Legality of New Grid Fee Exemption for Privileged Grid Usage Questioned

The utility Elektrizitätswerke Schönau (EWS) located in the Black Forest said it doubted the legality of the Section 19 StromNEV surcharge due to grid fee exemptions for energy-intensive enterprises. It announced to submit its opinion to the German grid regulator, the Federal Network Agency (BNetzA).

BNetzA has lately presented a draft decision on the matter and asked the parties concerned to comment. Should this not help, EWS was thinking of appealing BNetzA’s decision and/or taking legal action, the company said.

EWS is a utility with roots in citizens’ movements against nuclear power, which meanwhile operates the local grid, supplies customers nationwide with green energy and invests in renewable energy projects.

The surcharge which EWS opposes is a result of Section 19 para. 2 sent. 2 Electricity Grid Charges Ordinance (StromNEV) as amended by the Act Amending Energy Law related Provisions in July this year. According to this provision, end consumers can apply for an exemption of grid charges if the electricity consumption at a delivery point (Abnahmestelle) exceeds 7,000 hours and the consumption at said delivery point exceeds 10 GW.

Based on the draft decision by BNetzA, the four TSOs (Amprion GmbH, 50Hertz Transmission GmbH, EnbW Transportnetze AG and Tennet TSO GmbH) have recently published preliminary surcharges, amounting to 0,161 ct/kWh for 2011 and 0,467 ct/kWh for 2012. They are required by law to reimburse downstream network operators for lost revenue. Among themselves TSOs have to balance the reimbursements to downstream network operators as well as their own lost revenue. The surcharge covering the lost revenue is then passed on to 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 applies in a staggered manner, with consumers with an energy consumption exceeding 100,000 kWh paying reduced surcharges for amounts beyond 100,000 kWh.

The publication of surcharge figures was covered by numerous media sources and heavily criticized by the Federal Association of Consumer Protection Agencies (vzbv). In line with vzbv, EWS criticises that private households will mainly have to bear the surcharge. Even middle-sized companies would see their electricity prices rising considerably, the company also points out. According to its lawyers there were serious doubts regarding the legality of the Section 19 StromNEV surcharge and its compatibility with the German Energy Act (EnWG) and EU law, EWS said without further elaborating. Regarding German law the unequal treatment of small and energy-intensive consumers springs to mind. Section 21 para. 1 EnWG states that inter alia terms and conditions and grid fees have to be applied indiscriminately.

Neither the reasons given for the amendment of Section 19 StromNEV nor a guideline published by BNetzA deal with a possible incompatibility of Section 19 StromNEV or defend its legality. Section 1.5 of the guideline, however, mentions that the former Section 19 StromNEV that only provided for the possibility to arrange for individual grid charges (still possible under Section 19 para. 1 sent. 2 StromNEV) but not a full exemption, contained the limitation that grid charges for all other grid users must not increase significantly.

Source: EWS

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