OLG Düsseldorf Annuls Two BNetzA Decisions on Redispatch Measures and Compensation

Two decisions by the federal grid regulator (BNetzA) concerning compensation for interventions in the operation of conventional power plants by the transmission system operations to stabilise the grids (so-called redispatch measures), were annulled by the 3rd Cartel Senate of the Higher Regional Court of Düsseldorf (OLG Düsseldorf) informed yesterday.

In 2012 BNetzA issued a decision laying down criteria when and in which order power plant owners can be required by the transmission system operators to reduce or increase the output of power plants.  Furthermore BNetzA had handed down a decision determining what it considered adequate compensation. Based on this decision operators subject to redispatch measures are generally only reimbursed for (direct) costs resulting from the measure (Aufwandsersatz), in particular fuel costs, based on average hourly contracts at the spot market of the power exchange. Only if redispatch measures relate to more than 10% of the output of a plant in the previous year, a higher compensation can be paid.

This compensation was too restrictive, OLG Düsseldorf held. Further costs related to the redispatch as well as lost profits were generally recoverable, the court said, pointing out that Section 13 para 1 a EnWG (German Energy Act) stipulated that in the case of redispatch measures “adequate compensation” had to be paid. BNetzA had discretion to determine how to take further costs and lost profits into consideration, e.g. by a lump sum payment or an individually calculated payment.

While the court did not object to most of the stipulations in the BNetzA decision concerning the implementation of redispatch measures and the order in which plants are affected, it did also annul the decision as it was interlinked with the decision on compensation, OLG Düsseldorf pointed out.

The Federal Association of the Energy and Water Industry (BDEW) welcomed the rulings. The association had criticised the BNetzA decisions back in 2012.

According to the last monitoring report by BNetzA, redispatch measures by the TSOs to secure supply in the sense of Section 13 para. 1 EnWG occurred on 232 days in 2013, mostly in the grid areas of Tennet TSO GmbH and 50 Hertz Transmission GmbH. They increased by 11% to 7,965 hours (2012: 7,160 hours). The measures had a total volume of 4,390 GWh. Reimbursements made by the TSOs amounted to EUR 132.6 million.

As compensation payments to the operators of power plants have to be eventually borne by consumers, it will be interesting to learn about the response by BNetzA to the OLG rulings. The figures from the last monitoring report show that there is a lot of money at stake.

Source: OLG Düsseldorf

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