Key Benefits:
The Dispute Resolution and Sanctions Committee,
Viewed by the Dispute, recorded on August 24, 2011, under number 234-38-11, submitted by:
M. Jean-Luc CHAMPETIER, of French nationality, remaining 5, allée des Erables, 71240 Sennecey-le-Grand;
M. Christian ANDRE, de nationality française, residing 52, rue Monié, 31500 Toulouse;
M. Daniel BOURGUET and Mme Annick BOURGUET, French nationality, remaining 15, rue Muguet, 61000 Saint-Germain-du-Corbéis;
Mr Bruno DEMOL, of French nationality, remaining 24, rue du Stade, 87520 Oradour-sur-Glane;
Mr Sébastien BOUVIER, of French nationality, remaining 30, Avenue de Bourgogne, 93160 Noisy-le-Grand;
Miss Pascale PERES, de nationality française, staying 1, impasse de l' Etang, 22400 Morieux;
M. Christophe OESTERLE, de nationality française, staying 1, impasse de l' Etang, 22400 Morieux;
M. Jean-Charles COULEAU, de nationality française, staying 9, Rue du Soleilha, 31320 Vieille-Toulouse;
M. Grégory BRESSOLLES, de nationality française, staying 61, rue de Nérac, 33800 Bordeaux;
M. Jean GOUT, de nationality française, staying 31, chemin de Gertis, 31320 Vieille-Toulouse;
M. Alain ANDRIEU, of French nationality, remaining 28, boulevard de Belgium, 78110 Le Vésinet,
having constituted a partnership between them " Chevalier 1 ", having for lawyer Frédéric BOUHABEN, firm ASA, 2, rue Odette-Jasse, Les Portes d' Euromed, 13015 Marseille.
Company Chevalier 1 has referred the dispute settlement committee and the sanctions of the Commission for the regulation of The energy of the dispute opposing Electricité de France (hereinafter referred to as ' EDF "), on the conditions of connection to the public electricity grid of a project of photovoltaic power station.
It is apparent from the documents in the file that the company Chevalier 1 develops a project of photovoltaic power station, of a power of Maximum production of 27 kVA, on the territory of the commune of Saint-André (Réunion). The EDF company is the manager of the public electricity distribution network on the territory of this municipality.
On 27 August 2010, the company COREX, acting on behalf of the company Chevalier 1, sent a request for connection to Of the company EDF for the project of photovoltaic power station. This application was received by the EDF company on 2 September 2010.
Considering that the conditions for connecting to the public distribution system of the production facility were not satisfactory, the company Chevalier 1 referred the matter to the Committee of Dispute resolution and the sanctions of an application to settle the dispute with the company EDF.
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In its observations, the company Chevalier 1 supports Since no 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 fall outside the scope of the moratorium Suspending the purchase of electricity generated by photovoltaic installations.
It states that the procedure for processing applications for connection of electricity production facilities provides for the EDF company to have a time limit Three months to complete the complete connection study and forward it to the Applicant in the form of a technical and financial proposal.
Company Chevalier 1 considers that EDF, by not respecting this deadline, deprived it of the benefit of the rates in effect before the moratorium.
Company Chevalier 1 Requests, therefore, the Dispute Settlement 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 Is requested by 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 Pass on to the company Chevalier 1 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 company Chevalier 1 has made a new application for connection for its project on 11 March 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 company indicates that the connection request of the company Chevalier 1 has been dealt with diligently, knowing that it had to cope with an exponential increase in connection requests, which is a foreign matter for the company EDF within the meaning of section 1147 of the Civil Code.
It concludes that the alleged delay in the company connection request statement Chevalier 1 cannot allow it to exempt its project from the application of the regulation resulting from the decree of 9 December 2010.
The EDF company accordingly requests the Dispute Settlement Committee and the sanctions to reject the Request from Chevalier 1.
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In view of the fax, recorded on January 10, 2013, submitted by the company EDF.
The EDF company requests the Dispute Settlement Committee and the sanctions committee to avoid further discussion of the Company Chevalier 1 on December 27, 2012.
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Seen the other parts of the file;
Given the energy code, including its articles L. 134-19 et seq. And its article L. 314-6;
Seen Order No. 2000-894 of 11 September 2000 amended relating to procedures applicable to the Energy Regulatory Commission;
Seen Decree n ° 2010-1510 of 9 December 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 Energy Regulatory Commission;
In light of the August 24 decision 2011 of the Chairman of the Dispute Settlement and Sanctions Committee of the Energy Regulatory Commission, on the appointment of a rapporteur and an assistant rapporteur for the investigation of the dispute settlement request Recorded under number 234-38-11;
In view of the October 20, 2011 decision of the Committee for the Settlement of Disputes and Sanctions of the Energy Regulatory Commission, relating to the extension of the time limit for the investigation of the dispute Introduced by the company Chevalier 1;
Given Decision No. 344972 and others of 16 November 2011 of the Conseil d' Etat, société Ciel et Terres et autres.
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The parties that were regularly convened at the public meeting, held on January 14, 2013, of the Dispute Resolution Committee and the Sanctions, composed of Mr Pierre-François RACINE, President, Mrs Sylvie MANDEL, Mr Roland PEYLET and Mr Christian PERS, members, in the presence of:
Mr Olivier BEATRIX, Director General and Representative of the Director General prevented;
Mr Didier LAFFAILLE, Rapporteur, and Mr Thibaut DELAROCQUE, Deputy Rapporteur;
Representatives of Chevalier 1, assisted by Mr 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 Mr Frédéric BOUHABEN for the company Chevalier 1; the company Chevalier 1 persists in its pleas and conclusions;
les Observations by Me Emmanuel GUILLAUME and Mr Simon DABOUSSY 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 14 January 2013, after the parties, the rapporteur, the Deputy Rapporteur, the Public and service agents withdrew.
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On Additional Comments by Company Chevalier 1:
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:
Company Chevalier 1 requests the Dispute Resolution Committee and the sanctions committee to direct EDF to forward without delay a technical and financial proposal for a connection, to the tariff in effect before 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, what has been done The Council of State rejecting, by its decision of 16 November 2011, the whole of the means of annulment raised against it, including those arising from European Union law.
In the present case, no manifest illegality can Be found therefore that 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 at the end of the three-month period during which all requests for an obligation to purchase contract are suspended.
In this case, the company Chevalier 1 has not been able to Return a technical and financial proposal signed before December 2, 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 Chevalier 1 to the prevailing conditions Before the entry into force of the decree of 9 December 2010.
As a result, the request by the company Chevalier 1 can only be rejected.
On the claim for compensation for the financial damage suffered by the company Chevalier 1:
Company Chevalier 1 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 breach by the company EDF to its obligations, pending the precise and definitive encryption of it.
However, it does not belong to the Dispute and Sanctions Committee, within the scope of its jurisdiction under Articles L. 134-19 and Of the code of energy in dispute settlement, 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 Chevalier 1 Company dated December 27, 2012, are excluded from the discussion.
Requests from Chevalier 1 are rejected.
This decision will be notified to Mr. Jean-Luc CHAMPETIER, Mr Christian ANDRE, Mr Daniel BOURGUET, Mrs Annick BOURGUET, Mr Bruno DEMOL, Mr Sébastien BOUVIER, Ms Pascale PERES, Mr Christophe OESTERLE, Mr Jean-Charles COULEAU, Mr Grégory BRESSOLLES, Mr Jean GOUT, Mr Alain ANDRIEU and Electricité de France company. 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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