OLG Hamm: DSO Must Connect Wind Power Plant at Nearest Grid Connection Point

In a recent ruling the Higher Regional Court of Hamm (OLG Hamm) decided that the distribution system operator had to connect the wind power plant at the nearest grid connection point for his grid. Failure to do so resulted in liability for damages.

In the case at hand, defendant had connected the wind power plant of plaintiff not at the nearest connection point for its grid.  The distribution grid operator (DSO) alleged grid congestion and claimed that the costs for reinforcing the grid at the nearest connection point were unreasonable. Defendant demanded roughly EUR 190,000 in damages resulting from additional costs for the grid connection.

OLG Hamm ruled in favour of plaintiff, upholding a ruling by the Regional Court of Arnsberg. Pursuant to Section 5 para. 1 Renewable Energy Sources Act (EEG) 2009, defendant was obliged to connect plaintiffs wind power plant at the nearest technically suitable point of connection with its grid, even if this entailed reinforcement measures. An exception could only be made if another grid offered a technically and economically more favourable grid connection point.

In the past the Federal Court of Justice (BGH) had ruled that similar provisions in the EEG 2000 and 2004 had to be interpreted in a way that a cost comparison had to be carried out, even if the two possible grid connection points belonged to the same grid. BGH had based its judgements on the aim of the law to avoid economically unreasonable costs and the reasons given in the legislative memorandum with respect to Section 13 para. 1 sent. 1 EEG 2004.

In a comprehensive analysis of the wording of Section 5 para. 1 EEG 2009 and the following para. 2, the aim of the provision and the reasons given for it, OLG Hamm concluded that the BGH rulings did not apply to Section 5 para. 1 EEG 2009.

The court granted leave to appeal, as it considered the interpretation of Section 5 para. 1 EEG of fundamental importance.

Source: OLG Hamm, decision of 3 May 2011, ref. no. I-21 U 94/10

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