Data Centres: What Has Changed in the Draft Royal Decree?

Following the ending, on 10 September 2026, of the public consultation and hearing process on the Draft Royal Decree regulating the energy and environmental sustainability, resilience and digital sovereignty requirements applicable to data centres (Draft RD), a new version of the text has been circulating in the industry (New Draft).

In our previous briefing note, we analysed the content of the version submitted to public consultation. In this note, we focus exclusively on the changes introduced by the New Draft, which has been submitted to the Council of State for its consideration.

What is the status of the procedure? Can the Royal Decree be approved before the general election on 29 November?

The public consultation and hearing process on the Draft RD ended on 10 September 2026. Following the report of the National Markets and Competition Commission (CNMC), the Government has prepared a new text (analysed here) for referral to the Council of State, which incorporates changes arising from that report and from the public consultation. Because the Draft RD is being processed under the urgency procedure, the Council of State has fifteen days to issue its opinion, which, although mandatory, is not binding. Accordingly, even if the full urgency period is used, the opinion could be issued around 18 November. This would allow the Government to approve the final text, with or without changes to the New Draft, before the general election on 29 November 2026, as it has publicly stated.

The New Draft maintains entry into force twenty days after its publication in the Official State Gazette (BOE). This date should be borne in mind, as it determines the calculation of all the transitional periods analysed below. Note also that the transitional provisions have been renumbered (former Transitional Provisions 1 to 4 become Transitional Provisions 3 to 6, and former Transitional Provision 5 has been deleted). Unless otherwise indicated, references in this note are to the numbering of the New Draft.

What are the main changes?

Which data centres are now subject to the rules (Article 2)?

Background: The Draft RD applied the obligations to data centres with access capacity of 1 MW or more (and to groups of data centres located at the same site and under common ownership which, in aggregate, reached that capacity). It also defined “access capacity” as the capacity stated in the permits or, if higher, the capacity contracted under the ATR contract. Article 2.2 included network operators and the CNMC, within the scope of their respective powers. It only excluded data centres used exclusively for defence, civil protection and public safety.

The New Draft raises the access capacity threshold from 1 MW to 10 MW, above which data centres become subject to the Royal Decree. The threshold includes groups of data centres under common ownership, although the criterion for grouping has still not been specified. It also deletes the definition of “access capacity” and the reference to the CNMC in Article 2.2. As a new feature, the following are excluded: (i) facilities with ICT equipment whose main activity is not that of a data centre, in which only the capacity exclusively allocated to that activity is counted; and (ii) data centres of State public sector entities that are critical operators under Law 8/2011, or that are attached to such entities.

The threshold does not apply to the digital sovereignty obligations (Article 5). The disclosure obligations on energy efficiency and sustainability (Article 14) continue to apply to data centres with IT power capacity of 500 kW or more, unchanged from the Draft RD.

How have the digital sovereignty requirements (Article 5) been reshaped?

Background: In the Draft RD, Article 5 imposed on all data centres within its scope a set of general requirements (establishment in the EU, retention in the EU of data, metadata and records, traceability of support operations from third countries, supervision of direct subcontractors and measures against access by third-country authorities), to be demonstrated through two responsible statements. Their application (except for certain sections) was deferred, with no deadline, until a ministerial order was approved (former Transitional Provision 5, now deleted).

The New Draft removes resilience and focuses Article 5 on digital sovereignty. The data centre owner may not host systems in the HIGH category under the ENS unless three conditions are met.

• First: content and usage data must remain in the EU/EEA, unless an equivalent or alternative EU regime applies; metadata and telemetry are excluded.
• Second: operations from other countries are only permitted if they are technically essential, are logged and do not generate persistent copies outside the EU/EEA.
• Third: measures must be adopted against requests from third-country authorities that contravene EU law.

The conditions only apply once the owner has been notified that the system is classified as HIGH. The owner is not responsible for matters outside its control, but is responsible if the breach persists after a request to cure.

Two responsible statements are required: one submitted with the access and connection application and another submitted to the Ministry for Digital Transformation and Public Function (MTDFP) before hosting the first HIGH system. The first is a requirement for the permits (Article 4.1.a), so it appears to be required even for data centres that will never host HIGH systems, despite what the explanatory memorandum suggests.

Three serious uncured breaches may result in the loss of the access and connection permit. A ministerial order will implement these rules within six months; if it is not approved, the conditions will be directly applicable.

Projects holding permits but not yet connected (Transitional Provision 5) that have already been notified that they host HIGH systems will have twelve months to comply, without their permit lapsing. Article 5 also applies to European strategic projects (Transitional Provision 2).

What changes in the energy efficiency and water usage effectiveness requirements (Article 6)?

Background: The Draft RD required Class «A» of the European label for PUE (power usage effectiveness) and WUE (water usage effectiveness) and, during the transitional period, PUE ≤ 1.15 and WUE ≤ 0.1. Falling within Class «B» or lower for two consecutive years was deemed a serious breach, and the cure period (not less than three months) could be shortened where there was a serious and immediate risk. 

The New Draft requires both requirements to be Class «A», as follows: (i) for water usage effectiveness, the class under the European label; and (ii) for energy efficiency, the highest category resulting from the normalisation to be carried out according to use, the development or introduction of technologies and the different climates across Spain (to be implemented by ministerial order under the new Additional Provision 4). 

As a transitional measure (Transitional Provision 6), until the European labelling system and the energy efficiency methodology apply, the requirements are set at: PUE 1.25 (raised compared with the Draft RD); and WUE remains at 0.1. 

These levels must be achieved six months after the data centre starts operating and will be verifiable from the first full calendar year thereafter. 

In addition, the new Transitional Provision 8 provides for a longer transitional period for compliance with the energy efficiency requirement: data centres that have signed the ATR contract before 1 January 2029 must comply, until 31 December 2031, with a PUE ≤ 1.25 “in substitution for” the values in Article 6.1 and Transitional Provision 6. From 1 January 2032, they will be subject to Article 6.1 under the climate normalisation methodology.

How has the additionality requirement been relaxed (Article 8)?

Background: Under the Draft RD, the data centre had to cover 80% of its consumption through self-consumption or PPAs with renewable producers located in Spain, with facilities commissioned no more than 18 months before the data centre starts operating. The industry argued that this period and the restriction to renewable energy facilities were excessive.

The New Draft maintains the 80% threshold but introduces the following changes:

• A 36-month window: the commissioning certificate of the facilities may not be dated more than 36 months before the data centre starts operating, which is now identified solely with the signing of the ATR contract (the reference to first consumption has been deleted).
• It includes storage facilities located in Spain as counterparties to the PPAs.
• Repowering of generation and storage facilities (Article 7 of Royal Decree 997/2025) is also permitted for additionality purposes where it requires a substantial revision of the connection agreement (Article 7 of Royal Decree 647/2020). In these cases, the window is calculated from the date of revision of the connection agreement.
• It includes renewable biomass facilities (categories b.6, b.7 and b.8 of Royal Decree 413/2014) that have received the specific remuneration regime and reach the end of their regulatory life. In this case, the window is calculated from the end of that regulatory life.
• Photovoltaic exception. Photovoltaic facilities may be used regardless of their commissioning date, provided that they had not entered into any PPA when the Royal Decree enters into force.
• The verifying entity differs depending on whether additionality is demonstrated through:
  • Self-consumption: verified annually by the operator of the network to which the facilities are connected.
  • PPAs: verified annually by the system operator, Red Eléctrica (REE). Where the data centre connects to the distribution network, the distribution network operator will notify the system operator of the consumption facility and the associated facilities.
• Initial period (new Transitional Provision 7). Until 31 December 2028, data centre owners will have six months from the signing of the access contract to meet the additionality requirement.
• A specific regime is provided for European strategic projects (see What regime applies to European strategic digital sovereignty projects (Transitional Provision 2)? below).

What changes affect hourly matching and the surcharge regime (Articles 9 and 10)?

Background: In the Draft RD, the 80% hourly backing could only be achieved through self-consumption or PPAs with renewable producers. Surcharges were graduated in three bands (10%, 30% and 50%) according to the percentage of non-compliant hours in the month, increasing by 10 percentage points for each consecutive month of non-compliance.

The main changes in the New Draft are as follows:

• Storage. Backing with storage is admitted, and the energy it injects is presumed to be renewable. Specific calculation rules apply:
• Storage hybridised with generation facilities and holding demand permits. Each month, the energy drawn from the grid and the system’s renewable share in those hours are verified. The non-renewable portion is deducted from production in the following period or periods with net production.
• Storage not associated with generation (stand-alone). For each hour, the combined position of production and storage is considered. If production exceeds storage demand, only the difference is counted. If it is lower, the uncovered demand follows the rules for hybrid storage.
• Surcharge for failure to meet the hourly matching requirement, in five bands according to the total monthly non-compliance percentage: 10% (less than 5%); 15% (5%-10%); 30% (10%-20%); 70% (20%-50%); and 100% (50% or more).
• Total non-compliance percentage. This is the arithmetic mean of the month’s hourly percentages, calculated on the basis of the backing renewable energy and the energy consumed in each hour. It is 0% if backing is equal to or greater than 80% and 100% if there is no backing, with linear interpolation between the two.
• Annual escalation. The 10-percentage-point increase now applies for each additional consecutive year of non-compliance, rather than for each month as provided in the Draft RD.
• Allocation of revenues. Surcharges are treated as revenue of the electricity system under Article 2.2.d) of Royal Decree 148/2021.
• Reference to the Automatic Power Reduction System (SRAP). This general regime is adjusted during a transitional period for data centres that opt into the SRAP regime under the new Transitional Provision 1 (see the following section, How does the new transitional regime linked to the SRAP work?).

Has the regime for loss of the access and connection permits (Article 11) been amended?

There are no substantial changes to the grounds for loss (the procedural changes to Article 11 are analysed below). However, Article 11.1 now lists the grounds under letters a) and b) and deletes the conjunction “or” that framed them as alternatives, which could raise the question of whether they must occur cumulatively. The context suggests that they are alternatives, although the wording could be improved.

What changes for PPAs (Article 12)?

Background: The Draft RD required a minimum term of ten years, execution as a public deed (escritura pública), express reflection of the relationship between the data centre and the facilities, and the exclusion of matching arrangements based solely on guarantees of origin.

In the New Draft, the minimum term is reduced to six years, and an obligation on the producer of the associated renewable energy is added to redeem, at least once a year, the associated guarantees of origin before the CNMC, stating the data centre’s CUPS (the Spanish universal supply point code). The remaining requirements are maintained, in particular, execution as a public deed, the invalidity of financial contracts entered into by the parent company or group that do not reflect the relationship with the data centre, and the exclusion of products traded on organised markets whose renewable origin is evidenced solely by guarantees of origin.

How does the new transitional regime linked to the SRAP (Transitional Provision 1) work?

Under the new Transitional Provision 1, for the five years following the entry into force of the Royal Decree, data centres may meet the technical requirements to participate in the Automatic Power Reduction System (SRAP). In exchange, hourly matching is required on a progressive basis, instead of the 80% hour-by-hour requirement in Article 9: (i) until 31 December 2028, 60% of the energy consumed in the hours of period P1 corresponding to the relevant voltage level; and (ii) from 1 January 2029 until the end of the transitional period, 70% in P1 and 60% in P2.

Requirements to opt into the SRAP:

• The facility must be enabled in the SRAP and pass the enabling tests under operating procedure 3.11 of the CNMC.
• In the event of a contingency or a breach of the security criteria under operating procedure 1.1 of the CNMC, the data centre must be able to reduce its consumption to zero within the response time notified by the system operator following the readiness signal.
• In self-consumption arrangements, the generation schedule is not modified.

These data centres are considered preferential, as they are the first to respond to the readiness signal to reduce consumption.

To opt into this transitional regime, a responsible statement must be submitted together with the application for access and connection permits. Only facilities that start operating before 31 December 2030 may do so.

Withdrawal from the SRAP (voluntary or due to non-compliance) or failure to meet the requirements of operating procedure 3.11 may result in the loss of the access and connection permits (under Article 11, following notification by the system operator). Until the loss of the permit is declared, the system operator may adopt the measures it considers necessary, including disconnection of the facility, without any right to compensation and without this counting for quality of supply purposes. After the five years, the hourly matching requirement in Article 9 applies in full.

What regime applies to European strategic digital sovereignty projects (Transitional Provision 2)?

The new Transitional Provision 2 creates a specific regime for data centres that jointly meet the following requirements:

• European initiative: participation in EU calls launched before the Royal Decree to strengthen digital sovereignty (AI factories and gigafactories, supercomputers or projects submitted by the Government).
• European control of the equipment: the equipment is controlled by an entity established in the EU, without decisive influence from third countries. A third party, even a non-European one, may operate it under that entity’s direction, provided the entity can revoke the engagement.
• Neutral passive hosting: the building owner does not access the data or control the equipment.

Intermediating or reselling capacity controlled from third countries is not sufficient.

Application of this regime also requires two favourable and binding reports: (i) from the MTDFP, on the sovereignty conditions; and (ii) from the system operator, on the impact on the security of the electricity system. The regime applies once both reports are on the network operator’s file.

The special rules affect Articles 6 to 9:

• Efficiency:
  • Class C (PUE ≤ 1.35 and WUE ≤ 0.4) for data centres already operating or holding permits on entry into force;
  • Class B (PUE ≤ 1.25 and WUE ≤ 0.2) for data centres that start operating by 31 December 2029;
  • Class A (PUE ≤ 1.15 and WUE ≤ 0.1) for data centres that start operating from 1 January 2030.
• Additionality. 60 months instead of 36, excluding delays not attributable to the developer (e.g., REE connection infrastructure or delays in sectoral reports).
• Hourly matching. Referenced to the system’s average renewable generation share, reviewed annually and automatically.

Non-compliance leads to the surcharges and loss of permits under Articles 10 and 11.

Requesting the MTDFP report within the month following entry into force (or following the application, if later) suspends the transitional periods until both reports are issued. If either report is unfavourable, the periods resume.

Article 5 (digital sovereignty) continues to apply.

The conditions must be maintained throughout the regime, and changes of ownership, control or operation must be notified within one month. If the Ministry declares, after giving the affected party an opportunity to be heard, that any condition is no longer met, the general regime applies after three months.

What other procedural and institutional changes does the New Draft introduce?

• Loss of permits (Article 11): the procedure is initiated, at the request of the network operator, by the head of the senior body of the General State Administration responsible for energy policy, and this power can no longer be delegated. The decision is a final administrative decision. Loss of the permit is now notified to the affected party, the network operator, the network owner and the MTDFP. The ten-day procedure before the network operator and the network owner has been removed. Final administrative decisions under Articles 5.6 and 6.6 enable the network operator and the network owner to declare the loss of the access permit and the connection permit, respectively.
• Access disputes (Article 13): the CNMC does not review the substantive assessment carried out under Article 5. It only checks that a decision on the loss of the permit exists and that the data centre concerned is the one affected. Previously, it examined “whether the formal requirements were met”.
• Updating of parameters (Final Provision 4, formerly Additional Provision 3): the renewable share, PUE/WUE, coverage, additionality and temporal matching are updated by Spanish Ministry for Ecological Transition and Demographic Challenge (MITECO) order, following agreement of the Delegated Committee, rather than by resolution of the directorates general.
• Monitoring and evaluation (new Additional Provision 5): the CNMC will publish six-monthly reports. A joint evaluation will be carried out every two years, which may propose a review of thresholds and parameters.
• Capacity tenders (Final Provision 1): resilience and digital sovereignty criteria become optional. Voluntary commitments may be taken into account: data in the EU, capacity reserved for EU users and added value in the Union.

What issues remain open?

Although the New Draft introduces significant improvements, some of the industry’s main concerns remain unaddressed:

Ashurst Perkins Coie’s leading multidisciplinary data centre team can assist you with analysing the impact of the New Draft on your projects, project structuring and financing, the negotiation of PPAs and colocation agreements, and regulatory strategy. Please do not hesitate to contact us.