JORF n ° 0058 March 9, 2013 text no. 93 Decision of February 6, 2013, on the dispute between FOLELLI company owned by Electricité de France (EDF) concerning the conditions of connection of a photovoltaic plant to the public NOR electricity distribution network: CREE1305997S ELI: not available the settlement of disputes and the sanctions Committee, seen demand for settlement of dispute recorded August 24, 2012, under the number 25-38-12 presented by the company Folelli, Corporation simplified, registered at the registry of trade and companies of Bastia under the number 508 309 374, whose registered office is located residence Les Arcades, BP 36, 20217 Saint-Florent, represented by its Managing Director, Mr Martin KLAUS, with lawyer Me Pierre Paul MUSCATELLI, cabinet MUSCATELLI-VRETY-MERIDJEN, 13, avenue Marechal Sebastiani, 20200 Bastia.
Folelli society seized the Committee of regulation of disputes and sanctions of the Commission for energy regulation of the dispute between the company electricity of France (hereinafter 'EDF'), on the conditions for connection to the public network of distribution of electricity of a project of photovoltaic power plants.
It is clear from the record that the Folelli company develops a proposed construction and operation of two photovoltaic plants with a capacity of production installed 7,024 MW and 5.952 MW on the territory of the commune of Penta-di-casinca, locality Quercy (Haute-Corse). EDF is the Manager of the public distribution system of electricity on the territory of this municipality.
October 23, 2008, Folelli society filed a request for permission to build two electricity generation facilities.
October 28, 2008, the State services informed Mr KLAUS that the period of examining its application for building permits would be extended to six months therefore that the Corsican Assembly should be consulted on this request.
January 21, 2009, the company Folelli filed two requests for technical and financial proposals to the EDF company for its two projects of photovoltaic power plants.
January 28, 2009, the company EDF acknowledged receipt of these applications for connection.
April 23, 2009, no express decision not him having been notified at the end of the phase of examining its application for building permits, Folelli society was a tacit license refusal.
September 16, 2009, the company EDF sent to society Folelli both technical and financial proposals.
October 22, 2009, the company Folelli returned signed two copies of the technical and financial proposals to the EDF company said.
December 10, 2009, Folelli society sent a cheque for deposit of 92 411,35 euros owned by EDF.
January 26, 2010, the company EDF asked, mail, company Folelli to transmit a copy of the authorization of urbanism on projects of photovoltaic power plants before September 1, 2010.
July 16, 2010, the Administrative Court of Bastia canceled the aforementioned tacit refusal and directs the administration of the review of the application for building permit within a period of four months from the notification of its decision.
September 17, 2010, the company EDF informed society Folelli, by e-mail, that its projects were extended connection queue as the applications for connection lacked planning permission on its projects.
The same day, Mr KLAUS challenged from the EDF company decision of withdrawal from the queue of its projects.
November 26, 2010, the prefect of the Haute-Corse opposed a second refusal at the request of building permits on projects of facilities for the production of electricity of Folelli society.
February 16, 2011, the EDF company sent to society Folelli a cheque, in the amount of the financial contribution which was paid on December 10, 2009.
March 23, 2011, Folelli society told the EDF company, by mail, the restored sum would be collected "without this initiative can be regarded as an acceptance of its share of the output of queue".
January 26, 2012, the Administrative Court of Bastia cancelled the second refusal by the prefect of the Haute-Corse Folelli society.
March 27, 2012, the prefect of the Haute-Corse has, by order, authorized the construction of its power generation projects.
April 16, 2012, Folelli society requested by mail, the company EDF, reinstatement in the queue of connection and the issuance of convention connection on its projects. Folelli society joined to this mail a cheque for an amount of EUR 92 411,35 regulations.
April 25, 2012, the company EDF has refused to accede to the demands of society Folelli but told him that his projects with permission of urbanism, it could file a new application for connection that would nevertheless fall under the provisions of article 5 of the Decree of December 9, 2010.
Considering that the conditions for connection to the public network of distribution of its production facilities were not satisfactory, Folelli society seized the Committee of regulation of disputes and the sanctions of a claim for settlement of the dispute between the company EDF.
* In its comments, the company Folelli believes that 'SEI REF 07' adjunct to the procedure of processing of the applications for connection of the company EDF, dated December 1, 2009, is manifestly unsuited to the constraints related to the obtaining of permission to planning in so far as it fixed at September 1, 2010 the date of delivery of such authorisation to enter or be maintained in connection queue.
She added that in doing so, the company EDF did not consider the case in which she found herself, namely the assumption of denial of building permits cancelled by final judicial decision in pursuance of which planning permission was finally issued.
The Corporation Folelli States that in the State of cancellations made against the refusal of the permit to build its application for building permit must be regarded as still being investigated at September 1, 2010.
The company Folelli argued that such date deadline of September 1, 2010, for the production of planning permissions, already was watched by the settlement of disputes and the sanctions Committee in its decision "Léonard Valentini" November 19, 2010, confirmed by a judgment of the Court of appeal of Paris of November 3, 2011, as in Corsica "a manifestly inadequate condition for obtaining of permissions constraints.
It concluded the company EDF could not oppose him, on April 25, 2012, such a requirement found the illegality was jurisdictional.
Folelli society argues that the exclusion of the queue of its projects infringes the principle of non-discrimination insofar as projects, like his own, regularly entered in queue are excluded only because of the fact that the administrative authority had not yet pronounced definitively on the building permit requests for such projects at September 1, 2010.
She added that the projects it develops were not subject to the date of filing of its building permits — October 23, 2008, to the provisions of the Decree of 19 November 2009 that photovoltaic production facilities must have a permit to build.
Precise Folelli society as if it has taken the initiative to file October 23, 2008 a request for building permits, it is only for the realization of small technical facilities essential to the operation of the facility for the production of electricity.
It states that, given the jurisdictional cancellations of the two orders of denial of building permits and the permit which was finally issued on March 27, 2012, it would normally be able to avail themselves of an authorization of urbanism at April 23, 2009.
It concludes that so it would have been outside the scope of the Decree of 19 November 2009 and the requirements of section 5.1 of the amending Protocol to the procedure of processing of the applications for connection.
Folelli society indicates that the Committee of regulation of disputes and sanctions, including in its decision "Soleol II" of October 24, 2011, and the Court of appeal of Paris, in a judgment "ERDF/SARL N3D» of December 15, 2011 have heard impose on society EDF to take into consideration all hazards to which producers were likely to encounter on the occasion of obtaining planning permissions imposed by the provisions of the Decree of 19 November 2009.
It consequently considers that the EDF company should have considering his situation, namely a statement of the planning permission application not completed on the date deadline of September 1, 2010, by the above-mentioned amending endorsement.
Folelli society contends that, insofar as the Court of appeal of Paris, in its judgment of 3 November 2011 «Leonard Valentini", recalled that company EDF should treat in the same way applications for connection in"similar situations", the latter was not entitled to apply the same rule to requests for connection in different situations.
She concluded that it was therefore for the EDF company to consider in its procedure for handling applications for connection the case of projects, similar to his own, already admitted queued waiting for which a building permit application was made within deadlines compatible with the constraints linked to the investigation of applications for planning permission procedures but to which were opposed any illegal refusal before the requested permit.
Folelli society finally submits that the principles reflected in article L. 331 - 6 of the rural code, according to which the lessee cannot be deprived of the lease which has been extended only by a refusal of permission to operate, as long as the latter has not acquired a finality, are quite likely to be incorporated into the procedure of processing of the applications for connection of the EDF company.
Folelli seeks, therefore, to the Committee of regulation of disputes and energy regulation Commission sanctions of: ― see the illegal nature of the amending Protocol to the procedure for processing applications for connection of facilities for the production of electricity to the public networks distribution in Corsica and in the French overseas territories and departments as of September 1, 2009 referenced SEI REF 07;
― Note that the EDF company could validly apply to the connection request submitted by Folelli, to decide on September 17, 2010 out its projects in queue on the grounds that the producer does not was able, at September 1, 2010, to produce planning permission required.
As a result: ― direct company EDF deal projects of photovoltaic society Folelli as production facilities being entered and remained in queue connection since 23 January 2009.
― outsourcing Folelli society time to proceed with the installation of its photovoltaic Park for a period corresponding to the period which elapsed will be between September 17, 2010, date of the improper exclusion of projects of the queue, and the notification of the decision of the Committee of regulation of disputes and of the sanctions to intervene, calculated from September 10, 2011;
— instruct the company EDF to communicate all the draft agreements needed for connecting to the mains of the projects of the company Folelli on the basis of the requirements contained in the technical and financial proposals referred to as «Quercy» and «Quercy 1"addressed to the petitioner on September 16, 2009, including their financial components, established in accordance with the provisions of the Decree of 10 July 2006.
This within a period of two months from the notification of the decision to intervene.
Having regard to the observations in defence, recorded on October 5, 2012, presented by the company Electricité de France (EDF), limited company, registered in the registry of commerce and corporations of Paris under the number B 552 081 317, whose headquarters is located 22-30, avenue Wagram, 75008 Paris, represented by its legal Director France, Mr. Oliviers SACHS, having to counsel Me Emmanuel GUILLAUME and Me Simon DABOUSSY , Law firm Baker & McKenzie, 1, rue Paul Baudry, 75008 Paris.
The company EDF argues that if resolution of disputes and the sanctions Committee is well qualified to deal with such a dispute as it is concerning the entry into two projects of electricity production queue, it could not be for hear the application of Folelli society to found the illegal nature of the amending Protocol to the procedure of processing of the applications for connection.
It considers that, in accordance with the administrative jurisprudence, this endorsement must be qualified regulatory administrative act whose legality cannot be challenged before the administrative judge.
The company EDF adds that in its decision «Valentini», confirmed by the Court of appeal of Paris, resolution of disputes and the sanctions Committee acknowledged that it belonged to the company EDF to adapt itself its procedure for handling applications for connection.
It argues that the Committee of regulation of disputes and sanctions, in a decision "JUWI" of June 4, 2010, decided that, for projects including the realization was subject to authorization planning even before the entry into force of Decree November 19, 2009, submitting photovoltaic installations on the ground in itself to have a permit to build, the entry queues should intervene only at the time of transmission by the producer of this permission.
The EDF company indicates that in this case society Folelli projects have never entered into queue whenever any planning permission on work, other than the photovoltaic installations in themselves, necessary for the creation of a surface out of 205 m² gross work has been attached to the applications for connection.
It concludes that the request of Folelli society to the reinstatement of its projects queued is moot.
EDF adds to assume that resolution of disputes and the sanctions Committee considers society Folelli projects as being entered in queue despite the absence of authorization, it will be seen that the EDF company was founded to make it out in accordance with the amendment to the procedure adopted on December 1, 2009.
She said that even if the dispute settlement Committee and sanctions and the Court of appeal of Paris considered that the nine-month deadline by the amendment to the procedure for the transmission of planning permission constituted a manifestly inadequate condition for obtaining of permissions constraints, the company EDF could foresee a case like the one encountered by the company Folelli i.e. a period of 27 months for obtaining planning permission.
The company EDF adds that, if it had taken into account the situation of the company Folelli, it would necessarily penalized in a discriminatory manner projects from other producers regularly entered in queue but having obtained, more quickly, allowed them to build.
It also shows that in any case the Folelli company's projects would be entered within the scope of the moratorium established by the Decree of December 9, 2010, since its projects lacked building permits prior to the entry into force of the Decree.
The company EDF reported finally that the timeout for the production of the building society Folelli permit is not calendar constraints linked to the review by the administration of his application for a permit to build but only two refusals that it were opposed by the prefecture of Haute-Corse.
It considers that the illegality of the refusal to permit opposed by the administration has no bearing on the fact that society Folelli did not fulfil the conditions to be included or maintained in queue. It adds that these illegalities cannot justify, retrospectively, the reintegration of Folelli society projects queued, but would likely be invoked by it, if she believes in is founded, in support of a claim for damages against the State.
The EDF company exposes that amending endorsement could distinguish objectively between two categories of producers: those with permission of planning within the time limit and those did not have within this period.
On this point, it recalls that the Decree of November 19, 2009 also retains only this difference of situation.
The company EDF considers finally 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, there is no queue device imposing to take into account the interests both of companies already in queue as those are aspiring.
EDF seeks therefore to the settlement of disputes and the sanctions Committee to reject the request of Folelli society.
Having regard to the reply comments, recorded October 30, 2012, presented by Folelli society.
Folelli society argues that the Committee of regulation of disputes and sanctions, in its "Valentini" decision, admitted its competence to assess the validity of the requirements laid down by the company EDF of its processing of the applications for connection.
Folelli adds that in any event its conclusions are not only on the legality of the amending Protocol but also on the fact that the company EDF could validly object to its applications for connection the reform endorsement to decide out queue projects September 17, 2010.
She exposes that the EDF company pleads today decision "JUWI» of the settlement of disputes and the sanctions Committee, in an attempt to demonstrate that his projects would never be entered into queue, then is even that company EDF still considered as being entered in the queue said.
Society Folelli adds that the EDF in decision «JUWI» company also argued for projects, such as his own, for which a building permit was not required prior to the entry into force of the Decree of November 19, 2009, authority to operate production allowed to enter in line waiting.
Folelli society argues that the dispute before the settlement of disputes and the sanctions Committee is relative to the output of its projects of electricity production in the connection queue.
In addition, it exposes section 4.9 of the procedure for processing applications for connection as drafted prior to the entry into force of the Decree of November 19, 2009 provided for the production of a copy of the building permit for installations which, unlike hers, exceeded a height of 12 meters.
Folelli society considers that argument supported by the EDF company that his projects would be never entered in queue totally fi the general principle of legal certainty which it is perfectly entitled to avail themselves.
She argues that "jurisprudence JUWI" cannot defeat the application of the principle of legal certainty therefore that its projects have already entered into queue.
The company accurate Folelli not to grieve the company EDF's do not have foreseen twenty-seven months to obtain and the production of a building permit and recalls that it confines itself to contesting the fact that the amendment to the procedure for processing applications for connection does not take into account the legal consequences of the jurisdictional decisions of annulment of illegal refusal of planning permission even though the producer would have accomplished all Stagecoach for get it in a timely manner.
It also exposes the problem comes not simply down to a distinction between farmers who were able to provide within the time required planning permission and those who are not held in the same period.
Folelli society argues in the sense that the producer who, like her, had taken all the provisions before even that the EDF company imposes such an obligation of production of building permits for benefit but who has suffered one or more illegal refusal cannot be equated: ― bearer of project licence validly refused;
― to the producer including the permit application was submitted at an incompatible date with the period of common law of planning permissions.
― or one that is would have abstained from soliciting any building permits.
It adds that jurisdictional decisions in his favour are watch its application for a permit to build as still in the phase of instruction at September 1, 2010.
Folelli society indicates that until the intervention of the amending Protocol to the procedure of processing of the applications for connection, and as claimed by the company EDF in the dispute «JUWI», entry and retention in connection queue were exclusively subordinated to obtaining authority to operate.
It concludes that the reintegration of its projects is thus without impact on the producers subsequently entered into queue where it should legitimately have been granted permission for planning at April 23, 2009.
Folelli society exposes that, contrary to the EDF company, to provide for the maintenance of projects queued for which the denial of building permits is contested litigation does mean not that is required at the same time of the producer with a building permit to justify its finality.
It considers that follow the reasoning of the EDF company would consider to remove from the queue all project planning authorization would be challenged and that it would result in a double misunderstanding of the rule of law in that: ― the recourse for excess of power has no suspensive effect;
― and vice versa, the refusal to integrate into the queue projects that is would be denied illegal until the permit is issued disregards the effects of judicial decisions of annulment that make watching said refusal as being never reached.
The Folelli company argues that its situation is hazards of its planning application, that both hazards resolution of disputes and the sanctions Committee that the Court of appeal of Paris required the company EDF to take into account.
It indicates that company EDF cannot usefully rely on the way of appeal available society Folelli against the State to evade its obligations and that a way of remedies against the State is not such as would deprive the Act before the settlement of disputes and the sanctions Committee.
The company Folelli argues that one should substitute for the denial of licences to build the order of building permit obtained on March 27, 2012, without concealing the fact that the latter should be issued no later than 23 April 2009.
It states that in the presence of an authorization of planning issued April 23, 2009 the issue of maintaining queued not is would never have arisen.
The company Folelli persists in its previous conclusions.
Having regard to the observations in rejoinder, recorded January 17, 2013, presented by the company EDF.
The company EDF supports that resolution of disputes and the sanctions Committee rejected the application of the amending Protocol in case "Valentini", if only because of its inadequacy to the constraints of the case and not by deduction of its illegality.
It considers therefore that the conclusions of Folelli society to what is found the illegality of the amending Protocol are inadmissible.
The company EDF argued that clause 4.9 of the procedure of processing of the applications for connection, in the version in force at the time of the filing of the application for connection of Folelli society, conditioned the entry queue to the production of a copy of building permit when it was necessary for the implementation of its projects.
She said that the case of wind projects of more than 12 metres referred to in section 4.9 above is an illustration of this principle.
The EDF company does not deny having integrated Folelli society projects in the queue but recalls that the doctrine of the settlement of disputes and the sanctions Committee should lead it to consider that the projects cannot be reinstated in queue as they did there not come regularly.
She added that the principle of legal certainty cannot validly be relied on in this case since it imposes only to the appointing authority of the regulatory power to enact transitional measures that could involve new legislation and that in this case the company EDF supports that society Folelli projects should never have come in line waiting.
The company EDF estimates that Folelli society dispute the regularity of the output of its projects of queue developing several arguments based all on the same erroneous assumption that the EDF company should assume the illegalities committed by the authority responsible for its application for planning authorization.
She added concerning the means which it had submitted during the dispute "JUWI" that they were rejected by the Committee of regulation of disputes and to consider sanctions as the entry queue queue of projects which required planning permission, before even the amendment Amendment to the procedure for processing applications for connection, should intervene only at the time of transmission by the producer of the copy of its planning permission.
The company EDF argued society Folelli him attributed responsibility for the instruction of applications for planning permission-related hazards that are foreign to him.
She added that society Folelli does not demonstrate why it disregarded its obligations concerning the treatment of applications for connection.
The company EDF argues finally that it him not responsibility to bear the financial consequences of two denials, illegally by the prefect.
Thus, the company EDF maintains its previous conclusions.
Having regard to the other documents in the file;
Having regard to the code of energy, particular articles L. 134 - 19 et seq.;
Having regard to the code of urbanism, particular articles R. 421 - 1 et seq.;
Considering Decree No. 2000-894 11 September 2000 amended relating to procedures before the Energy Regulatory Commission.
Mindful of Decree No. 2010-1510 9 December 2010 suspending the obligation to purchase electricity produced by certain installations using radiative energy from the Sun;
Having regard to decision of February 20, 2009 relating to the rules of procedure of the Committee for settlement of disputes and the sanctions of the Energy Regulatory Commission.
Having regard to the decision of 24 August 2012 of the Chairman of the Committee for settlement of disputes and the sanctions of the Commission for energy regulation on the designation of a rapporteur and rapporteur Deputy for the statement of the dispute claim registered under number 25-38-12.
* The parties who regularly convened at the public meeting, which was held February 20, 2013, of the Committee of regulation of disputes and sanctions, consisting of Mr. Pierre-François RACINE, president, Mrs Sylvie MANDEL, Mr. Roland PEYLET and Mr. Christian PERS, members, in the presence of: Mr Olivier BEATRIX, chief legal officer representing the Director general, prevented;
Mr. Jérémie ASTIER, rapporteur, and Mr Thibaut DELAROCQUE, co-rapporteur;
Representatives of the company Folelli, assisted by Mr. Pierre Paul MUSCATELLI;
The representatives of the company EDF, assisted by Mr. Simon DABOUSSY.
― the report of Mr. Jérémie ASTIER, the means and the submissions of the parties;
― the observations of Mr. Pierre Paul MUSCATELLI and Mr Martin KLAUS Folelli society; the company Folelli persists in its grounds and conclusions;
― the observations of Mr. Simon DABOUSSY; the EDF company persists in its grounds and conclusions;
No postponement of meeting having been sought;
The dispute resolution Committee and sanctions in February 6, 2013, after that the parties, the rapporteur, the co-rapporteur, having deliberated the public and the officers withdrew.
On the placement and retention in the connection request queue: Folelli society considers that endorsement 'SEI REF 07' to the procedure of processing of the applications for connection of the company EDF, dated December 1, 2009, is manifestly unsuited to the constraints related to the obtaining of permission to planning in so far as it fixed at September 1, 2010 the date of delivery of such authorisation to enter or be maintained in connection queue.
It adds that, in doing so, company EDF did not consider the case in which she found herself, namely the assumption of two successive refusals of planning permission cancelled by decisions of final justice in pursuance of which planning permission was finally issued.
The company Folelli, argued that such date deadline of September 1, 2010, for the production of planning permissions already was watched by the settlement of disputes and the sanctions Committee in its decision "Léonard Valentini" November 19, 2010, confirmed by a judgment of the Court of appeal of Paris of November 3, 2011 as in Corsica "a manifestly inadequate condition for obtaining of permissions constraints.
The company EDF argues that, as stated by the Committee of regulation of disputes and of sanctions in its decision "JUWI" of June 4, 2010, Folelli society should not enter queue as it had not filed with its application for connection as of January 21, 2009, by copy of the permit to build on the realization of technical facilities essential to the operation of its electricity generation facility.
* Under the terms of section 4.9 of the process (then in force) of the applications for connection of the production facilities of electricity to the public distribution system of the company ERDF, implemented by the direction of the island energy systems of the EDF company for production facilities, the date of entry into queue is set to the date of receipt by EDF of "supply by the producer of one of the following documents [...] : ― for installations subject to building permits, a copy of the decision granting the building permit (including the case of wind energy projects in 12 metres height) specified in article R. 421 - 29 of the code of urbanism, or of the certificate provided for in article R. 421 - 31 of the code;
― for installations subject to the statement of work, a copy of the work or the mention of notification of requirements as stated in article R. 422 - 10 of the code of urbanism [...];
― for facilities not covered by any of the above cases, a copy of the receipt of statement of operations or a copy of the authorisation of exploitation, documents issued in the conditions laid down by Decree No. 2000-877 September 7, 2000, [...] ».
In this case, the date at which society Folelli asked the company EDF to transmit technical and financial proposal either January 21, 2009, the installation of photovoltaic panels itself was subject to any formality to the title of the code of urbanism.
However, an installation for the production of electricity from solar energy, which aims to inject electricity on a public distribution network, is technically constituted not only solar panels but also other buildings or electrical installations that, for some, as delivery positions, require authorization for planning in accordance with the provisions of article R. 421 - 1 of the code of urbanism.
It is clear from the documents in the file that, for the realization of electricity generation facilities essential to the same constructs, it was necessary to obtain a permit to construct, has asked the company Folelli.
Thus, pursuant to article 4.9 of the above procedure, the projects of photovoltaic production company Folelli could not, at the date of January 28, 2009, qualify, as they have been, queued whenever any building permits was produced on the implementation of technical facilities indispensable to the operation of the installation of electricity.
Under these conditions, the company Folelli photovoltaic production facilities projects must be regarded as never entered in queue, contrary to what the company EDF has suggested.
The fact that by the effect of cancellations, successively handed down by the tribunal administrative of Bastia, refusals to permit to build the administrative authority found itself again before the initial application for building permit is not likely to look like regular an inscription in queue before March 27, 2012, date on which the prefect of Corsica issued a permit to build.
It cannot be criticised the EDF company do not have foreseen such assumptions in its procedure for handling applications for connection.
As a result, society Folelli requests must be rejected.
* Decided as follows: Article 1 the company Folelli claims are rejected.
Article 2 this decision shall be notified to Folelli society and the company electricity of France. It will be published in the Official Journal of the French Republic.
Done at Paris, on February 6, 2013.
For the settlement of disputes and the sanctions Committee: president, P.-F. Root