The Government has passed the most decisive and complex legal examination to carry out its control and management plan for large digital infrastructures before the election. According to the mandatory opinion of the Permanent Commission of the Council of State, to which EL PAÍS and CincoDías have had access, the supreme advisory body has rejected the main substantive claims promoted by the private sector and various autonomies, clearing the legal path for the Executive to approve the Royal Decree on data centers in the Council of Ministers before the general elections on November 29.
The appellants denounced an alleged invasion of regional powers, a violation of the principle of reserve of law requiring that the regulation be processed as a bill and not by Royal Decree, and an alleged lack of justification in the urgent processing. The ultimate objective of these questions was to force the actions to be reversed or restart procedures - such as returning the rule to the National Markets and Competition Commission (CNMC) or forcing prior community notification - which in practice would have completely prevented the text from seeing the light before the November 29 elections.
Faced with these claims, the advisory body chaired by Carmen Calvo approved the opinion unanimously in its session on November 6, 2026, without recording any particular vote. Despite this final consensus, an intense technical-legal debate took place within the institution that forced the deliberations to be prolonged and delayed the final approval until Friday, one day later than initially planned.
The most eloquent proof of the full viability of the project lies in the final formula with which the opinion of the institution chaired by Carmen Calvo concludes, where it is unequivocally established "that, once the essential observations specified in section VIII of this opinion have been taken into account, and the rest considered, the draft Royal Decree subject to consultation can be submitted to the Council of Ministers for approval." This is an express authorization that the Council of State systematically omits when it considers that a rule violates legality or when it detects irremediable flaws in its approach.
In its substantive conclusions, the advisory body strongly supports the basic pillars of the standard. The opinion establishes that "the Council of State does not question the competence of the State to approve the norm" and categorically certifies that "the range of the norm (royal decree) conforms to the requirement established in the first additional provision of Royal Decree-Law 7/2026, already transcribed. Nothing is objected, therefore, for this reason." Likewise, the statement defeats the claims of procedural nullity by pointing out that “the Council of State does not question the urgency, as agreed by the Council of Ministers.” Likewise, it deactivates complaints about an alleged harmful retroactivity and expressly guarantees that the new conditions apply to projects that already have access and connection permits granted but that have not yet begun to operate effectively.
The Council of State expressly aligns itself with the purposes pursued by the text and emphasizes that it “shares the purposes of the project as it seeks to ensure digital sovereignty, guarantee energy and water efficiency, and avoid negative impacts on the electrical system, particularly with regard to renewable generation objectives.” The opinion warns that, according to data from the CNMC, access rights to the network have been granted that completely exceed the provisions of the Artificial Intelligence Strategy. As it is an electricity consumption that the resolution itself defines as “flat or continuous and uniform”, an uncontrolled deployment would strain wholesale prices and threaten compliance with climate milestones. Faced with this, the institution appeals directly to article 45 of the Constitution and the inexcusable mandate of the public powers to ensure the rational use of natural resources to justify imposing rigorous management requirements.
During the hearing process, the Community of Madrid and a total of 23 entities, associations and companies presented their allegations before the Council of State. Among them are the largest electricity companies in the country grouped in Aelec (Iberdrola, Endesa and EDP), global technology giants such as Microsoft, promoters and operators of data centers through SpainDC or large construction and real estate groups such as ACS and Merlin Properties, industrial and renewable conglomerates such as Ignis Energy, the Spanish Artificial Intelligence Gigafactory, AEE, APPA, CIDE and ACOGEN, and even representative associations from other areas such as Farmaindustria, Ecologists in Action and employers such as CEOE and AMETIC.
Despite the general support, the opinion does not constitute a blank check. The Government will have to introduce specific modifications to the articles to incorporate four essential observations established by the advisory body. Meeting these demands is vital for the Executive to protect itself from the foreseeable judicial battle that companies will fight in the Supreme Court. The aspiration of the Ministry for the Ecological Transition is to approve the norm with the legal formula “in accordance with the Council of State”, which would certify that all its substantive warnings have been accepted and would reduce to a minimum the options for the courts to provisionally suspend the decree.
Firstly, the opinion requires substantially strengthening the Regulatory Impact Analysis Report (MAIN), exhaustively justifying why territorial and sectoral allegations of special relevance have been rejected, while calling for rigorously quantifying the economic impact that the new burdens and demands will have on data center promoters. Secondly, the advisory body demands to place control and supervision in strictly public hands, reducing the excessive role that the initial draft granted to Red Eléctrica and the distributors. The third essential observation requires the sanctioning regime to be defined and outlined with greater legal precision, clarifying the penalties and clearly classifying the exact causes that may lead to the loss or expiration of access and connection permits. Finally, the fourth requirement involves eliminating any hint of administrative discretion, eliminating the ministerial authorization that allowed modifying the renewable correlation requirement percentages set in the standard, such as the 80% threshold.
Along with these essential reservations, the text contains various non-essential observations that the ministerial department also intends to integrate into the final version. The most relevant revolves around the European TRIS procedure, where the advisory body confirms that other community partners such as Germany, France, Italy or the Netherlands have followed disparate criteria when regulating the sector, which is why it asks Spain to reinforce the technical justification in the report without this having to imply a paralysis of the regulatory process.
After receiving this endorsement, the legal and technical teams of the Ministry for the Ecological Transition are already working against the clock to polish the memory and the articles over the next few days. The institutional calendar does not allow delays: the objective is to submit the text to the General Commission of Secretaries of State and Undersecretaries for immediate submission to the Council of Ministers. Having ruled out the meeting on Tuesday the 10th due to lack of time, the Government aspires to approve the Royal Decree on November 17 or, at the latest, on Tuesday, November 24, the last ordinary ministerial conclave before the elections of November 29 and the consequent transition to an acting Executive.
