The shortest connection between a renewable energy installation and the grid connection point is not always the economically most suitable connection scenario. If the installation operator nevertheless insists on the shortest connection, the assessment as to whether the operator has wrongfully exercised its right to select the connection point solely depends on the additional costs resulting therefrom for the grid operator. The additional costs may not exceed by more than 10% the costs which the grid operator would incur if the installation was connected to the statutory connection point. This was confirmed by the Higher Regional Court (Oberlandesgericht – OLG) of Celle in its judgment (file ref. 13 U 44/15) in favour of the municipal utility company Stadtwerke EVB Huntetal GmbH, which were represented in court by Becker Büttner Held.
Grid operators are principally obliged to connect renewable energy installations to their grid using the connection point that is closest to the installation. In the event that there is an economically more suitable connection point, the Renewable Energy Sources Act (Erneuerbare-Energien-Gesetz – EEG) stipulates this point as the statutory connection point. In this respect, the Higher Regional Court of Celle confirmed that grid losses do not have to be considered in the total cost comparison of different connection scenarios. Furthermore, the court clarified that grid operators are not obliged to expand their grid if this does not result in a benefit regarding the energy supply situation or an improvement of the grid. In court, the installation operator argued that the connecting cable it installed would have had to be set up by the grid operator as a grid expansion measure. The Higher Regional Court did not follow this reasoning.
Since the installation operator furthermore wrongfully exercised its right to select the connection point pursuant to sec. 5 subs. 2 EEG 2009, the court also rejected the operator’s claim for damages. While the EEG allows installation operators to select a connection point which deviates from the connection point determined by the grid operator, this right of choice may not be exercised wrongfully. The Higher Regional Court of Celle now decided that the right of choice is wrongfully exercised if the additional costs incurred by the grid operator exceed a threshold of 10%. In the previous instance, the Regional Court (Landgericht – LG) of Verden, by contrast, had set a threshold that was significantly higher. Most notably, however, the Regional Court of Verden had applied a comparison of the total costs incurred in the different grid connection scenarios – as provided for under sec. 5 subs. 1 EEG 2009 – also in the case of subs. 2 (i.e. in the context of the installation operator’s right of choice). The Higher Regional Court of Celle quite rightly disagreed with this reasoning.
BBH partner and lawyer Dr Martin Altrock comments: “The question as to the right grid connection point of renewable energy installations is frequently subject of heated discussions. With its judgment, the Higher Regional Court of Celle now strengthened the position of grid operators, clarifying that in weighing up the arguments for and against different grid connection points, priority is to be given to finding the economically most suitable option. In terms of the right of choice pursuant to sec. 5 subs. 2 EEG 2009, the assessment whether such right was exercised in an admissible manner is to be based exclusively on the additional costs incurred by the grid operator.”
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Dr. Martin Altrock
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Dr. Ines Zenke
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