Key Benefits:
The Dispute Resolution and Sanctions Committee,
Viewed by the Dispute, recorded on August 24, 2011, under number 232-38-11, submitted by:
Mr. Jean Claude GIRAUD, of French nationality, remaining 20, pas Couzy, 81990 Cunac;
Mme Arielle IMBERT, de nationality française, staying 29, avenue Saint-Pierre, 06110 Le Cannet;
Mr. Jean-Claude KUO, de nationality française, Remaining 148, avenue de la République, 94290 Villeneuve-le-Roi;
Mme Allain Isabelle GAUDINAUD, de nationality française, staying chemin des Pignaton, 06330 Roquefort-les-Pins;
M. Xavier DURA, de nationality française, staying 13, rue Jules-Guesde, 59510 Hem;
Mr. Alain LAUFFENBURGER, of nationality French, remaining 6, rue Marcellin-Berthelot, 67380 Lingolsheim;
Société GIDINAUD SURDITÉ, limited liability company, registered in the register of commerce and companies of Nice under number B 408 742 906, whose registered office Social is located 11, boulevard Victor-Hugo, 06000 Nice, represented by its manager, Mme Isabelle ALLAIN,
having constituted between them a holding company named Sam Lock, having for lawyer Frédéric BOUHABEN, firm ASA, 2, rue Odette-Jasse, Les Portes d' Euromed, 13015 Marseille.
Sam Lock has seized the Committee for the Settlement of Disputes and Sanctions of the Commission for the Regulation of Energy of the Dispute against 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 Sam Lock is developing a project of photovoltaic power station, of a power of Maximum production of 32.6 kVA, on the territory of the municipality of Bras-Panon (Réunion). The EDF company is the manager of the public electricity distribution network on the territory of this municipality.
On 30 August 2010, SETB, acting on behalf of the company Sam Lock, sent a request for a connection to EDF company for the photovoltaic power plant project. This application was received by the EDF company on 2 September 2010.
On 24 September 2010, the Mayor of Bras-Panon issued an order for non-opposition to the pre-construction declaration.
On 9 November 2010, EDF a Asked the SETB company, to provide a numbering certificate to determine the exact address of the project, to indicate the rated power of the facilities and to accurately describe the corrugators.
On November 10, 2010, SETB Provided the particulars of the corrugators but did not provide the certificate of
On December 17, 2010, the Town Hall of the Town of Bras-Panon issued the numbering certificate.
Considering that the conditions for connecting to the public distribution system of the production facility were not satisfactory, Sam Lock has referred to the Dispute Resolution and Sanctions Committee an application to resolve the dispute with EDF.
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In its Observations, the company Sam Lock submits that no further action had been taken by the EDF company at its request for connection, it could not notify the acceptance of the technical and financial proposal before 2 December 2010 and thus be out of business. The scope of the moratorium suspending the purchase of electricity generated by photovoltaic installations.
It states that the procedure for processing applications for the connection of electricity production facilities provides for That EDF has a period of three months to carry out the study And to forward it to the applicant in the form of a technical and financial proposal.
The company, Sam Lock, considers that EDF, by not respecting this period, has deprived it of the benefit of the tariffs in force before the Moratorium.
As a result, Sam Lock requests the Dispute Resolution and Sanctions Committee of the Energy Regulatory Commission to:
-in the main proceedings, to direct EDF to transmit without delay a technical and financial proposal for connection, to the tariff in force before the moratorium adopted by the decree of 9 December 2010, by excluding the application of the Order, suspending the obligation to purchase electricity produced by certain installations using the radiative energy of the sun;
-in the alternative, to allocate to the applicants a provision of EUR 50 000 on damages and Interest, arising from the damage suffered as a result of the failure of the EDF company to fulfil its obligations Obligations, pending accurate and final encryption.
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Given the decision of September 7, 2011, by which the Dispute Resolution Committee and the Sanctions Committee suspended the processing of the application Until the intervention of the Council of State decision on the cancellation of the Decree n ° 2010-1510 of 9 December 2010.
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In view of the Director General's letter of 4 September 2012, by which he is Asked the EDF company to submit its observations.
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In view of the defence observations, recorded on 12 October 2012, presented by Electricité de France (EDF), an anonymous company, registered in the Register du commerce et des sociétés de Paris under number B 552 081 317, whose head office is located 22-30, avenue de Wagram, 75008 Paris, represented by its legal director, Olivier SACHS, having for lawyer Me Emmanuel GUILLAUME and Me Simon DABOUSSY, Baker & McKenzie Firm 1, rue Paul-Baudry, 75008 Paris.
EDF Company Maintains that, pursuant to Article L. 134-19 of the Energy Code, the Dispute Resolution and Sanctions Committee is not competent to rule out the application of the decree of 9 December 2010 because of the alleged failure of the EDF company, Neither to characterize the potential harm resulting from this breach nor to rule on the rate of purchase to which the project could benefit.
It states that the Dispute Resolution Committee and the Sanctions Committee may not direct it to Provide Sam Lock with an offer to connect the fact of an alleged Failure of the EDF company, since it is not competent to observe this breach.
EDF indicates, moreover, that the company Sam Lock has made a new application for connection for its project on 27 July 2011, as foreseen Article 5 of the Decree of 9 December 2010, which determines the benefit of the obligation to purchase such a formality for projects suspended pursuant to Article 1.
It submits that Article L. 134-19 of the Code of Energy does not provide jurisdiction to the Dispute Resolution and Sanctions Committee for Decide on the tariff on which the project could benefit.
EDF considers that the dispute settlement and sanctions committee cannot grant the request that it be ordered to pay a provision in Compensation for the financial damage that the applicants claim to have suffered.
It submits that the three-month time limit for sending a connecting agreement to a producer is indicative only and adds that the Paris Court of Appeal has Confirmed this position in view of the fact that the failure to comply with this deadline is not accompanied by sanctions. It concludes that the dispute settlement committee and the sanctions cannot order EDF to issue an offer of connection to the conditions prevailing before the coming into force of the decree suspending the obligation to purchase
EDF indicates that the connection request of the company Sam Lock has been dealt with diligently, knowing that it had to deal with an exponential increase in connection requests, which is a foreign matter for the EDF company As defined in section 1147 of the Civil Code.
It concludes that the alleged delay in the company connection request statement Sam Lock cannot allow him to subtract his project from the application of the regulations resulting from the decree of 9 December 2010.
The EDF company accordingly requests the Dispute Settlement Committee and the sanctions to reject the application From the Sam Lock company.
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Vu The fax, registered on 10 January 2013, submitted by the company EDF.
EDF asks the Dispute Settlement Committee and the sanctions committee to rule out any further comments made by the company Sam Lock December 27, 2012.
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Seen the other parts of the folder;
Given the energy code, including its articles L. 134-19 et seq. And its article L. 314-6;
Seen Order No. 2000-894 of September 11 2000 amended relating to the procedures applicable to the Energy Regulatory Commission;
Seen Decree n ° 2010-1510 of 9 December 2010 suspending the obligation Purchase of electricity generated by certain installations using radiative energy from the sun;
In view of the decision of 20 February 2009 on the rules of procedure of the Dispute Settlement Committee and the sanctions of the Commission Energy regulation;
In view of the decision of 24 August 2011 of the Chairman of the Dispute Settlement and Sanctions Committee of the Energy Regulatory Commission for the appointment of a Rapporteur and an Assistant Rapporteur for the investigation of the claim for dispute registered under Number 232-38-11;
In view of the October 20, 2011 decision of the Committee for the Settlement of Disputes and Sanctions of the Commission for the Regulation of Energy in respect of the extension of the time limit for the inquiry of the dispute brought by the Sam Lock company;
Due to decisions No. 344972 and other of November 16, 2011, Conseil d' Etat, société Ciel et Terres et autres.
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Parties that have been regularly convened at the public meeting, held on 14 January 2013, of the Dispute Resolution and Sanctions Committee, Composed of Pierre-François RACINE, Chairman, Mrs Sylvie MANDEL, Mr Roland PEYLET and Mr Christian PERS, members, in the presence of:
Mr Olivier BEATRIX, Legal Director and representing the Director General prevented;
Mr Didier LAFFAILLE, Rapporteur and Mr Thibaut DELAROCQUE, Deputy Rapporteur;
Representatives of the company Sam Lock, assisted by Master Frédéric BOUHABEN;
Representatives of EDF, assisted by Me Emmanuel GUILLAUME and Me Simon DABOUSSY.
After hearing:
The report by Mr Didier LAFFAILLE, presenting the pleas and conclusions of the parties;
The observations of Frédéric BOUHABEN for the company Sam Lock; the company Sam Lock persists in its pleas and conclusions;
The observations of Emmanuel GUILLAUME and Simon DABOUSSY for the EDF company; EDF Company persists in its means and conclusions;
No postponement of meetings has been requested;
The Dispute Settlement and Sanctions Committee deliberated on 14 January 2013, after the parties, the rapporteur, the deputy rapporteur, the public And service agents have retired.
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On additional comments submitted by Sam Lock:
These observations in reply to a registered defence registered on 12 October 2012 were not registered until 27 December 2012, or after receipt of the invitation to the public sitting, the EDF company is entitled to request that they be Dismissed from the debates by application of Article 8 of the aforementioned Rules of Procedure of the Dispute Settlement and Sanctions Committee.
On the application of the Decree of 9 December 2010:
Sam Lock requests the Dispute Resolution and Sanctions Committee to direct EDF to forward without delay a technical and financial proposal for a connection, to the tariff in effect prior to the moratorium. Decree of 9 December 2010, by excluding the application of the Decree, suspending the obligation to purchase electricity produced by certain installations using the radiative energy of the sun
Jurisdiction to assess the legality of the decree of 9 December 2010, which was done by the The Council of State rejects, by its decision of 16 November 2011, all of the means of annulment raised against it, including those derived from European Union law.
In the present case, no clear illegality can be Since the suspension of the connections imposed by the Decree of 9 December 2010 is the consequence of the suspension of the obligation to purchase, which finds its legal basis in Article L. 314-6 of the Energy Code, under which: ' Subject to the maintenance of the contracts in progress, the obligation to conclude a contract of purchase provided for in Article L. 314-1 may be partially or totally suspended by the administrative authority, for a period not exceeding ten years, if No longer meets the objectives of the multiannual programming of investments. "
The Decree of 9 December 2010 mentioned above requires the producer who has not been able to submit a technical proposal to the network manager before December 2, 2010. Signed, to renew its connection request after the expiration of the three-month period during which all requests for an obligation to purchase contract are suspended.
In this case, Sam Lock has not been able to return A technical and financial proposal signed before 2 December 2010.
It follows from the foregoing that the dispute settlement and sanctions committee is not entitled to order EDF to issue, to date, a technical and financial proposal to the company Sam Lock to the prevailing conditions Prior to the coming into force of the December 9, 2010, Order in Council.
As a result, the application by Sam Lock can only be rejected.
On the request for compensation for the financial loss suffered by Sam Lock:
Sam Lock asks the Dispute Resolution Committee and the sanctions committee to provide the applicants with a provision of EUR 50 000 for damages arising out of the damage suffered as a result of the failure by the EDF company To its obligations, pending the precise and definitive encryption of the latter.
However, it does not belong to the Dispute and Sanctions Committee, in the context of its jurisdiction under Articles L. 134-19 et seq. The Energy Code for the settlement of disputes, to condemn 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:
Additional comments by Sam Lock of December 27, 2012, are out of the discussion.
Sam Lock requests are rejected.
This decision shall be notified to Mr. Jean-Claude GIRAUD, Mrs Arielle IMBERT, Mr Jean-Claude KUO, Mrs Allain Isabelle GAUDINAUD, Mr Xavier DURA, Mr Alain LAUFFENBURGER, GIDINAUD SURDITÉ and Electricité de France. It will be published in the Official Journal of the French Republic.
Done at Paris, January 14, 2013.
For the
Dispute and Sanctions Committee :
The President,
P.-F.
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