Key Benefits:
The Dispute Resolution and Sanctions Committee,
Given the dispute resolution request, Registered on 24 August 2011, under number 238-38-11, presented by:
M. Benoît GIRARD, de nationality française, staying 66, rue du Général-de-Gaulle, 49340 Trémentines;
Miss Laëtitia GABORIAU, de nationality française, staying 29, rue De La Liève, 63000 Clermont-Ferrand;
M. Pierre-Hugues LANCIAL, of French nationality, remaining 8, rue du Chat-Botté, 45000 Orléans;
M. André TOUZET, of French nationality, remaining 15, rue Charles-Pêtre, 57000 Metz,
having constituted Between them a participating company called " Cardivel 1 ", having for counsel Frédéric BOUHABEN, firm ASA, 2, rue Odette-Jasse, Les Portes d' Euromed, 13015 Marseille.
The company Cardivel 1 has before the Committee for the Settlement of Disputes and 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 distribution network of a project of photovoltaic power station.
It is apparent from the documents in the file that the company Cardivel 1 develops a project of photovoltaic power station, of a power of Maximum production of 29.82 kVA, on the territory of the commune 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, the company COREX, acting on behalf of the company Cardivel 1, sent a request for connection to Of the company EDF for the project of photovoltaic power station. This application was received by EDF on 2 September 2010.
Considering that the conditions for connecting to the public distribution system of the production facility were not satisfactory, the company Cardivel 1 referred the matter to the 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 Cardivel 1 submits that no further action Having been given by the EDF company at its request for connection, it could not notify Acceptance of the technical and financial proposal before 2 December 2010 and thus outside the scope of the moratorium suspending the takeover of electricity generated by photovoltaic installations.
It states that the Procedure for processing applications for the connection of electricity production installations requires that the EDF company has a period of three months to complete the complete connection study and forward it to the applicant in the form A technical and financial proposal.
Cardivel Company 1 Considers that EDF, by not respecting this time limit, has deprived it of the benefit of the rates in effect before the moratorium.
The Cardivel 1 Company accordingly requests the Dispute Settlement Committee and the Commission's sanctions Energy regulation of:
-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 and Sanctions Committee suspended The instruction of the application until the intervention of the decision of the Council of State on requests for annulment of Decree No. 2010-1510 of 9 December 2010.
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Vu Letter from the Director General of 4 September 2012 asking EDF 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 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, Mr Olivier SACHS, having as counsel Me Emmanuel GUILLAUME and Me Simon DABOUSSY, Baker & McKenzie firm, 1, rue Paul-Baudry, 75008 Paris.
EDF argues that, pursuant to Article L. 134-19 of the Energy Code, the Dispute Settlement and Sanctions Committee does not have jurisdiction to rule out The application of the decree of 9 December 2010 because of the alleged failure of the EDF company, neither to characterise the possible damage resulting from this breach nor to rule on the purchase price which the project could benefit from.
It Indicates that the Dispute Resolution and Sanctions Committee cannot Order to transmit to the company Cardivel 1 an offer of connection as a result of an alleged failure by the EDF company, since it is not competent to observe this breach.
The company EDF indicates, moreover, that the company Cardivel 1 made a new connection request for its project on 11 March 2011, as provided for in Article 5 of the Decree of 9 December 2010, which sets the benefit of the obligation to purchase to the achievement of such a formality for suspended projects Pursuant to Article 1.
It submits that Article L. 134-19 of the Code Energy does not give jurisdiction to the Dispute Resolution Committee and the sanctions committee to decide on the tariff that could benefit the project.
EDF considers that the Dispute Resolution and Sanctions Committee does not May not grant the request that it be ordered to pay a provision for compensation for the financial damage that the applicants claim to have suffered.
It submits that the three-month time limit for sending an agreement to Connection 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 states that the connection request of the company Cardivel 1 has been processed diligently, knowing that it had to deal with an exponential increase in connection requests, which is a foreign cause for EDF company As defined in section 1147 of the Civil Code.
It concludes that the alleged delay in the request to connect the Cardivel 1 cannot allow it to subtract 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 Cardivel Company 1.
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In view of the fax, recorded on January 10, 2013, submitted by the company EDF.
EDF asks the Dispute Resolution Committee and the sanctions committee to rule out debates on Additional observations produced by the company Cardivel 1 on December 27, 2012.
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Seen the other parts of the folder;
Given the energy code, including articles L. 134-19 and As well as section L. 314-6;
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 solar radiative energy;
Seen Decision of 20 February 2009 on the Rules of Procedure of the Settlement Committee Disputes and sanctions of the Energy Regulatory Commission;
In view of the decision of 24 August 2011 of the Chairman of the Dispute Settlement and Sanctions Committee of the Commission for the Regulation of Energy, relating to the designation A rapporteur and an assistant rapporteur for the investigation of the claim for dispute registered under number 238-38-11;
In view of the decision of 20 October 2011 of the Dispute Settlement Committee and the sanctions of the Commission Energy regulation, relating to the extension of the processing time of the application A dispute brought by Cardivel 1;
In view of Decision No. 344972 and others of November 16, 2011, of the Conseil d' Etat, société Ciel et Terres et autres.
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Parts having Was regularly convened at the public meeting, held on 14 January 2013, of the Dispute Settlement and Sanctions Committee, composed of Pierre-François RACINE, Chairman, Sylvie MANDEL, Roland PEYLET and 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 the company Cardivel 1, assisted by Me 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 Cardivel 1; the company Cardivel 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 Cases Complementary presented by Cardivel 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:
Cardivel 1 asks 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 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, 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 Obligation no longer meets the objectives of the multiannual programming of investments ".
The Decree of 9 December 2010 referred to above shall require the producer who has not Could return, before December 2, 2010, to the network manager A technical and financial proposal signed, to renew its request for connection after the expiration of the three-month period during which all requests for an obligation to purchase contract are suspended.
In this case, the company Cardivel 1 does not Being able to refer a technical and financial proposal signed before 2 December 2010.
It follows from the above that the dispute settlement and sanctions committee is not entitled to order EDF to issue, to This day, to the company Cardivel 1 a technical and financial proposal to the Prior to the coming into force of the Order-in-Council of December 9, 2010.
As a result, the application by Cardivel 1 can only be rejected.
On the claim for compensation for the financial loss suffered by the company Cardivel 1:
Cardivel 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 Cardivel 1 as of December 27, 2012, are excluded from the discussion.
Cardivel 1 requests are rejected.
This decision will be notified to Mr. Benoît GIRARD, Ms Laëtitia GABORIAU, Mr Pierre-Hugues LANCIAL, Mr André TOUZET 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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