Key Benefits:
On Dispute resolution and sanctions committee,
Given the request for a registered dispute resolution August 24, 2012 under number 25-38-12, presented by Folelli, a simplified stock company, registered in the register of commerce and companies of Bastia under number 508 309 374, whose head office is located Les Arcades, BP 36, 20217 Saint-Florent, represented by its manager, Mr. Martin KLAUS, having as counsel Mr. Pierre Paul MUSCATELLI, law firm MUSCATELLI-VRETY-MERIDJEN, 13, avenue du Maréchal-Sebastiani, 20200 Bastia.
Folelli filed a complaint with the settlement committee The disputes and sanctions of the Energy Regulatory Commission of the Dispute between France and Electricité de France (hereinafter referred to as ' EDF "), on the conditions for connection to the public electricity distribution network of a project for photovoltaic power plants.
It is apparent from the documents in the file that Folelli is developing a project to build and operate two Photovoltaic plants with an installed capacity of 7.024 MW and 5,952 MW in the territory of the commune of Penta-di-casinca, place-dit Quercy (Haute-Corse). EDF is the manager of the public electricity distribution network on the territory of this municipality.
On October 23, 2008, Folelli filed an application for a building permit for its two production facilities.
28 October 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
January 21, 2009, Folelli filed two requests for technical proposals and EDF for its two photovoltaic power plant projects.
On 28 January 2009, the EDF company acknowledged receipt of these connection requests.
On 23 April 2009, no specific decision was notified to it. At the end of the training phase of its application for a building permit, Folelli was refused a tacit licence.
On 16 September 2009, EDF sent two technical proposals to the company Folelli. Financial.
On October 22, 2009, Folelli returned two copies Of these technical and financial proposals to the company EDF.
On 10 December 2009, the company Folelli sent the EDF company a down payment of 92 411.35 euros.
On 26 January 2010, EDF requested, by mail, to the Company Folelli to transmit a copy of the town planning permission for its photovoltaic power plant projects before 1 September 2010.
On 16 July 2010, the administrative court in Bastia cancelled the abovementioned tacit refusal And directs the administration to review the application for a To build within four months of the notification of its decision.
On September 17, 2010, EDF informed the company Folelli, by e-mail, that its projects were out of connection queue as soon as the
On the same day, Mr. KLAUS challenged EDF's decision to withdraw from the queue of his projects.
On November 26, 2010, the Prefect Of the Haute-Corse opposed a second refusal to the application for a relative building permit The projects of the electricity production facilities of Folelli.
On 16 February 2011, EDF sent a cheque to the company Folelli, in repayment of the financial contribution which had been paid on 10 December 2009.
On 23 March 2011, the company Folelli indicated to EDF, 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 Folelli.
On 27 March 2012, the Prefect of the Haute-Corse, by order, authorised the construction of its electricity production facilities.
On 16 April 2012, the company Folelli requested, by mail, the company EDF, its Reintegration into the connection queue as well as the grant of the Connection to its projects. Folelli filed a settlement cheque in the amount of 92 411.35 euros.
On April 25, 2012, EDF refused to grant the claims of Folelli, but indicated that its projects 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 facilities were not satisfactory, Folelli seized the Dispute resolution and dispute resolution committee against EDF.
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In its comments, Folelli believes 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 so doing, the EDF company did not take into account the case in which it was found, namely the assumption of a refusal of Licence to build cancelled by final court decision under which The town planning authority was finally issued.
Folelli states that, in the event of the cancellation of the refusal to issue a building permit application, it must be considered as Still under investigation on 1 September 2010.
Folelli submits that the deadline of 1 September 2010, for the production of town planning authorisations, has already been reviewed by the Dispute Settlement Committee and the Sanctions in its decision " Léonard Valentini " Of 19 November 2010, confirmed by a judgment of the Court of Appeal of Paris of 3 November 2011, as constituting in Corsica " A condition manifestly inadequate to the constraints of obtaining the requisite authorisations'.
It concludes that the EDF company could not therefore oppose such a requirement on 25 April 2012, the illegality of which was
The company Folelli argues that the exclusion of the queue from its projects undermines the principle of non-discrimination to the extent that projects, such as its own, regularly queued up Excluded from the mere fact that the administrative authority had not yet Issued definitively on applications for building permits for such projects on 1 September 2010.
It adds that the projects it develops were not submitted, on the date of the filing of its building permit, or on the date of the filing of the building permit. October 2008, the provisions of the decree of 19 November 2009 according to which photovoltaic production facilities must have a building permit.
Folelli states that if it took the initiative to deposit the October 2008 an application for a building permit is only for the realization of Small technical premises necessary for 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 licence that was granted to it Finally issued 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 Processing of connection requests
Folelli 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 to take into account all the hazards which the producers were likely to be confronted with in order to obtain the planning authorisations imposed by the Provisions of 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 By the aforementioned amending amendment.
Folelli supports To the extent that the Court of Appeal of Paris, 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 rule to applications for connection in different situations.
It therefore concluded that it was therefore for the EDF company to consider in its procedure Processing of requests to connect the case of projects, similar to its own, already queued for which a request for a building permit was 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 Folelli 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.
Folelli 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 application for connection presented by the company Folelli, to decide on 17 September 2010 to exit its projects Queue on the basis that the producer was not able to September 1, 2010, to produce the required planning permission.
As a result:
-order the EDF company to process the projects of Folelli's photovoltaic production facilities as having entered and remained in a connection queue since 23 January 2009;
-impart to the company Folelli un Delay in proceeding with the installation of its photovoltaic fleet for a period corresponding to the period between 17 September 2010, the date of the irregular exclusion of the projects of the queue, and the notification of the decision of the Dispute resolution committee and sanctions to be involved, calculated as of On 10 September 2011;
-order EDF to communicate all the draft contracts necessary to connect to the electrical grid of the projects of the company Folelli on the basis of the requirements contained in the proposals Technical and financial " Quercy " And " Quercy 1 " Sent to the petitioner on 16 September 2009, including in their financial components, established in accordance with the provisions of the Decree of 10 July 2006.
This within two months of the notification of the decision to Intervene.
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Seen the defence observations, recorded on October 5, 2012, presented by Electricité de France (EDF), a public limited company registered in the Register of Commerce and Companies of Paris under the Number B 552 081 317, whose head office is located at 22-30, avenue de Wagram, 75008 Paris, Represented by his legal director France, M. Oliviers SACHS, having for lawyers Emmanuel GUILLAUME and Simon DABOUSSY, Cabinet Baker & McKenzie, 1, rue Paul-Baudry, 75008 Paris.
EDF argues that if the Dispute and sanctions are competent to hear such a dispute in so far as it relates to the entry into the waiting-girl of two projects for electricity production facilities, it cannot be so in order to know the request of the Folelli company seeking to find out the unlawful nature of the rider Amendment to the procedure for processing applications for connection.
It considers that, in accordance with the administrative case-law, this amendment must be qualified as an administrative act of a regulatory nature, the legality of which cannot be Challenged as before the administrative court.
EDF adds that in its decision " Valentini ", confirmed by the Paris Court of Appeal, the Dispute Resolution Committee and the sanctions committee acknowledged that it was up to EDF to adapt its own procedure for processing connection
. The Dispute Resolution and Sanctions Committee, in a decision " JUWI " On 4 June 2010, decided that, for projects subject to the authorisation of town planning before the entry into force of the decree 19 November 2009, subjecting photovoltaic installations to the ground in itself to dispose of a permit To build, the queued entry had to take place only on the date of transmission by the producer of this authorization.
EDF indicates that in this case the projects of the company Folelli have never entered the queue Where no town planning authority for the work, other than Photovoltaic installations in themselves, necessary for the creation of a gross non-working surface of 205 m² has not been attached to applications for connection.
It concludes that the application by Folelli for the reinstatement in file Project is moot.
EDF adds that, assuming that the dispute resolution and sanctions committee considers Folelli's projects to be queued despite the lack of authorization, It will find that EDF was well founded to bring it out of 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 like the one met by the company Folelli, namely A period of twenty-seven months to obtain town planning authorization.
La EDF adds that, if it had taken into account the situation of the company Folelli, it would necessarily have discriminated against the projects of other producers regularly queued but having obtained, more
It also states that in any event the projects of the company Folelli would have entered the scope of the moratorium put in place by the decree of 9 December 2010, since its projects Did not have a building permit before the coming into force of the said Order.
La Company EDF finally points out that the exceeding of the deadline for the production of the building permit of the company Folelli 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 refusals which were 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 company Folelli did not fulfil the conditions to be Registered or held in the queue. It adds that those illegalities cannot justify, a posteriori, the reintegration into the queue of the Folelli projects, 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 device exists to take account of the The interests of both queuing and aspiring companies.
The EDF asks the Dispute Resolution Committee and the sanctions committee to reject the application by Folelli.
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In response to the reply, recorded on 30 October 2012, submitted by Folelli.
Folelli submits that the Dispute Resolution 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.
Folelli adds that in any case its conclusions Refer not only to the legality of the amending amendment but also to the fact that EDF could not validly oppose its requests to connect the amending amendment in order to decide to exit its queuing projects on 17 September 2010.
It states that if EDF now pleads with the Decision " JUWI " The Dispute Resolution and Sanctions Committee is to try to demonstrate that its projects would never have been queued, even though EDF has always considered them to have entered the queue
The Folelli company adds that the EDF company in the decision " JUWI " Moreover, that for projects, such as its own, 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
The Folelli Company submits that the dispute before the Dispute Settlement and Sanctions Committee is related to the exit of its electricity production facilities projects from the Connection.
In addition, it states that section 4.9 of the request processing procedure 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 installations which, unlike its own, exceeded a height of 12 Yards.
Folelli believes that the argument supported by the EDF company that its projects would never have entered the queue completely ignores the general principle of legal certainty which it is perfectly founded upon
It argues that the " JUWI jurisprudence " Cannot fail to apply the principle of legal certainty when its projects have already entered the queue.
Folelli states that it does not complain to EDF that it has not provided for a period of 27 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 made every effort to obtain it within the required time frame.
It also states that the problem is not simply a distinction between producers who were able to dispose of the problem within the prescribed time limit. Town planning authorisation and those who did not hold it within that same period.
Folelli argues in this respect that the producer who, like her, had taken all the provisions before the EDF company imposed such an obligation Of the production of a building permit for the benefit of, but which has been Illegal refusal cannot be equated:
-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 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.
Folelli indicates that until the intervention of the amending amendment to The procedure for processing applications for connection, and as claimed by EDF in the dispute " JUWI ", the entry and the holding of connection queuing were exclusively subject to obtaining permission to operate.
It concluded that the reinstatement of its projects did not affect the producers who entered Subsequently queued to the extent that it should have legitimately benefited from an urban planning authorisation as of 23 April 2009.
Folelli states that, contrary to the support of the company EDF, the fact that it should be maintained Queued for projects for which the denial of building permits is Dispute does not imply that the producer benefiting from a building permit is required at the same time to justify its definitive character.
It considers that following the reasoning of the EDF company would lead to consideration To exclude from the queue any project for which the town planning authorisation would be contested and that it 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 Disregard the effects of the judicial decisions to annul that refusal as never before intervened.
Folelli submits that its situation is a matter of the vagaries of its demand for town planning, the vagaries of the Both the Dispute Settlement Committee and the Paris Court of Appeal Impose on the company EDF to take into account.
It states that EDF cannot usefully invoke the remedy available to the company Folelli against the State in order to avoid its obligations and that such a course of action Action against the State is not such as to deprive it of the right to act before the Dispute Resolution and Sanctions Committee.
Folelli argues that the refusal to construct the license order should be substituted for Construction obtained on March 27, 2012, without obscuring the fact that the latter should have been issued to the Later on April 23, 2009.
It states that in the presence of an urban planning permission issued on April 23, 2009 the issue of queuing would never have arisen.
Folelli continues in its previous years 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 ruled out 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 conclusions of the Folelli company 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 the connection of the company Folelli, Condition the queued entry for the production of a building permit copy when It was necessary to carry out its projects.
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 Folelli's projects into the queue, but points out that the doctrine of the Dispute Resolution Committee and the sanctions should lead the latter to consider that projects cannot be reintegrated into line Because they have not entered 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 Folelli's projects should never have been in the queue.
EDF believes that Folelli challenges the regularity of the output of its queuing projects by developing several Arguments all based on the same erroneous assumption that the EDF company Had to assume the illegalities committed by the investigating authority of his application for an urban planning authorization.
She added as to the means she had presented in the dispute " JUWI " That these 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 requests for connection, was to take place only on the date of transmission by the producer of the copy of its planning permission.
EDF submits that the company Folelli blames it for Of hazards relating to the appraisal of applications for town planning authorisations which are
It adds that Folelli does not demonstrate how it would have failed to meet its obligations with respect to the processing of connection requests.
Finally, EDF submits that it is not responsible for the Financial consequences of the two refusals, unlawfully opposed by the prefect.
EDF maintains, therefore, its previous conclusions.
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Seen the other parts of the file;
Given the energy code, in particular Its articles L. 134-19 et seq;
Given the code of town planning, in particular its articles R. 421-1 and following;
Seen Order No. 2000-894 of September 11, 2000 , as amended, relating to the procedures applicable to the Energy Regulatory Board;
Vu Decree n ° 2010-1510 of 9 December 2010 suspending the obligation to purchase electricity produced by certain installations using solar radiative energy;
Vu The decision of 20 February 2009 on the regulation Within 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 The energy relating to the appointment of a rapporteur and an assistant rapporteur for the investigation of the claim for dispute under number 25-38-12.
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Parties have been regularly Convened at the public sitting held on February 20, 2013, of the Settlement Committee of Disputes and 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, Legal Director representing the Director General, Prevented;
Mr Jérémie ASTIER, rapporteur, and Mr Thibaut DELAROCQUE, assistant rapporteur;
Representatives of Folelli, assisted by Pierre Paul MUSCATELLI;
Representatives of EDF, assisted by Me Simon DABOUSSY.
After hearing:
-the report by Mr Jérémie ASTIER, presenting the pleas and conclusions of the parties;
-the observations of Mr Pierre Paul MUSCATELLI and Mr Martin KLAUS for Folelli; the company Folelli persists in its pleas 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 of the Services have retired.
On placement and queuing of connection request:
Folelli believes 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 connection queue.
It adds that, in so doing, the EDF company 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.
The Folelli company argues that the deadline of 1 September 2010 for the production of town planning authorisations has already been reviewed by the Committee for the Regulation 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 company Folelli should not have entered the queue when it had not produced with its application for a connection as of 21 January 2009, 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 section 4.9 of the processing procedure (then in force), requests for connection of the installations of Production of electricity to public distribution networks of the company, applied By the 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 du 7 septembre 2000, [...].
In this case, on the date on which the company Folelli asked EDF to submit a technical and financial proposal, that is, on January 21, 2009, the installation of photovoltaic panels Was not subject to any particular formality As part of the urban planning code.
However, a solar power generation facility, which is intended to provide electricity to a public distribution network, is technically constituted not only of Photovoltaic panels but also other constructions or electrical installations which, for some, such as delivery stations, require an urban planning authorisation pursuant to the provisions of Article R. 421-1 of the Code of Urbanism.
It follows from the documents in the file that, in order to achieve the Construction essential to the operation of electricity production facilities, it was necessary to obtain a building permit, as requested by the company Folelli.
Thus, pursuant to Article 4.9 of the Procedure referred to above, Folelli's plans for photovoltaic production facilities could not, as of 28 January 2009, be admitted, as they were, in the queue when no building permits were produced Concerning the implementation of the technical premises necessary for the operation The installation of electricity generation.
Under these conditions, the projects of the photovoltaic production facilities of the company Folelli must be regarded as never having entered the queue, contrary to what the company EDF indicated to him.
The fact that by the effect of the cancellations, successively handed down by the administrative court of Bastia, the refusal of permits to build the administrative authority was again seized of the initial application Of building permits is not such as to look like A registration on a regular basis before March 27, 2012, the date on which the prefect of Corsica issued the building permit requested.
The EDF company cannot be criticised for not having made such assumptions in its Procedure for processing connection requests
As a result, Folelli requests must be rejected.
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Decides:
Folelli requests are rejected.
This decision will be notified to Folelli 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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