On March 3, 2013, the 3rd Cartel Senate of the Düsseldorf Higher Regional Court ruled that the regulatory provision for exempting electricity-intensive companies from grid costs is void, and consequently annulled the implementing provisions issued by the Federal Network Agency based on this regulation.
Presiding Judge Wiegand Laubenstein clarified during the hearing and in the oral justification of the judgment that the Senate found no sufficient legal basis in the Energy Industry Act for the exemption from grid fees. The Energy Industry Act, in its currently valid version, only permits the determination of the method for calculating fees – the 'how' – through a regulation, but not a complete exemption from grid fees – the 'whether' – by regulation. Furthermore, the complete grid exemption for electricity-intensive companies had not been formally established correctly, as the amendment to the regulation was passed by the Bundestag in conjunction with a law unrelated to the provision. Moreover, a complete exemption from grid fees is impermissible on grounds of equality. From a European law perspective, a non-discriminatory and cost-based regulation of grid fees is also required.
Five regional and supra-regional grid operators had challenged the grid fee exemption for electricity-intensive companies. The Federal Network Agency had argued that the exemption was covered by the authorization. Energy-intensive operations, due to their high consumption, have a grid-stabilizing effect.
The amendment to Section 19 Paragraph 2 of the Electricity Grid Fee Ordinance has been in force since august 4, 2011, allowing electricity-intensive companies to be exempted from paying electricity grid fees. The Bundestag had adopted the amendment during its session on June 30, 2011. Prior to the amendment in august 2011, electricity-intensive companies could only agree on an individual grid fee, reduced by up to 20%, with their grid operator, which the regulatory authority could approve. The extent of the reduction had to adequately reflect the grid cost-reducing consumption behavior of the electricity-intensive end-consumer.
Since the amendment, companies can generally be exempted from grid fees if they consume more than 7,000 operating hours and 10 gigawatt-hours of electricity per year. The revenue shortfalls incurred by grid operators are compensated from 2012 onwards by distributing the grid fees that would otherwise be paid by electricity-intensive businesses nationwide among other end-customers, consumers, and companies. The net grid fee accounts for approximately 20% of the household customer electricity price (Federal Network Agency Annual Report 2011).
The decisions are not yet legally binding. An appeal on points of law may be lodged with the Federal Court of Justice against each decision within one month of service.
Appellants:
• Stadtwerke Ilmenau GmbH, Ref. No. VI-3 Kart 14/12 [V]
• NRM Netzdienste Rhein-Main GmbH, Ref. No. VI-3 Kart 65/12 [V]
• Amprion GmbH, Ref. No. VI-3 Kart 49/12 [V]
• TransnetBW GmbH, Ref. VI-3 Kart 43/12 [V]
• TenneT TSO GmbH, Ref. VI-3 Kart 57/12 [V]
Currently, over 100 proceedings are pending before the Senate of the Higher Regional Court (OLG) Düsseldorf, in which electricity grid operators and electricity suppliers are challenging the exemption from grid fees.
Source: Press release of the Higher Regional Court (OLG) Düsseldorf
Goldberg Attorneys at Law 2013
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law
Email: info@goldberg.de
