In a case concerning the grid connection of a wind farm, the Federal Court of Justice (BGH) annulled the decision of the previous instance, a Higher Regional Court (OLG), in favour of plaintiff (the wind park operator) and referred the case back to the OLG. The ruling sets out BGH’s interpretation of the suitable grid connection point in the sense of Section 5 para. 1 sent. 1 Renewable Energy Sources Act as applicable as of 2009 (EEG 2009).
Since the amendment of the EEG that entered into force on 1 January 2012 modified Section 5 para. 1 sent. 1 EEG only very slightly by one word, the ruling is also important for the interpretation of Section 5 para. 1 sent. 1 EEG 2012.
According to Section 5 para. 1 sent. 1 EEG, grid system operators shall without undue delay and as a priority connect installations generating electricity from renewable energy sources and from mine gas to that point in their grid system (grid connection point) which is suitable in terms of the voltage and which is at the shortest linear distance from the location of the installation if no other grid system has a technically and economically more favourable grid connection point.
In the case at hand, defendant (the grid operator) wanted to connect the wind turbines of plaintiff not to the grid connection point with the shortest linear distance, but to another grid connection point in his own grid some kilometers further away, claiming this was the technically and economically more favourable grid connection point. The question arose whether the wording “if no other grid” in Section 5 para. 1 sent. 1 EEG could be interpreted so as to include not only different grid connection points in third party grids, but also different grid connection points in the grid of the grid operator responsible for the grid connection.
BGH ruled that this was the case, saying the obligation for the grid operator to connect plants generating electricity from renewable energy sources or mine gas to his grid pursuant to Section 5 para. 1 sent. 1 EEG only existed regarding the technically and economically most suitable grid connection point. This point had to be determined from an overall macroeconomic point of view. It did not matter if this grid connection point was (not in a different, but) in the grid operator’s own grid. For its interpretation BGH referred to the history of the provision, saying the 2009 amendment of Section 5 para. 1 sent. 1 EEG, should not change the previous legal situation. Besides, the court argued that a different interpretation would lead to unfair advantages of plant operators for whom a different and economically more suitable grid connection point in the grid of the grid operator responsible was possible in comparison with plant operators who were referred to a more suitable grid connection point in a different (third party) grid according to Section 5 para. 1 sent. 1 (last half).
With a view to Section 5 para. 2 EEG, according to which installation operators are entitled to choose another grid connection point in this grid system or in another grid system which is suitable with regard to the voltage, BGH stated that the plant operator could choose a grid connection point that had the shortest linear distance from the location of the installation. However, the plant operator was precluded to do so if his choice constituted an abuse of his right in the sense of Section 242 Civil Code. This was the case if the costs for a grid connection to the point chosen by the installation operator resulted in costs for the grid operator that were “not insignificantly” higher than the costs for a grid connection to the macroeconomically most suitable point.
Source: BGH (ref. no. VIII ZR 362/11)