Grid access fees for renewables - double billing criticized

Overview

In Austria, some grid operators have evolved the practice of charging grid access fees ‘twice’ when additional renewable energy systems such as photovoltaic systems (PV systems for short) are installed. This has led to displeasure and civil disputes. A new Supreme Court ruling is now expected, which should clarify the legal situation regarding the charging of grid access fees for the installation of renewable energy systems despite existing grid access.

Case study

Vienna Airport constructed two photovoltaic systems in 2021 and 2022 with nominal outputs of 11.484 MW and 5.220 MW, totaling 16.704 MW. The PV systems are connected to Vienna Airport's internal grid and cover part of the airport's energy requirements, whereby surpluses can be fed into the public grid. 

According to Vienna Airport, the installation of PV systems did not result in any increase in the (existing) connected load. Nevertheless, the: grid operator: charged a flat-rate grid utilization fee for the generation plants. The grid operator justified this by stating that a distinction should be made between grid access as an off-taker and grid access as a feeder with the required connected load. Both have different effects on the distribution grid and are therefore to be regarded independently of each other as grid access each requiring a grid access fee. Contractually, only a supply-side connection value had been agreed upon to date. A flat-rate grid access fee pursuant to Section 54 (3) and (4) of the Electricity Industry and Organization Act 2010 (‘ElWOG’) should therefore also be charged for PV systems. 

Vienna Airport objected with reference to para. 1 of § 54 ElWOG, which forms the basis for the incurrence of the debt for the grid access fee. According to this – so Vienna Airport – , the grid access fee is a one-time fee. This also applies if an additional generation system is installed, and the additional connection of the PV system does not result in an increase in the connected load. This has not changed with the 2021 amendment to the Electricity Industry and Organization Act (ElWOG), which introduced the regulation on the flat-rate grid access fee cited by the grid operators and, in this sense, deals with the charging of the grid access fee: While paragraph 2 provides for the charging of the costs actually incurred, paragraphs 3 and 4 (flat rate) are a special regulation for renewable energy systems, i.e. a so-called lex specialis compared to paragraph 2. However, § 54 para. 1 ElWOG 2010 continues to be the basis for the incurrence of the liability for the grid access fee. If the basic requirements set out in section 54(1) ElWOG 2010 are not met, this liability does not arise in principle. This means that the question of whether the fee should be charged at a flat rate or based on actual costs does not arise. It would also be inappropriate for network operators to receive a lump sum without any compensation in return. This would result in unjustified double charging. E-Control, the Vienna Commercial Court and the Vienna Higher Regional Court followed the airport's legal view. The decision of the Supreme Court is currently pending.

Previous opinion of the OGH

This is not the first time that the Supreme Court has dealt with the grid access fee under electricity law.

Even before the amendment to the Electricity Industry and Organisation Act (ElWOG), it stated in 4 Ob 18/19d (see also 10 Ob 31/12z, 2 Ob 133/13t) that the grid access fee is only a one-time cost for additional line installations that are directly (exclusively) required for the initial establishment of a connection or the extension of an existing connection. This case law confirms the statements made by Vienna Airport in the current proceedings, according to which double billing is not permitted, if the connection capacity has not increased in accordance with § 54 Para. 1 ElWOG.

Conclusion

The Supreme Court's decision will make waves. If the Supreme Court confirms its previous view that a grid access fee may only be charged once, many grid operators will be confronted with numerous claims for repayment under civil law. This means that any person who has (additionally) connected a PV system of 20 kW or more to the grid can reclaim the overpaid grid access fee in civil proceedings; in any case, this will be possible within 3 years of payment of the double grid access fee. However, it remains to be examined whether a longer limitation period (such as the 30-year limitation period under unjust enrichment law) should be applied.