On 3 March 2013, the 3rd Cartel Senate of the Düsseldorf Higher Regional Court ruled that the regulation on the exemption of electricity-intensive companies from grid costs is null and void and therefore annulled the implementing provisions of the Federal Network Agency issued on the basis of this regulation.
Presiding Judge Wiegand Laubenstein made it clear at the hearing and in the oral statement of the reasons for the judgement that the Senate did not see a sufficient legal authorisation basis for the exemption from the grid charges in the Energy Industry Act. Thus, the Energy Industry Act in its currently valid version only allows to determine the method for calculating the fees, the "how", by means of an ordinance, but not to determine a complete exemption from the grid fees, the "whether", by means of an ordinance. Furthermore, the full exemption from the grid for electricity-intensive companies had not been formally established in the proper manner, because the amendment to the ordinance had been passed by the Bundestag with a law unrelated to the regulation. Moreover, a complete exemption from the grid charges was not permissible for reasons of equality. A non-discriminatory and cost-related regulation of the network charges was also required under European law.
Five regional and supra-regional grid operators had challenged the grid fee exemption for electricity-intensive companies. The Federal Network Agency had pointed out that the exemption was covered by the authorisation. Energy-intensive companies had a stabilising effect on the grid due to their high consumption.
The amendment to § 19 paragraph 2 of the Electricity Grid Charges Ordinance has been in force since 04.08.2011, according to which electricity-intensive companies can be exempted from paying electricity grid charges. The amendment was passed by the Bundestag in its session of 30 June 2011. Until the amendment in August 2011, electricity-intensive companies could only agree with their grid operator on an individual grid fee reduced by up to 20%, which the regulatory authority could approve. The extent of the reduction had to take appropriate account of the electricity-intensive end consumer's grid-cost-reducing usage behaviour.
Since the amendment, companies can in principle be exempted from the grid fees if they purchase more than 7,000 working hours and 10 gigawatt hours of electricity per year. From 2012 onwards, the loss of revenue for the grid operators will be compensated for by passing on the grid fees to be paid by the electricity-intensive companies to the other end customers, consumers and companies, nationwide. The net network charge accounts for about 20 % of the household customer electricity price (Annual Report 2011 of the Federal Network Agency).
The decisions are not final. Appeals against the decisions may be lodged with the Federal Supreme Court within one month after service.
Complainants:
- Stadtwerke Ilmenau GmbH, Ref. VI-3 Kart 14/12 [V]
- NRM Netzdienste Rhein-Main GmbH, Case No. VI-3 Kart 65/12 [V].
- Amprion GmbH, Ref. 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]
There are currently more than 100 cases pending before the Düsseldorf Higher Regional Court in which electricity grid operators and electricity suppliers are contesting the exemption from grid fees.
Source: Press release of the OLG Düsseldorf
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
