Key Benefits:
On Dispute Resolution and Sanctions Committee,
Given the request for dispute resolution, Registered on 24 August 2012, under number 26-38-12, presented by Corsoleil, a one-person company with limited liability, registered in the register of commerce and companies of Bastia under number 493 197 909, including its head office Is located Residence Les Arcades, BP 36, 20217 Saint-Florent, represented by its manager, Mr. Martin KLAUS, having for counsel Pierre Paul MUSCATELLI, law firm MUSCATELLI-VRETY-MERIDJEN, 13, avenue du Maréchal-Sebastiani, 20200 Bastia.
La société Corsoleil has referred the dispute to the Dispute Resolution Committee and Commission for the regulation of energy of the dispute between Electricité de France and Electricité de France (hereinafter referred to as " EDF ") On the conditions for connection to the public electricity distribution network of a photovoltaic project.
It is apparent from the documents in the file that Corsoleil is developing a project for the construction and operation of a plant Photovoltaic of an installed production power of 11.64 MW in the territory of the commune of Aghione, Lisay Tozze (Haute-Corse). EDF is the manager of the public electricity distribution network on the territory of this municipality.
On 24 July 2008, Corsoleil filed an application for a building permit for its production facility.
11 August 2008, the State services informed Mr KLAUS that the period for the processing of his application for a building permit would be extended to six months as soon as the Assembly of Corsica was to be consulted on this application
September 2008, Corsoleil filed a request for a technical proposal and EDF for its project of photovoltaic power station.
On 5 September 2008, the EDF company acknowledged receipt of this connection request.
On 24 January 2009, no express decision was notified to EDF. Following the completion of the training phase of its application for a building permit, Corsoleil was opposed to a tacit licence.
On 8 April 2009, EDF sent a technical and financial
to Corsoleil. On July 13, 2009, Corsoleil returned two copies of the Technical and financial proposal to the company EDF.
On 17 July 2009, the company Corsoleil sent a cheque for EUR 122 561.05 to EDF.
On 26 January 2010, the company EDF requested, by mail, the company Corsoleil de lui Transmit a copy of the town planning permission for its project of photovoltaic power station before 1 September 2010.
On 16 July 2010, the administrative court in Bastia cancelled the aforementioned tacit refusal and ordered the The administration to review the application for a permit to build within a period of Four months from the date of notification of its decision.
On 17 September 2010, EDF informed Corsoleil company by e-mail that its project had come out of connection queue when its file did not include The town planning permission for his project.
On the same day, Mr KLAUS contested the decision to withdraw the project from EDF.
On 19 November 2010, the Prefect of the Upper Corse opposed a second refusal on the request of Building permit for the proposed electricity generation facility Corsoleil.
On 16 February 2011, EDF sent Corsoleil a cheque for the financial contribution which had been paid on 10 December 2009.
On 23 March 2011, the company Corsoleil indicated to the EDF company by mail that the amount returned would be cashed " Without this initiative being regarded as an acceptance of its share of the queue exit ".
On 26 January 2012, the administrative court in Bastia annulled the second refusal by the prefect of the Upper Corsica to the company Corsoleil.
On 27 March 2012, the prefect of the Haute-Corse, by order, authorised the construction of his project for the installation of electricity production.
On 17 April 2012, the company Corsoleil requested, by mail to the company EDF, Reintegration into the connection queue and the issuance of the Connection convention for the project. Corsoleil joined the mail with a settlement cheque of € 122,561.05.
On April 25, 2012, EDF refused to grant Corsoleil's claims, but indicated that it had a project with a Authority for town planning, it could file a new application for connection which would nevertheless fall under the provisions of Article 5 of the Decree of 9 December 2010.
Its production facility was unsatisfactory, the company Corsoleil a Seized the dispute resolution committee and the sanctions of an application to settle the dispute with the company EDF.
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In its observations, Corsoleil considers that The rider " SEI REF 07 " To the procedure for the processing of applications for connection of the EDF company, as of 1 December 2009, is manifestly inadequate to the constraints linked to the obtaining of the planning authorisations as it fixes September 1, 2010, the date of Issuing such authorizations to enter or be held in queue for connection.
It adds that it did not take into account the case of the figure in which it was found, namely the assumption of a refusal to allow the Construction cancelled by final court decision under which The town planning authority was finally issued.
The Corsoleil company states that in the event of the cancellation made against the refusal to build its building permit application file, it must be considered as always Training courses as of 1 September 2010.
The Corsoleil company claims that the deadline of 1 September 2010 for the production of town planning authorisations has already been reviewed by the Dispute Resolution and Sanctions Committee In its decision " Léonard Valentini " November 19, 2010, confirmed by a judgment of the Court of Appeal of Paris of 3 November 2011, as constituting in Corsica " A condition which is manifestly inadequate to the constraints of obtaining the requisite authorisations'.
It concludes that the EDF company could therefore not oppose such a requirement on 25 April 2012, the illegality of which was
La société Corsoleil argues that the exclusion of the queue from its project undermines the principle of non-discrimination in so far as projects, like its own, regularly queued up Excluded from the mere fact that the administrative authority had not yet pronounced itself Permanently on the applications for building permits relating to such projects on 1 September 2010.
It adds that the project it is developing was not submitted, on the date of the filing of its building permit, on 24 July 2008, to the Provisions of the Decree of 19 November 2009 according to which photovoltaic production facilities must have a building permit.
The Corsoleil company states that if it took the initiative to file on 24 July 2008, a Application for building permits, it is only for the realization of small premises Techniques essential to the operation of the electricity generation facility.
It states that, in the light of the judicial cancellations of the two orders for refusal of construction permits and of the permit which was finally granted to it On 27 March 2012, she would normally have been able to take advantage of an urban planning authorisation as of 23 April 2009.
She concludes that this would have been outside the scope of the decree of 19 November 2009 and the Requirements of Article 5.1 of the amending amendment to the procedure Processing of connection requests
Corsoleil indicates that the Dispute Resolution and Sanctions Committee, in particular its decision " Soleol II " On 24 October 2011, and the Paris Court of Appeal, in a judgment " ERDF/SARL N3D " Of 15 December 2011, have heard the EDF company take into account all the risks to which the producers were likely to be confronted in obtaining the planning authorisations imposed by the provisions The decree of 19 November 2009.
It therefore considers that EDF should have taken account of its situation, namely an appraisal of the application for an urban planning authorisation not completed by the deadline of 1 September 2010 laid down by The amending amendment referred to above.
Corsoleil maintains that, in The extent to which the Paris Court of Appeal, in its judgment of 3 November 2011 " Leonardo Valentini ", recalled that the EDF company had to treat in the same way the connection requests appearing in" Similar situations ", the latter was not justified in applying the same rules to connection requests in different situations.
It concluded that it was therefore for the EDF company to consider in its proceedings Processing of connection requests, the case of projects, similar to its own, already queued for which a request for a building permit has been made in time compatible with the procedural constraints Of requests for town planning authorisations but which have been opposed by one or Unlawful refusal prior to the intervention of the requested licence.
The Corsoleil company finally submits that the principles laid down in Article L. 331-6 of the Rural Code, according to which the lessee cannot be deprived of the lease which has been granted to him only Refusal of authorisation to exploit, as long as the latter has not acquired a definitive character, are perfectly capable of being integrated into the procedure for processing applications for the connection of EDF.
Corsoleil Requests, therefore, the Dispute Resolution and Sanctions Committee Energy Regulatory Commission of:
-see the illegal nature of the amending amendment to the procedure for processing applications for connection of electricity production facilities to public distribution networks in Corsica and in departments and communities From overseas as of 1 September 2009, referenced SEI REF 07;
-note that EDF could not validly apply it to the request for connection presented by Corsoleil, to decide on 17 September 2010 to release its Queue project on the basis that the producer was unable to September 1, 2010, to produce the required planning permission;
As a result:
-order the company EDF to process Corsoleil's photovoltaic production installation project as having entered and remained in a connection queue since 5 September 2008;
-impart to the company Corsoleil un Delay in proceeding with the installation of its photovoltaic fleet for a period corresponding to the period between 1 September 2010, the date of the irregular exclusion of the project from the queue, and the notification of the decision of the Dispute resolution committee and sanctions to be involved, calculated as of On September 10, 2011;
-order EDF to communicate all the projects necessary for connection to the electrical grid of the project of Corsoleil company on the basis of the requirements contained in the technical proposal 257-08-122 addressed to the petitioner on 8 April 2009, including in their financial components, established in accordance with the provisions of the Decree of 10 July 2006.
This within two months of notification of the Decision to take action.
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Seen the defense observations, recorded on October 5, 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, of which The head office is located at 22-30, avenue de Wagram, 75008 Paris, represented by its legal director France, M. Oliviers SACHS, having as counsel Mr. Emmanuel GUILLAUME and Mr. Simon DABOUSSY, firm Baker & McKenzie, 1, rue Paul-Baudry, 75008 Paris.
EDF argues that if the dispute resolution committee and the Sanctions is competent to hear such a dispute in so far as it relates to the entry into the queue of a project for the installation of electricity production, it cannot be so in order to know the demand of the company Corsoleil tending Recognition of the unlawful nature of the amending amendment to the processing of connection requests.
It considers that, in accordance with the administrative case-law, this amendment must be qualified as an administrative act at Regulation, the legality of which can only be challenged before the judge Administrative.
EDF adds that in its decision " Valentini ", confirmed by the Paris Court of Appeal, the Dispute Resolution Committee and the Sanctions Committee agreed that it was up to EDF to adapt its processing of connection requests.
It submits that the Dispute resolution and sanctions committee in a decision " JUWI " On 4 June 2010 decided that for projects whose implementation was subject to the authorization of town planning before the entry into force of the decree 19 November 2009, subjecting photovoltaic installations to the ground in themselves to dispose of a permit To build, the queuing entry had to take place only on the date of transmission by the producer of this authorization.
The company EDF indicates that in this case the project of the company Corsoleil has never entered the queue as soon as When there is no planning permission for work, other than The photovoltaic installation itself, necessary for the creation of a gross non-working surface of 151.5 m² has not been attached to the applications for connection.
It concludes that the request by Corsoleil for the reinstatement in file Waiting for his project is moot.
EDF adds that assuming that the dispute resolution and sanctions committee considers Corsoleil's project to be queued despite the absence of authorisation, it Will find that EDF was well founded to bring it out of the The amendment to the procedure adopted on 1 December 2009.
It states that even if the Dispute and Sanctions Committee and the Paris Court of Appeal considered that the nine-month period provided for by the amendment to the procedure for the Transmission of the town planning authorisation was a condition which was manifestly inadequate to the constraints of obtaining the necessary authorisations, the EDF company could not foresee a case such as the one met by Corsoleil, at Know a delay of twenty-seven months to get town planning permission.
EDF adds that if it had taken into account the situation of Corsoleil, it would necessarily have criminalised the projects of other producers who had regularly entered the queue but obtained faster Their permit to build.
It also states that in any event the project of the Corsoleil company would have entered the scope of the moratorium put in place by the decree of 9 December 2010, since its project did not have Permit to build before the coming into force of the said Order.
EDF Corporation Finally points out that the exceeding of the time limit for the production of the building permit of the Corsoleil company does not come from the calendar constraints linked to the examination by the administration of its application for a building permit but only of the two Refusal which was opposed by the prefecture of Haute-Corse.
It considers that the illegality of the refusal of licences opposed by the administration does not affect the fact that the Corsoleil company did not fulfil the conditions to be registered Or held on the queue. It adds that those illegalities cannot justify, a posteriori, the reintegration into the queue of the Corsoleil project but would be of such a nature as to be relied on by it, if it believes that it is founded, in support of a claim for compensation Against the State.
EDF states that the amending amendment could only objectively distinguish between two categories of producers: Those who have town planning permission within the time limit and those who do not have it within this period.
It points out that the decree of 19 November 2009, moreover, only retains this difference in situation.
Society Lastly, EDF considers that the analogy with the mechanism put in place by the provisions of Article L. 331-3 of the Rural Code is inoperative to the extent that, in this mechanism, no queuing mechanisms exist involving the taking into account of the Interests of both queuing and aspiring companies.
As a result, EDF asks the Dispute Resolution and Sanctions Committee to reject Corsoleil's application.
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Viewed in response, recorded on October 30, 2012, presented by Corsoleil.
The Corsoleil company maintains that the dispute settlement and sanctions committee in its decision " Valentini ", admitted its competence to assess the validity of the requirements laid down by EDF as part of its procedure for processing applications for connection.
Corsoleil adds that in any case, its Conclusions do not relate solely to the legality of the amending amendment but also to the fact that the EDF company could not validly oppose its request to connect the amending amendment in order to decide to exit its project On September 17, 2010.
It states that if the EDF company now pleads with Decision " JUWI " The Dispute Resolution and Sanctions Committee is to try to demonstrate that its project would never have entered the queue, even though EDF has always considered it to have entered the queue
Corsoleil adds that EDF company in the decision " JUWI " Moreover, that for projects, such as his, for which a building permit was not required before the entry into force of the decree of 19 November 2009, the production of the authorisation to operate permitted entry into line
La société Corsoleil submits that so the dispute before the Dispute Resolution Committee and the sanctions committee is related to the exit of its electricity production facility from the Connection.
In addition, it states that Article 4.9 of the procedure for processing Applications for connection in its drafting prior to the entry into force of the decree of 19 November 2009 provided for the production of a copy of the building permit only for the installations, which, unlike his own, exceeded a height of 12 metres.
Corsoleil believes that the argument supported by the EDF company that its project would never have entered the queue completely ignores the general principle of legal certainty of which it is perfectly well founded.
It argues that the " JUWI jurisprudence " Cannot fail to apply the principle of legal certainty when its project is already in the queue.
The Corsoleil company states that it does not complain to EDF that it has not provided for a period of twenty-seven months For the obtaining and production of a building permit and recalls that it merely contesting the fact that the amendment to the processing procedure for connection requests does not take into account the legal consequences of decisions Court for annulment of an illegal refusal of a building permit even though the Producer would have done all due diligence in obtaining it within the required time frame.
It also states that the issue is not simply a distinction between producers who were able to dispose of the issue within the prescribed time limit.
The Corsoleil company argues in this sense that the producer who, like her, had taken all the provisions even before EDF imposed such an obligation on the Production of building permits to benefit but have been refused or refused Illegal, cannot be assimilated:
-to the project holder whose permit would have been validly denied;
-to the producer whose permit application would have been submitted on a date inconsistent with the common planning permission period; or
-to the one who Would be forborne from soliciting any permit to build.
It adds that the judicial decisions rendered in its favour make its application for a building permit to be regarded as still in the investigation phase on 1 September 2010.
The Corsoleil company reports that until the intervention of the rider Amendment to the processing of connection requests, and as claimed by EDF in the dispute " JUWI ", the entry and the holding of a connection queue were exclusively subordinate to the obtaining of the authorization to operate.
It concludes that the reinstatement of the project is thus irrelevant to the producers who entered Subsequently queued to the extent that it should have legitimately benefited from an urban planning authorisation as of April 23, 2009.
Corsoleil argues that, contrary to what the EDF company supports, the provision of the Queuing for projects for which the denial of a permit Construction is disputed, does not imply that at the same time the producer benefiting from a building permit is required to construct that it justifies its finality.
It considers that following the reasoning of EDF Would lead to the possibility of excluding from the queue any project for which the urban planning authorisation would be contested and would result in a double disregard of the rule of law in that:
-the use of excess power has no suspensive effect;
-and vice versa, the refusal to include in the queue projects that would have been refused illegal refusal before the permit was issued to them Would not be aware of the effects of the judicial decisions to annul that refusal as never before.
La société Corsoleil considers that its situation is a matter of the vagaries of the instruction of its application for town planning, vagaries Both the Dispute Settlement Committee and the Paris Court of Appeal Impose on EDF to take into account.
It states that EDF cannot usefully invoke the remedy available to the Corsoleil company against the State in order to avoid its obligations and that such a remedy Against the State is not such as to deprive it of its action before the Dispute Resolution and Sanctions Committee.
Corsoleil argues that the refusal to construct the building permit order should be substituted for Obtained on 27 March 2012, without obscuring the fact that the latter should have been issued to him at most Later on April 23, 2009.
It states that in the presence of an urban planning authorization issued on April 23, 2009, the issue of queuing would never have arisen.
Corsoleil continues in its previous conclusions.
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Due to the rejoinder, recorded on January 17, 2013, submitted by EDF.
EDF argues that if the Dispute Resolution and Sanctions Committee has Excluded the application of the amending amendment in the case " Valentini ", it is only because of its inadequacy to the constraints of the species and not by inference of its illegality.
It therefore considers that the findings of Corsoleil seeking to have the illegality of The amending amendment is inadmissible.
The EDF company claims that Article 4.9 of the procedure for processing applications for connection, in its version in force at the filing of the application for connection of Corsoleil, Condition the queued entry to produce a copy of a building permit Where it was necessary to carry out the project.
It states that the case of wind projects over 12 metres set out in section 4.9 is only an illustration of this principle.
EDF does not dispute Integrated the Corsoleil company's project into the queue, but points out that the doctrine of the Dispute Resolution Committee and the sanctions should lead the latter to consider that the project cannot be reintegrated into a queue Because it did not enter it regularly.
It adds that the Legal certainty cannot validly be relied on in the present case when the latter requires only the regulatory authority to enact the transitional measures that a new regulation might entail and that in the present case EDF argues that the Corsoleil company's project should never have entered the queue.
EDF considers that Corsoleil challenges the regularity of the exit of its queue project by developing several Arguments all based on the same erroneous assumption that the EDF company Had to assume the illegalities committed by the authority responsible for investigating applications for town planning authorisations.
It states as to the means which it presented during the dispute " JUWI, " that they were rejected by the Dispute Resolution Committee and the sanctions to consider that the entry into the queue of projects whose implementation required an urban planning authorization, even before the amending amendment to the Procedure for the processing of applications for connection, was to be carried out only on the date of transmission by the producer of the copy of its planning permission.
EDF submits that Corsoleil is responsible for the Responsibility for the hazards associated with the appraisal of town planning applications which
It adds that the Corsoleil company does not show how the EDF company ignored its obligations with respect to the processing of connection requests.
Finally, EDF submits that it is not responsible for To bear the financial consequences of the two refusals unlawfully opposed by the Prefet.
EDF therefore maintains its previous conclusions.
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Seen the other parts of the file ;
In view of the energy code, in particular Articles L. 134-19 and following;
Vu The code of town planning, in particular Articles R. 421-1 and following;
In the light of the amended Decree No. 2000-894 of 11 September 2000 concerning the 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 radiative energy from the sun;
Seen Decision of 20 February 2009 on the Rules of Procedure of the Dispute Settlement and Sanctions Committee of the Energy Regulatory Commission;
In view of the decision of 24 August 2012 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 under number 26-38-12.
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Parties have been regularly called At the public meeting, held on 20 February 2013, of the Dispute and Sanctions Committee, composed of Mr Pierre-François RACINE, Chairman, Mrs Sylvie MANDEL, Mr Roland PEYLET and Mr Christian PERS, members, in the presence of:
Mr Olivier Béatrix, Legal Director representing the Director General prevented;
Mr Jérémie Astier, Rapporteur, and Mr Thibaut DELAROCQUE, Deputy Rapporteur;
Representatives of Corsoleil, assisted by Me Pierre Paul MUSCATELLI;
Representatives of EDF, assisted by Simon DABOUSSY.
After hearing:
-the report by Mr Jérémie ASTIER, presenting the pleas and conclusions of the parties;
-the observations of Pierre Paul MUSCATELLI and Mr Martin KLAUS for the Corsoleil company; Corsoleil persists in its means and Conclusions;
-the observations of Me Simon DABOUSSY; the EDF company persists in its pleas and conclusions;
No postponement of meetings has been requested;
The Dispute Settlement and Sanctions Committee deliberated on 6 February 2013, after the parties, the rapporteur, the deputy rapporteur, the public and the agents Services have retired.
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On Investment and Retention of The connection request:
Corsoleil believes that the rider " SEI REF 07 " To the procedure for the processing of applications for connection of the EDF company, as of 1 December 2009, is manifestly inadequate to the constraints linked to the obtaining of the planning authorisations as it fixes September 1, 2010, the date of Issuing such authorizations to enter or be held in queue for connection.
It adds that, in doing so, EDF did not take into account the case of the figure in which it was found, namely the assumption of two refusals Successive building permits cancelled by final court decisions in execution That the town planning authority was finally issued.
Corsoleil argues that the deadline of 1 September 2010 for the production of town planning authorisations has already been reviewed by the Committee for the Settlement of Disputes and sanctions in its decision " Léonard Valentini " November 19, 2010, confirmed by a judgment of the Paris Court of Appeal of 3 November 2011, as constituting in Corsica " A condition which is manifestly inappropriate for the constraints of obtaining the required authorisations ".
EDF argues that, as specified by the Dispute Settlement and Sanctions Committee in its decision" Juwi " On 4 June 2010, the Corsoleil company should not have entered the queue when it had not produced with its application for a connection as of 21 January 2009 of a copy of the building permit relating to the construction of the technical premises Necessary for the operation of its electricity generation facility.
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Under Article 4.9 of the procedure for processing applications for the connection of electricity production facilities The public distribution networks of the company ERDF, applied by management Of the island energy systems of the company EDF for the production facilities, the date of entry into the queue is fixed at the date of reception by EDF of the " By the producer of one of the following documents [...]:
-for installations subject to construction permits, a copy of the decision granting the building permit (in particular the case of wind projects greater than 12 metres) specified in article R. 421-29 of the urban planning code, or Of the attestation provided for in Article R. 421-31 of the same code;
-for installations subject to the declaration of work, a copy of the statement of work or the statement of notification of prescriptions as indicated in Article R. 422-10 The urban planning code [...];
-for installations not covered by any of the Above, a copy of the receipt of the declaration of exploitation or a copy of the authorisation to operate, documents issued under the conditions laid down in the decree n ° 2000-877 of 7 September 2000, [...].
In this case, on the date on which the company Corsoleil requested the EDF company to submit a technical and financial proposal, that is, on 3 September 2008, the installation of panels Photovoltaic itself was not subject to any formality
However, an installation of electricity generation from solar energy, which is intended to inject electricity into a public distribution network, is technically constituted not Only photovoltaic panels but also other constructions or electrical installations which, for some, such as delivery stations, require an urban planning authorisation pursuant to Article R. 421-1 of the Urbanism code.
It follows from the documents in the file that, for the Construction essential to the operation of the electricity generation facility, it was necessary to obtain a building permit, which was requested by Corsoleil.
Thus, in application of the article 4.9 of the procedure referred to above, the Corsoleil company's project for the installation of photovoltaic production could not, as of 3 September 2008, be admitted, as it was, on the queue when no building permits were produced Concerning the implementation of the technical premises necessary for the Operation of the electricity generation facility.
Under these conditions, the Corsoleil company's photovoltaic production facility must be regarded as never in the queue, contrary to the EDF company indicated to him.
The fact that by the effect of the cancellations, successively handed down by the administrative court of Bastia, refusal of building permits, the administrative authority was again seized of the application Initial building permit, is not likely to have a look at As regular a registration on the queue before March 27, 2012, the date on which the prefect of Corsica issued the permit to build requested.
It cannot be criticised for the EDF company not to have made such assumptions in its Procedure for processing connection requests
As a result, the Corsoleil requests must be rejected.
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Decides:
Requests from Corsoleil are rejected.
This decision will be notified to Corsoleil and Electricité de France. It will be published in the Official Journal of the French Republic.
Done at Paris, February 6, 2013.
For the
Dispute and Sanctions Committee :
The President,
P.-F.
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