Key Benefits:
On Dispute Resolution and Sanctions Committee,
Seen request for dispute resolution, registered On March 11, 2011, under number 144-38-11, submitted by SPV Colomb, a one-person limited liability company, registered in the Pointe-à-Pitre register of commerce and companies under number B 514 035 377, whose registered office is 9, rue Nobel, zone industrielle de Jarry, 97122 Baie-Mahault, represented by its manager, Mr Jean BESTAUX, having for lawyer Olivier SCHMITT, cabinet De Pardieu Brocas Maffei, 57, avenue d' Iéna, 75773 Paris Cedex 16.
The society SPV Colomb a Before the Dispute Settlement and Sanctions Committee of the Commission, Regulation of the energy of the dispute between Electricité de France and Electricité de France (hereinafter referred to as ' EDF "), on the conditions of connection to the public electricity distribution network of a project of photovoltaic power station.
It is apparent from the documents in the file that the company SPV Colomb develops, in the territory of the commune of Basse-Terre (Guadeloupe), a project of photovoltaic power station with a maximum production capacity of 22.8 kVA. EDF is the manager of the public electricity distribution network on the territory of this municipality.
On 30 August 2010, the company Paragraph Solar France, acting on behalf of the company SPV Colomb, sent the company EDF a Complete application for a connection contract, access to the public distribution and operating system (hereinafter referred to as " CRAE contract "), for a production facility using radiative energy from the sun.
EDF has not issued a CRAE contract to the company SPV Colomb.
Considering that the conditions for connecting to its public distribution network Installation of photovoltaic production was not satisfactory, the company SPV Colomb has before the Dispute Settlement Committee and the sanctions of a request to settle the dispute between it and the company EDF.
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In its observations, SPV Colomb considers That the dispute settlement committee and the sanctions are competent to hear the dispute between the opponent and the EDF company, since no proposal for a connection has been communicated to it.
It adds that the absence of a reply to the Request for a CRAE contract by the EDF company depriving it of the opportunity to benefit from the purchase obligation rates set out in the order of 12 January 2010.
The company SPV Colomb considers that having sent its application for the CRAE contract to EDF the 30 August 2010 and, therefore, before the deadline of 2 September 2010 provided for by the decree of 31 August 2010, It must be entitled to the tariff conditions laid down in the order of 12 January 2010.
It maintains, moreover, that by failing to respond to the request for a CRAE contract, the EDF company deliberately placed it in a position to be concerned by The provisions of the decree of 9 December 2010 relating to the suspension of the obligation to purchase, while it could not ignore the occurrence of such a measure.
The company SPV Colomb considers, also, that in the light of the regulation and the Relevant technical documentation, including provisions relating to Time limit of three months for issuing a proposal for connection to the electricity producer, it could legitimately hope to obtain such a proposal before the date of 2 December 2010 to which a proposal must have been accepted To avoid the suspension of the obligation to purchase decided by the aforementioned decree.
It concludes that EDF is not entitled to rely on the decree of 9 December 2010 to oppose the communication of an expected CRAE contract in a Three months delay.
The SPV Colomb Company requests, therefore, the Dispute settlement and sanctions of the Energy Regulatory Commission, of:
-note the failure by the EDF company due to the lack of communication of a connection proposal within the three-month time limit;
-state that EDF is not entitled to rely on the decree of 9 December 2010 to oppose the communication of a proposal to connect to the company SPV Colomb;
-that the denial of access to the network is at fault;
And in Consequence:
A main title:
-order EDF to submit a proposal for a connection, within one month from the date of notification to EDF of the decision to intervene, under penalty of 500 € per day of delay, and to take note That the acceptance of this proposal for connection by the society SPV Colomb must be deemed to have been given on a date prior to 2 December 2010;
-enjoin EDF company to reintegrate its project into the queue of projects having done so The subject of a CRAE contract acceptance before December 2, 2010;
-order the EDF company To submit to it within 15 days of receipt of the proposal for a connection signed by the company SPV Colomb, under penalty of 500 € per day of delay, a draft CRAE contract in the terms of the proposal Communicated;
-take all necessary measures and have the EDF company take all necessary measures to enable it to benefit from the obligation to purchase the tariff conditions laid down by the order of 12 January 2010;
A Subsidiary title:
-order the EDF company to repair the financial damage suffered by the company SPV Colomb, consisting of the costs incurred by it in the production of its electricity generation facility of € 247,200.00 and the loss resulting from it The inability to benefit from the obligation to purchase at the rates set by the order of January 12, 2010.
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Due to the decision of April 29, 2011, by which the Disputes and sanctions suspended its investigation until the intervention of the Council of State decision on the annulment of the Decree n ° 2010-1510 December 2010.
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Due to the Director General's letter of May 3, 2012, the EDF company is asked to submit its comments.
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In view of the defence cases, Registered on June 15, 2012, presented by Electricité de France (EDF), an anonymous company, registered in the register of commerce and companies of Paris under number B 552 081 317, whose head office is located at 22-30, avenue de Wagram, 75008 Paris, represented by its legal director France, Mr Olivier SACHS, and Counsel, Emmanuel GUILLAUME and Simon DABOUSSY, firm Baker & McKenzie, 1, rue Paul-Baudry, 75008 Paris.
EDF argues that the dispute resolution and sanctions committee is not competent to hear the Dispute raised by SPV Colomb, which tends exclusively to obtain a contract Obligation to purchase at the rates set by the decree of 12 January 2010, and therefore concerns EDF as a purchaser of photovoltaic energy and not as a public electricity network manager.
It adds that the conclusions of the Company SPV Colomb seeking to order the issuance of a bridging agreement deemed prior to 2 December 2010 has the sole purpose of avoiding the suspension of the obligation to purchase put in place by the decree of 9 December 2010.
EDF considers, also, that the company SPV Colomb seeks, through the To avoid the obligation to purchase under the order of 4 March 2011, that the dispute concerns only the purchase of electricity, which does not fall within the scope of Article L. 134-19 of the The dispute resolution and sanctions committee is not competent to hear the applications submitted.
It adds that it was up to the SPV Colomb company to make a new request Connection to the end of the period of suspension, in accordance with the decree
considers, moreover, that it has duly instructed the application for the connection of the company SPV Colomb, but that it has not been able to do so because of the Survenance of the decree of 9 December 2010 and that this does not constitute a refusal.
It maintains that it did not commit any breach of its network manager obligations by not respecting the maximum period of three months allocated to it To send its offer of connection to the producer, on the one hand, because the specification The type of concession of the public electricity transmission network cited by the company SPV Colomb is not applicable to the dispute and, on the other hand, because the three-month period is purely indicative.
EDF also states that Article L. 134-19 of the Energy Code does not give jurisdiction to the Dispute Resolution Committee and sanctions to characterize and assess any prejudice resulting from the actions of the network manager considered to be at fault.
It submits, moreover, that its delay in repling is not a constituent Fault, the three-month time limit for sending a bridging agreement is only indicative, and has dealt with the demand of the SPV Colomb company with all due diligence, despite the exponential increase in applications to which it has had to Face, which is a " Foreign cause " Within the meaning ofArticle 1147 of the Civil Code.
The EDF company accordingly requests the Dispute Settlement Committee and Sanctions to reject the request of the SPV Colomb society as unfounded.
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Seen in response, recorded on July 6, 2012, presented by SPV Colomb.
SPV Colomb Company asserts That his application is neither inadmissible nor unfounded, and that the EDF in this sense makes a manifest error of law.
It considers, in fact, that its application is admissible in so far as it is not intended to require EDF to conclude a contract for the purchase of electricity, but To have the failure of the EDF company to fulfil its task of investigating connection requests.
SPV Colomb adds that, even if it is part of a global process whose purpose is the conclusion of a Contract for the purchase of electricity, his request tends to have a deficiency recognised in the Condition of inquiry of this application and cannot be confused with a possible request for a contract of purchase.
It supports the fact that the Dispute Settlement Committee and the Sanctions Committee is competent to see and sanction this Failure, without ruling on the suspension of the obligation to purchase imposed by the Decree of 9 December 2010.
SPV Colomb also considers that, according to the terms of Article L. 134-19 of the Energy Code, the Rules Committee Disputes and sanctions have jurisdiction to deal with any access dispute Public electricity transmission or distribution networks between public electricity transmission or distribution system operators and electricity producers, and not only disputes relating to conditions
It considers that the subject-matter of its application falls within the scope of the committee's jurisdiction, and that it is important for the Committee to have the effect of making it unenforceable by the decree of 9 December 2010, this one The fact that the failure to fulfil the obligations of the EDF company cannot be
. SPV Colomb adds that the compensation mechanism provided for in Article L. 342-3 of the Energy Code and by the Decree of 10 January 2012, which penalised non-compliance with the three-month deadline for processing applications for connection Installations of production of an installed power not exceeding 3 kVA, has the effect of conferring on that same period an imperative and non-indicative character.
It maintains, moreover, that the time limit for processing applications for connection by The manager of public electricity transmission or distribution networks, Of three months, has been established in an objective to secure the instruction of these applications and therefore applies equally to the installations, regardless of their power.
The company SPV Colomb asserts, therefore, that the absence of Penalty for exceeding this period for production installations of an installed power greater than 3 kVA shall not prevent the exercise by the Dispute Settlement Committee and the sanctions of its powers and that the finding of the Failure of EDF company must lead to the reintegration of its project into the queue
It notes, moreover, that EDF cannot avail itself of the provisions of Article 1147 of the Code Civil service which, on the contrary of its application, is the sole application for the payment of damages.
SPV Colomb adds that if EDF relies on the existence of a foreign cause, it cannot reasonably To argue that the influx of connection requests was a An unpredictable phenomenon, since the public authorities have successively implemented increasingly restrictive tariff provisions, and have considerably restricted the time limits for connection requests, and that managers Networks could reasonably have foreseen the occurrence of a decree suspending the obligation to purchase electricity.
It adds that, assuming, in the present case, the existence of a foreign cause, it cannot bear the consequences Events that are not attributable to it.
The SPV company Colomb persists, therefore, in its previous conclusions.
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Seen the other parts of the folder;
Given the energy code, including its articles L. 134-19 et seq;
Seen decree n ° 2000-894 of September 11, 2000 on the procedures applicable to the Energy Regulatory Board;
Seen decree n ° 2010-1510 of December 9, 2010 suspending The obligation to purchase electricity produced by certain installations using the radiative energy of the sun;
In view of the decision of 20 February 2009 on the rules of procedure of the Dispute Settlement Committee and the sanctions Committee on Energy Regulation;
In view of the decision of 11 March 2011 by the Chairman of the Dispute Settlement Committee and the sanctions of the Energy Regulatory Commission on the appointment of a rapporteur and a rapporteur Assistant for the investigation of the dispute settlement application registered under the Number 144-38-11;
Due to the April 29, 2011 decision of the Dispute Resolution Committee and the Commission for Energy Regulation Sanctions on Claims for Dispute Settlement Involving the Application of the decree n ° 2010-1510 of December 9, 2010 suspending the obligation to purchase electricity produced by certain installations using solar radiative energy;
Seen Decision of 9 May 2011 of the Dispute Settlement and Sanctions Committee Commission for the regulation of energy relating to the extension of the time limit for the investigation of the claim for dispute brought by the SPV Colomb Company;
In view of Decision No 344972 and other of 16 November 2011 of the Conseil d' Etat, society Ciel and Earth and others.
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Parties have been regularly called to the public meeting of the Dispute Resolution and Sanctions Committee, which was held on July 18, 2012, 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, Director General and Representative of the Director General prevented;
Mr Didier LAFFAILLE, Rapporteur, and Mr Jérémie ASTIER, Assistant Rapporteur;
Representatives of the SPV Colomb company, assisted by Anne RICHIER;
Representatives of EDF, assisted by Simon DABOUSSY.
After hearing:
-the report by Mr. Didier LAFFAILLE, presenting the parties' means and conclusions;
-the comments of Me Anne RICHIER for the company SPV Colomb; the company SPV Colomb asks the Dispute Resolution and Sanctions Committee To dismiss the comments in the rejoinder of the EDF company and persist in its pleas and conclusions;
-the observations of Me Simon DABOUSSY for the EDF company; the EDF company persists in its pleas and conclusions;
No postponement of the sitting Having been requested;
The Dispute Resolution Committee and the Sanctions Committee Deliberate on 18 July 2012, after the parties, the rapporteur, the deputy rapporteur, the public and the agents of the services withdrew.
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On the comments in duplicate of the EDF company:
These Comments that were registered on July 13, 2012, that is, upon receipt of the convening of the public sitting, the SPV Colomb society is entitled to request that they be dismissed from the
. Disputes and sanctions:
SPV Colomb argues that the Dispute Resolution and Sanctions Committee has jurisdiction over the refusal of the EDF company to provide it with a proposal for a connection and its consequences for the Connection to the network of its production facility.
EDF argues that the dispute settlement and sanctions committee is not competent to deal with the dispute raised by SPV Colomb, which tends to do so Evade this company from the provisions of the decree of 9 December 2010
Application for the benefit of the obligation to purchase the tariff conditions laid down by the order of 12 January 2010:
Article L. 134-19 of the Energy Code provides that 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 their use, in particular in the event of refusal of access or disagreement on the conclusion, The interpretation or performance of the contracts referred to in Articles L. 111-91 to L. 111-94, L. 321-11 and L. 321-12 [...], the reference to the Committee shall be at the initiative of either party [...]
. Company SPV Colomb relating to the benefit of the obligation to purchase the tariff conditions fixed by The order of January 12, 2010.
Accordingly, such a request does not fall within the jurisdiction of the Dispute Resolution and Sanctions Committee.
As to the request for a connection to the public distribution system of the facility Of production:
It is not disputed that an application for connection was registered by EDF, on 3 September 2010, and that there is a dispute concerning the connection of the production facility to the public electricity grid which is the responsibility of The jurisdiction of the dispute resolution and sanctions committee.
On the lack of knowledge by EDF of its reference technical documentation:
SPV Colomb requests the dispute resolution committee and sanctions to see the failure of the EDF company resulting from the absence of CRAE contract communication within the three-month period.
EDF supports That it did not commit any failure to fulfil its obligations as a network manager by not respecting the maximum period of three months available to it to send its offer of connection to the producer, therefore, on the one hand, that the Type of concession of the public electricity transmission network quoted by the company SPV Colomb is not applicable to the dispute and, on the other hand, that this period of three months is purely indicative.
The procedure for processing applications for the connection of electricity production facilities to public distribution networks Of the company ERDF, which is applied by the company EDF, and forms part of the reference technical documentation of the company EDF, provides in its version applicable to the species that the manager of the network will address to the producer a convention of Connection within the three-month period following the qualification of the application.
It is apparent from the documents in the file that the application for connection was addressed to EDF, on 30 August 2010, and that no CRAE contract was notified by the company EDF to the company SPV Colomb, which constitutes a lack of knowledge by the company EDF of its technical reference documentation which provides for its transmission within a time limit " ".
The company SPV Colomb is, therefore, founded to rely on the knowledge of the EDF company of its technical reference documentation, even if this obligation would not be an obligation of result.
On the application Decree of 9 December 2010:
SPV Colomb asks the Dispute Resolution Committee and the sanctions committee to say that EDF is not entitled to rely on the December 9, 2010, Order in Council to refuse to disclose a connection proposal.
It therefore requests the Dispute Resolution and Sanctions Committee to:
-order EDF to submit a proposal for a connection within one month from the date of notification to the EDF company of the decision to intervene, under penalty of 500 € per day of delay, and to take note That the acceptance of this proposal for connection by the society SPV Colomb must be deemed to have been given on a date prior to 2 December 2010;
-to order EDF to reintegrate its project into the queue of projects having done so The object of an CRAE contract acceptance before December 2, 2010;
-order the EDF company to send to it within 15 days from the receipt of the proposal for a connection signed by the company SPV Colomb, under penalty of 500 € per day of delay, a draft CRAE contract in the terms of the Submitted connection proposal.
The fact that EDF has disregarded its processing procedure for connection requests, if regrettable, does not allow the dispute settlement and sanctions committee Enjoin the EDF company to issue a CRAE contract to the SPV Colomb company under prevailing conditions Before the entry into force of the decree of 9 December 2010.
On the request for compensation for the financial damage suffered by the company SPV Colomb:
SPV Colomb asks the Dispute Resolution Committee and the sanctions committee to order EDF to compensate for the damage it has suffered as a result of the costs incurred in the production of its electricity generation facility 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 scope of the jurisdiction Give it Articles L. 134-19 and following of the Energy Code in respect of Dispute resolution, to convict one of the parties to compensation for damage suffered as a result of non-performance by the other party of its obligations.
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Decides:
The rejoinder of Electricité de France as of July 13, 2012, is dismissed from the debates.
The Dispute Resolution and Sanctions Committee has no jurisdiction to hear the claim for the benefit of the obligation Purchase and repair of financial damage.
Electricité de France has not experienced its processing of connection requests.
The excess demand for the Columbus SPV company is rejected.
This decision will be notified to the company SPV Columbus and Electricité de France. It will be published in the Official Journal of the French Republic.
Done at Paris, July 18, 2012.
For the
Dispute Resolution Committee and sanctions :
The President,
P.-F.
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