was
connected to the right of property usage. If the public sector wants to transfer the
right of usufruct of a building, it must have that legal right. 240 This is not possible if
the right of usufruct is solely ingrained in the right of property. 241 If the owner of
the property obeys all the applicable laws, he can use the property in any way he
desires. 242 Thus, as long as the private party has the right of usufruct and personal
property, the public authority cannot grant a concession of usage. 243

1.5.4 Assessment of PPP Cooperation

Looking at the contractual structure, the best solution would be an institutional
joint-venture PPP with a BOT/concession combination at its core. For a successful
PPP, the concession period must be at least 30 years long and, if possible, extend up
to 40 years. This would enable an investor to get a return on all its debts and to make
a profit. However, the average duration of a concession in Morocco is 20 years. 244
Art. 13 of Loi 13-09 fixes the possible project duration at 25 years, with a possibility
of a one-time renewal of 25 years. In practice, these automatically renewable
“concessions” already exist. 245 To make the concession even more interesting, it
could also include the exclusive right of performance and treat the investor as a
preferred candidate for comparable projects in the future. 246 The fact that conces-
sions normally involve a change of consumer (which are normally directly charged)
does not exclude its application. With respect to Morocco, it is highly likely that
ONE will purchase the energy, which must be negotiated.
Feed-in tariffs have also proven to be highly effective by implementing new
energy technologies. 247 Nonetheless, there are no feed-in tariffs in Morocco. 248
Feed-in tariffs are similar to a power purchase agreement (PPA) as they regulate the
price of the energy. The nature of a PPA involves a split payment by the private

240

ECJ [2010] Case C-451/08 preliminary ruling, para 72.

241

ECJ [2010] Case C-451/08 preliminary ruling, para 73.

242

ECJ [2010] Case C-451/08 preliminary ruling, para 74.

243

ECJ [2010] Case C-451/08 preliminary ruling, para 74.

244

Jaouad ( 2010 ).

245

ICSID [2010] ARB/05/18 and ARB/07/15—Award, 23 para 77.
246 Already practiced in reality, in: ICSID [2010] ARB/05/18 and ARB/07/15—Award, 24-26
para 79; It can lead to problems, if a comparable product comes up and is favored by the state, in:
ICSID [2001] ARB/98/8—Award, 1 paras 1-2.
247 RAL ( 2010 ), 54.
248 Jaouad ( 2010 ); RAL ( 2010 ), 54.