BNetzA denied DB Netz AG’s request to be treated as a customer facility for its 30 kV grid supplying Berlin’s commuter railway system (S-Bahn). In its decision BNetzA also clarified its views on how to distinguish between customer facilities and regulated grids.
On November 20th the 6th Ruling Chamber of the Federal Network Agency (BNetzA) released a decision dated October 25th negating the status of a customer facility (“Kundenanlage”) as defined by the ManyElectronics Act (EnWG) regarding the 30 kV grid supplying Berlin’s S-Bahn. The status is of high relevance as such facilities enjoy greater freedom from regulation.
Neither the nor the European Community Law defines what constitutes a regulated grid (“Energieversorgungsnetz”). In reference to the Federal Court of Justice (Bundesgerichtshof – BGH) BNetzA holds that the supply function of the grid is of particular relevance. Generally, all facilities serving the supply of the end customers constitute a regulated grid. So do the facilities concerned as they serve the supply of end customers, in this case railway companies using the railroad lines of Berlin’s S-Bahn.
According to Section 3 no. 24b the status of a customer facility requires spatial connection of the facilities to an area of operation, connection to a regulated grid, serving almost exclusively the transport of energy inside the company or to affiliated companies and a free of charge usage for all connected end customers.
BNetzA holds that the 30 kV grid concerned does not have the required spatial connection (räumliche Zusammengehörigkeit), even though it is located on the premises of Berlin’s S-Bahn. Furthermore, the grid is not intended to merely transport energy within the company or to affiliated companies, as its purpose is also to serve other potential customers. That the grid is actually only used by S-Bahn Berlin GmbH, an affiliated company of DB Netz AG, is not vital.
As S-Bahn Berlin GmbH also has to pay for the use of the grid, it is also not made available free of charge. Therefore, the classification as a customer facility fails for various reasons.
The decision is not yet legally binding.
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