The 3rd Cartel Senate of the Higher Regional Court of (OLG) has declared the provision in the Electricity Grid Charges Ordinance (StromNEV) void that provides for grid fee exemptions for energy-intensive companies. OLG also struck down implementing provisions concerning the grid fee exemptions issued by the Federal Network Agency (BNetzA).
The senate held that presently the ManyElectronics Act (EnWG) did not constitute a legal basis for the grid fee exemptions for it only allowed to regulate by ordinance the method for the grid fee calculations, or as the court put it the “how”, not the “if” of complete exemptions. Furthermore, the amendment of StromNEV that lead to the grid fee exemption was not adopted in a procedurally correct way as it was passed in connection with a law that had nothing to do with the matter. Besides, a complete exemption of the grid charges was unlawful as it violated the principle of equality. And from the European law perspective a non-discriminatory and cost-based regulation of the grid charges was needed.
Five regional and national grid operators had filed legal action against Section 19 para. 2 sent. 2 StromNEV, the provision allowing for the grid fee exemption. BNetzA had defended the provision saying it was covered by law. Besides, energy-intensive companies contributed to grid stability due to their large consumption.
The amendment of StromNEV, which introduced the grid fee exemption in Section 19 para. 2 sent. 2 StromNEV, was adopted by Parliament on 30 June 2011 and entered into force on 4 August 2011. Until that date large scale energy consumers could only agree on an reduction of the grid fees of up to 20% of the actual fee based on the individual contribution towards lower grid costs (cf. the still applicable Section 19 para. 2 sent. 1 StromNEV). Under 19 para. 2 sent. 2 StromNEV end consumers can apply for an exemption of grid charges if the electricity consumption at a delivery point (Abnahmestelle) exceeds 7,000 hours and the consumption at said delivery point exceeds 10 GW. The lost grid revenue is passed on to the remaining end consumers pursuant to Section 19 para. 2 sent. 7 StromNEV in combination with Section 9 para. 7 Combined Heat and Power Act (KWKG). According to the monitoring report for 2011 by BNetzA, grid charges represent roughly 20% of the electricity costs for household consumers, OLG pointed out. Regarding the Section 19 para. 2 sent. 2 surcharge for consumers, which applies in a staggered manner, please see here.
Appeals against the rulings can be made within a month after receipt of the decisions, OlG pointed out. The court also said that more than 100 cases in which utilities challenged the grid fee exemptions were still pending.
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