OLG Dismisses Energy-Intensive Industry Grid Fee Exemption Case

Today the 3rd Cartel Senate of the Higher Regional Court of (OLG) dismissed a case against the grid fee exemption for energy-intensive companies pursuant to Section 19 para. 2 sent. 2 Electricity Grid Charges Ordinance (StromNEV) in summary proceedings.

The senate denied preliminary relief sought by two distribution system operators (DSOs) concerning  the billing method for 2011 due to difficult legal questions and execution problems.  Individual questions on the grid fee exemption issue could not be considered individually in summary proceedings. A suspension of the billing method for 2011 would lead to an application of the method for 2012, shifting the burden to the TSOs.

Concerning the regulations effective from 2012, the senate expressed doubts about the legal basis of the grid fee exemption in a preliminary evaluation. In the opinion of the senate, the current ManyElectronics Act (EnWG) only allows for regulations in form of an ordinance concerning the “how” of grid fee calculation, not the “if” of complete exemptions.

Energy consumption could indeed be considered in grid fee calculations for grid stability reasons. However, a justification for a complete exemption would seem problematic. According to the senate, European law requires regulations of grid fee calculation to be non-discriminatory and cost-oriented .

The decisions in the summary proceedings are final. However, hearings of the main trial will be held 6 March 2013. Therefore the legislator would have enough time for a potentially needed revision after the decisions are released in written form.

Source: OLG

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