BGH Ruling on Contribution to Costs for Construction or Upgrade of Distribution Installations

The Federal Court of Justice (BGH) has delivered a ruling on contributions by electricity consumers who demand a connection to the electricity grids or the gas grids pursuant to Low Voltage Connection Ordinance (NAV) respectively the Low Pressure Connection Ordinance (NDAV). According to Section 11 NAV respectively NDAV, grid operators can claim contributions for the construction or the upgrade of distributors (Baukostenzuschuss für Verteileranlage).

Pursuant to Section 18 German Energy Act (EnWG) grid operators who are the general suppliers of final consumers in a municipality (allgemeine Versorgung von Letztverbrauchern) have, in derogation of the general provision for grid connection in Section 17 EnWG, to publish general terms for the grid connection of final consumers to the low voltage and low pressure grids and grant the access to their grids and the use thereof according to these terms to everyone. NAV and NDAV further define the obligations of the grid operators and the applicants.

According to Sections 11 NAV and NDAV the grid operators can claim an “appropriate contribution” from the consumers that seek connection to the grids, covering up to half of the costs arising in the course of an economically efficient operation of the low voltage respectively low pressure grids for the construction or the upgrade of the local distributors (Verteileranlage) including the transformer stations.

Sections 11 paras. 1 and 2 NAV and NDAV entitled the grid operator to charge a flat rate contribution calculated based on the average costs in similar cases (pauschal berechneter Baukostenzuschuss), BGH held. This right to unitlaterally determine the contribution could only be be measured against the yardstick of a provision in the Civil Law Code, which stipulates that such unilateral decisions have to be just (Billigkeitskontrolle, § 315 BGB), BGH further said.

Besides, Sections 11 NAV and 11 NDAV gave the grid operators discretion (Auswahlermessen) with regard to the choice of the calculation method for the contributions by the consumers, BGH ruled, saying that generally the so-called “Two-Level Model” (“Zwei-Ebenen-BKZ-Modell”) recommended by Verband der Netzbetreiber VDN e.V. beim VDEW, a predecessor of the Association for Electrical, Electronic and Information Technologies (VDE), provided an appropriate method for calculating the contributions for the construction and upgrade of distributors. The applicability of the method depended on the circumstances of the individual case and had to be decided by the judge who determined the facts (Tatrichter).

BGH further held that the obligation for grid operators pursuant to 17 para. 1 EnWG to connect consumers according to transparent general terms to their grids only applied in the context of the Section 18 para. 1 EnWG and NAV and NDAV as long as it did not conflict with the special provision of Section 18 EnWG. Hence, a calculation method that complied with Section 18 EnWG and NAV and NDAV did not violate the law.

Source: Federal Court of Justice, ref. no. VIII ZR 341/11

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