Key Benefits:
The Dispute settlement and sanctions,
Given the dispute settlement application, registered on March 11, 2011, under number 67-38-11, submitted by the Renewable Energy Production Corporation, a limited liability company, Registered in the register of trade and companies of Fort-de-France under number B 479 835 829, whose head office is located, 8, zone de Manhity, 97232 Le Lamentin, represented by his legal representative, Mr. David Doumith, manager, having for Lawyer, Olivier SCHMITT, De Pardieu Brocas Maffei AARPI, 57, avenue d' Iéna, 75773 Paris.
The Renewable Energy Production Corporation (hereinafter referred to as " SOPRODER ") Referred the dispute to the Dispute Settlement Committee and the Energy Regulatory Commission of the dispute between Electricité de France (hereinafter referred to as "the Commission"). EDF "), on the conditions of connection to the public electricity distribution network of a project of photovoltaic power station located on the SDVI building in Cayenne (973).
The company SOPRODER submits that, having addressed its request for a Connection to the EDF company before 2 September 2010, its rights to the maintenance of the conditions of purchase fixed by the decree of 12 January 2010 were crystallised by the double effect of the obligation to purchase and the transitional provisions of The decree of 31 August 2010.
It also considers that if the provisions of the decree of 9 December 2010 relates to the only mechanism of the technical and financial proposal, the rules which it lays down more generally apply to the whole of the application for a connection, and in particular to the application for a convention of
The company SOPRODER considers that it is the result of both the provisions of the decree of 23 December 2006, approving the specification for the concession of the public electricity transmission network, and the procedure for the processing of Connection requests (reference ERDF-PRO-RES-21E), which EDF and any manager Distribution network has a period of three months to submit a connection offer to the producer.
It adds that EDF has committed a breach of its network manager obligations, which is akin to a refusal of access To the network, by sending it a connection agreement within a period of more than three months.
The company SOPRODER submits that such a failure causes direct and certain damage to it by placing its production installation project under the The moratorium put in place by the decree of 9 December 2010 and depriving it of the
accordance with Article 38 of the Act of 10 February 2000 (now Articles L. 134-19 et seq. Of the Energy Code), the competence of the Committee on the Rules of Procedure Disputes and sanctions extend to all disputes relating to access to networks without being limited to disputes relating to contracts specifically covered by this Article, as specified by the Commission for the Regulation of Energy in its Decision of 22 July 2004 on a dispute between the JMF IMMO and the EDF company
The company SOPRODER considers that the dispute between EDF and EDF concerns access to the network in so far as the network manager has failed to comply with its obligation under its mission, in Communicating, out of time, a connection agreement.
It states that the Energy Regulatory Commission considered, in a decision of 23 October 2003 on a dispute between the Société du parc wind de Montjoyer And the Société du parc wind de Rochefort-en-Valdaine to the company EDF, only if the texts Have instituted no mechanism to sanction the lack of knowledge of the three-month time limit for network managers to submit an offer of connection to the petitioner is a denial of access to the network.
SOPRODER Requests, therefore, the Dispute Resolution and Sanctions Committee of the Energy Regulatory Commission:
-to see the failure by the EDF company because of the lack of communication of a connection agreement within the three-month period;
-to say that EDF is not entitled to rely on the decree of 9 December 2010 To object to the communication of a connection agreement to the company SOPRODER;
-to say that the denial of access to the public distribution network is false,
and, as a result,
-enjoin the EDF company to submit to it a Connection agreement, within one month from the date of notification to the EDF company of the decision to intervene, under penalty of 500 euros per day of delay, and to take note that the acceptance of this connection agreement by the company SOPRODER must be deemed to be given on a date prior to 2 December 2010 ;
-order the EDF company to reintegrate its project into the queue of projects that have been the subject of a bridging agreement signed before December 2, 2010;
-to take all necessary measures to put the company SOPRODER Able to benefit from the obligation to purchase the tariff conditions fixed by The order of 12 January 2010;
-to order the EDF company to take all necessary measures to put the company SOPRODER in a position to benefit from the obligation to purchase the tariff conditions set by the order of 12 January 2010,
to In the alternative,
-to order EDF to make good the financial damage suffered by the company SOPRODER, consisting of the costs incurred by it in carrying out its installation of electricity production and the loss resulting from it The inability to benefit from the obligation to purchase at the rates set by the 12 January 2010.
In view of the defence observations, recorded on 1 June 2011, submitted by Electricité de France (EDF), an anonymous company, registered in the register of commerce and companies of Paris under number B 552 081 317, of which The head office is located at 22-30, avenue de Wagram, 75008 Paris, represented by its legal director France, Mr Olivier SACHS, and having for lawyers, Emmanuel GUILLAUME and Me Simon DABOUSSY, firm BAKER & McKENZIE SCP, 1, rue Paul Baudry, 75008 Paris.
EDF considers that the dispute resolution committee and the Sanctions are not competent to hear the dispute raised by the company SOPRODER as soon as the network manager has properly instructed the connection request and no refusal of connection can be characterized in this
. It submits that the request of the company SOPRODER is intended exclusively to escape the application of the suspension of the obligation to purchase provided for by the decree of 9 December 2010, in the sole objective of obtaining a contract of obligation to purchase Conditions laid down by the order of 12 January 2010. It observes, therefore, that the company SOPRODER does not in any way complain about the technical or financial conditions for connection that have been proposed to it. It invokes the decision rendered on 21 January 2011 by the Dispute Resolution Committee and the sanctions in a dispute between Nicodis and the company.
EDF adds that if the Energy Regulatory Commission has That the failure to comply with the three-month period for the issue of a technical and financial proposal could, under certain conditions, be regarded as a refusal of connection, that is not the case in the present case, since the company SOPRODER has been sent a proposal for a connection by the company EDF
Considers that the Dispute Resolution and Sanctions Committee is not competent to characterize any damage resulting from acts considered to be at fault on the part of the network manager, within the meaning of Article 38 of the Law of the 10 February 2000 (now Articles L. 134-19 et seq. Of the Energy Code).
EDF adds that the three-month time limit for sending a connecting agreement to a producer is indicative and that no penalty attaches to its Non-compliance.
It also indicates that the factual circumstances, In particular, the influx of applications for connection at the end of August 2010, under which the company SOPRODER was subject to the provisions of the Decree of 9 December 2010, cannot allow it to avoid the regulation that has been reached
The EDF company accordingly requests the Dispute Settlement Committee and the Energy Regulatory Commission's sanctions to reject the company's request as unfounded.
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Viewed in response, recorded on 15 June 2011, submitted by SOPRODER.
SOPRODER considers that its request for a dispute settlement is not to obtain an injunction to sign a contract for the purchase of electricity but to have the deficiency of the EDF company in the execution of its task of investigating connection requests.
It states that its request for the settlement of disputes is not comparable to that submitted by the company Nicodis, since that request is for Notice of the failure by the company EDF.
Company SOPRODER believes that, in this way, its dispute with the EDF company falls within the jurisdiction of the Dispute Resolution and Sanctions Committee.
It also states that it does not ask the Dispute Resolution and Sanctions Committee Order the EDF company to enter into a purchase contract with it.
The company SOPRODER considers that the fact that it has accepted the technical and financial conditions of the connection does not affect the existence of the deficiency Criticised by EDF.
It considers that the absence of a formal sanction provided for Article 38 of the Act of 10 February 2000 (now Articles L. 134-19 et seq. Of the Act) cannot prevent the use of the powers conferred on it by the provisions of Article 38 of the Act of 10 February 2000. Energy code) to acknowledge the materiality of the failure of EDF.
The company SOPRODER argues that the influx of applications at the end of August 2010, of which the EDF company prevailed, was foreseeable and could not justify The out-of-date processing of its application, which EDF has acknowledged on June 3, 2010.
It considers thatArticle 1147 of the Civil Code applies only to applications for damages for damages And cannot, therefore, apply to the requests made by the company SOPRODER.
The SOPRODER company persists, therefore, in its previous conclusions.
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In view of the rejoinder, Registered on June 27, 2011, presented by the EDF company.
EDF considers that the reference to the company SOPRODER is inadmissible in so far as it concerns a dispute relating to the obligation to purchase.
It considers that the request of the company SOPRODER is solely for the conclusion of a Contract for the purchase of electricity under the conditions set by the decree of 12 January 2010, which failed the application of the decree of 9 December 2010. It submits that the conclusions of SOPRODER and its reply comments are intended to obtain an injunction to sign a contract for the purchase of electricity.
EDF adds that it is not a member of the dispute settlement committee and The imposition of sanctions or a declaration of failure on its part, or order it to take all necessary measures to put the company SOPRODER in a position to benefit from the obligation to purchase the tariff conditions laid down in the order of 12 January 2010.
Finally, it considers that EDF cannot be responsible for any Any delay since the increase in connection requests is the responsibility of the Foreign cause " And that, as a result, the demand of the company SOPRODER for a declaration by the Dispute Settlement Committee and the sanctions a fault of the company EDF is not valid.
The EDF company continues, therefore, in its previous Conclusions.
In view of the training measure of 30 June 2011 by which the rapporteur, in charge of the investigation of the case, invited the company SOPRODER to prove, by any means, that it has addressed the signed connection agreement as of 1 December 2010 to EDF, as well as the date on which this shipment was made.
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In view of the statement of June 30, 2011, by which the rapporteur invited the company EDF to produce, all the evidence that SOPRODER has addressed the convention of Connection to the EDF company, as well as the date on which this took place.
In view of the letter, registered on 5 July 2011, by which the EDF company produced a copy of the transmission of the draft convention Connection of the SDVI project stamped on 2 December 2010 as well as the payment check Dated December 2, 2010.
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Seen the other parts of the folder;
Given the energy code, including its articles L. 134-19 and later;
Seen decree n ° 2000-894 of 11 September 2000 on the procedures applicable to the Energy Regulatory Commission;
In view of the decision of 20 February 2009 The rules of procedure of the Dispute Settlement Committee and the sanctions of the Regulatory Commission Energy;
In view of the decision of 11 March 2011 of the Chairman of the Dispute Settlement Committee and the sanctions of the Commission for the regulation of energy relating to the appointment of a rapporteur and an assistant rapporteur for the investigation of The claim for dispute registered under number 67-38-11;
In light of the May 20, 2011 decision of the Dispute Settlement and Sanctions Committee of the Energy Regulatory Commission to extend the time limit Statement of the dispute resolution request introduced by the company SOPRODER.
Parties have been regularly convened at the public meeting of the Dispute Resolution and Sanctions Committee, which was held on July 8, 2011, in the presence of:
Mr. Pierre-François RACINE, Chair of the Dispute Settlement and Sanctions Committee, Ms. Dominique GUIRIMAND, Ms. Sylvie MANDEL and Mr. Roland PEYLET, members of the Dispute Resolution and Sanctions Committee;
Mr. Olivier BEATRIX,
Didier LAFFAILLE, Rapporteur, and Mr Jérémie ASTIER, Deputy Rapporteur;
The representative of the company SOPRODER, assisted by Mr Emmanuel BACHELIER;
The representatives of EDF, assisted by Emmanuel GUILLAUME.
After hearing:
-the report by Mr Didier LAFFAILLE, presenting the means and conclusions of the parties;
-the observations of Me Emmanuel BACHELIER for the company SOPRODER; the company SOPRODER persists in its pleas and conclusions;
-les Mr Emmanuel GUILLAUME's observations for the EDF company; the EDF company persists in its pleas and conclusions;
-no postponement of meetings has been requested;
-the Dispute Settlement and Sanctions Committee having deliberated on 8 July 2011, after the parties, the rapporteur, the deputy rapporteur, the public and the Service agents have retired.
Facts:
The documents in the folder show that the SOPRODER company is developing A photovoltaic plant project built into the building, for an installed capacity of 104.72 kWc, on the SDVI building in Cayenne (Guyana). Electricité de France (EDF) is the manager of the public electricity distribution network on the territory of this municipality.
On 22 March 2010, the prefect of the Guyana region did not oppose the prior declaration filed, On 1 March 2010, Solar Electric Guiana, acting on behalf of the company SOPRODER, for the installation of photovoltaic panels on the roof of the SDVI building.
On May 21, 2010, Solar Electric Guiana addressed the Management of the island energy systems (SEI) of EDF an application Connection to the public distribution network for the production installation project.
On 3 June 2010, the company EDF informed the company Solar Electric Guyana of the validation of the technical data of its connection request and has Indicated that a connection agreement would be transmitted to it by 31 August 2010.
On 19 November 2010, the EDF company communicated to Solar Electric Guyana a convention for the connection of the photovoltaic project on the public network Distribution. EDF also recalled that Solar Electric Guiana had a period of three months to give its agreement and to pay the deposit of € 2,329.98.
On December 1, 2010, Solar Electric Guyana signed the A connection agreement transmitted by the EDF company together with a deposit check. These were deposited in the agency of EDF de Cayenne on 2 December 2010, the date on which EDF also signed the connection agreement for which it returned a copy to Solar Electric Guiana on 8 December 2010.
On 22 December 2010, the company EDF informed the company Solar Electric Guiana, that having filed the signed connection agreement and the deposit cheque after December 1, 2010, its project was affected by the Provisions of the Decree of 9 December 2010 suspending the obligation to purchase electricity Produced by certain installations using the radiative energy of the sun.
Considering that the conditions for connecting to the public distribution system of its production facility were not satisfactory, the company SOPRODER seized the Committee for the Settlement of Disputes and Sanctions of the Energy Regulatory Commission of an application to settle the dispute with EDF.
On the jurisdiction of the Dispute Settlement and Sanctions Committee:
EDF considers that the dispute resolution and sanctions committee is not competent to deal with the dispute raised by the company SOPRODER in that the network manager has properly instructed the connection request, and That no denial of connection can be characterized in this case. It submits that the request of the company SOPRODER is intended exclusively to escape the application of the suspension of the obligation to purchase under the decree of 9 December 2010.
The company SOPRODER considers that its request for a regulation The purpose of the dispute is not to obtain an injunction to sign a contract for the purchase of electricity, but to have the deficiency of the EDF company recognised in the execution of its task of instructing connection requests. It considers that its dispute with the EDF company thus falls within the jurisdiction of the dispute settlement and sanctions committee.
Article L. 134-19 of the Energy Code states: The Dispute Resolution and Sanctions Committee may be seized in the event of a dispute: 1 ° Between managers and users of public transmission or distribution networks [...] on access to such networks [...] or to The application of the contracts referred to in Articles L. 111-91 to L. 111-94, L. 321-11 and L. 321-12 [...], the referral to the Committee is at the initiative of Any of the parties. [...]. "
Under Article L. 134-20 of the Code: The decision of the Committee, which may be accompanied by periodic penalty payments, shall be reasoned and shall specify the technical and financial conditions for the settlement of the dispute.
It is apparent from the documents in the file that the reference to the company SOPRODER concerns the arrangements for the connection of a production facility to the public distribution network.
In those circumstances, the Dispute Settlement Committee and the Sanctions is, therefore, competent to know under the provisions of Articles L. 134-19 and L. 134-20 of the Energy Code.
On the finding of the failure by the EDF company because of the lack of communication of the Convention Connection within the three-month period:
The company SOPRODER claims that it is the result of the provisions of the decree of 23 December 2006 approving the specification of the type of concession for the public electricity transmission network, and the procedure for processing connection requests (reference ERDF-PRO-RES-21E), that the EDF company had a period of three months to send an offer of connection to the producer.
It is common ground that the three-month period has not been respected in this case.
However non-compliance with This period, if regrettable, does not allow us to consider that society SOPRODER must be deemed to have accepted at the end of this period, 31 August 2010, a bridging agreement which was addressed to it only on November 19, 2010.
On applications relating to the Decree of 9 December 2010:
SOPRODER asks the Dispute Resolution Committee and the sanctions committee to say that EDF is not entitled to rely on the decree of 9 December 2010 to oppose the communication of a connection agreement to the SOPRODER.
The solution to this request depends on the legality of the decree of 9 December 2010. In these circumstances, it is necessary to reserve such a request until the intervention of the decision on the merits of the Council Of the State, seized of an action for annulment of the said decree
The same applies, therefore, to Conclusions that the Dispute Settlement Committee and the Sanctions Committee should direct EDF to submit to the company SOPRODER a bridging agreement within one month, subject to payment of EUR 500 per day late, and Reintegrate its project into the queue of projects that have been the subject of a bridging agreement signed before December 2, 2010.
On applications for the benefit of the obligation to purchase the tariff conditions fixed by The order of 12 January 2010:
SOPRODER calls on the Dispute Resolution Committee and the sanctions committee to take all necessary measures to put SOPRODER in a position to benefit from the obligation to purchase the tariff conditions laid down in the order of 12
L. 134-19 and L. 134-20 of the Energy Code that a dispute does not fall within the competence of the Committee for the Settlement of Disputes and sanctions, which is a competence for attribution, and double Condition, holding, one to the quality of the persons that a dispute objects, the other, to the subject matter of the dispute. It is not sufficient, therefore, that a dispute between a network manager and a user is not necessary for the dispute resolution and sanctions committee to have jurisdiction to resolve it, it must also be that the object of the dispute be one of the
This is not the case with SOPRODER's requests for the benefit of the obligation to purchase the tariff conditions set by the order of January 12, 2010.
In these circumstances, these Applications can only be rejected.
On the claim for compensation for injury Financial to company SOPRODER:
SOPRODER asks the Dispute Resolution Committee and the sanctions committee to order EDF to repair the financial damage it has suffered, consisting of the costs incurred for the production of its production facility. Of electricity and loss resulting from the inability to benefit from the obligation to purchase at the rates set by the order of January 12, 2010.
However, it does not belong to the Dispute Resolution and Sanctions Committee, within the framework of The competence of Article L. 134-19 et seq. Of the Energy Code Dispute resolution, to convict one of the parties to compensation for damage suffered as a result of the non-performance of the other part of its obligations.
Thus, regardless of its scope, the latter may only be rejected.
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Decides:
The conclusions of the Renewable Energy Production Company, on the one hand, that it is deemed to have accepted before On 2 December 2010 the connection agreement signed on 1 December 2010 and, on the other, that the Committee for the Settlement of Disputes and Sanctions enjoin Electricité de France to take all necessary measures to put the SOPRODER company is able to benefit from the obligation to purchase the The tariff conditions laid down by the decree of 12 January 2010 and finally that Electricité de France be ordered to pay compensation for the financial damage suffered by the Renewable Energy Production Company are rejected.
It is time to stay the remainder of the Renewable Energy Production Company's requests until the decision is made On the basis of the Council of State on the decree of 9 December 2010.
This decision will be notified to the Société de production d' energies Renewable and to Electricité de France. It will be published in the Official Journal of the French Republic.
Done at Paris, July 8, 2011.
For the
Dispute and Sanctions Committee :
The President,
P.-F.
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