OLG Düsseldorf: Doubts About Legal Basis for StromNEV Grid Fee Exemption

During hearings in two summary proceedings regarding grid fee exemptions for energy-intensive companies pursuant to Section 19 para. 2 sent. 2 Electricity Grid Charges Ordinance (StromNEV), the 3rd Cartel Senate of the Higher Regional Court of Düsseldorf (OLG Düsseldorf) expressed doubt with regard to a sufficient legal basis for the exemptions, the radio and television station WDR reported.

According to a preliminary assessment, a grid fee exemption could only be granted by law, WDR quotes the presiding judge. StromNEV is an ordinance not a law adopted by parliament. It was originally enacted in 2005 by the government. Based on its summary review of the matter, the court also concluded that waiving grid fees did not constitute unlawful state aid since the money was not paid to government institutions. Therefore the court was currently not considering to involve the European Court of Justice as a statement by the European Commission suggested, WDR said.

The question of the legality of the Section 19 para. 2 sent. 2 StromNEV shall be further discussed in the principal proceedings, WDR said, pointing out that hearings are planned for spring next year. In total 166 cases are pending according to an OLG press release.

According to Section 19 para. 2 sent. 2 StromNEV, which entered into force on 4 August 2011, an exemption of grid charges can be applied for if the electricity consumption at a delivery point (Abnahmestelle) exceeds 7,000 hours and the consumption at said delivery point exceeds 10 GW. In the opinion of the Federal Network Agency (BNetzA), who has to decide on the requests for grid exemptions, exemptions can be granted retroactively starting 1 January 2011. According to preliminary estimates by BNetzA, grid exemptions for energy-intensive companies will amount to EUR 440 million in 2011 and approximately EUR 1.1 billion in 2012.

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). Depending on the energy consumption of the final consumer, the surcharge to the electricity costs applies in a staggered manner (see publication of the surcharge for 2012 by the transmission system operators). As levying the surcharge retroactively for 2011 would lead to difficulties with billing, the lost grid fees for 2011 shall be settled with payments to the grid operators in 2013 and later.

In the two summary proceedings, claimants seek preliminary relief concerning the billing method for 2011 (regarding claimant’s allegations and respondent’s defence please see here). This means that claimants have to include losses retroactively in their financial statements, WDR said. Based on its preliminary assessment, the court, however, did not find fault with the billing method for 2011, WDR reported. A decision shall be handed down on 14 November 2012.

Source: WDR