Key Benefits:
Dispute Resolution and Sanctions Committee,
Seen request from Dispute settlement, registered on 3 August 2012 under number 23-38-12, presented, on the one hand, by the company Sun Agri 1, a limited liability company, registered in the register of trade and companies of Cayenne under number 518 606 728, Whose head office is located Pk 34, national road 1, Savane Césarée, 97355 Macouria-Tonate, represented by its manager, Xavier LORIGNY, and, on the other hand, by the company Rev ' Solaire, a simplified stock company, registered in the register of the Commerce et des sociétés d' Orléans sous le number 507 476 539, whose registered office is located 19, rue Bernard-Palissy, 45140 Saint-Jean-de-la-Ruelle, represented by its president, Xavier LORIGNY, having as counsel Me Benoît COUSSY, 4, rue de la Tour-des-Dames, 75009 Paris.
The companies Sun Agri 1 and Rev ' Solaire seized the committee of Dispute settlement and the sanctions of the Energy Regulatory Commission (hereinafter referred to as "Electricité de France") EDF "), on the conditions of connection to the public electricity grid of nineteen photovoltaic power stations.
It is apparent from the documents in the file that Sun Agri 1 develops nineteen photovoltaic projects, A 36 kVA installed production unit power, called:
" Farming of Mme Valérie LEIGNEL ", sur le territoire de la commune de Macouria (Guyana);
" SCEA Les Etoiles ", on the territory of the municipality of Macouria (Guyana);
" SCEA Crique des Pères ", on the territory of the municipality of Macouria (Guyana);
" Farming of Mrs. Gabrielle NICOLAS ", on the territory of the municipality of Macouria (Guyana);
" EARL Le Papayer ", on the territory of the municipality of Macouria (Guyana);
" Farming of Mr. Rodrigue ANTOINETTE ", on the territory of the municipality of Macouria (Guyana);
" Farming of Mr. Jean-Sébastien EUDE ", on the territory of the municipality of Macouria (Guyana);
" Farming of Mme Nathalie Le LIONNAIS ", sur le territoire de la commune de Macouria (Guyana);
" Ecuries de Fort Diamant ", on the territory of the municipality of Macouria (Guyana);
" La Clé des Champs ", on the territory of the commune of Macouria (Guyana);
" Maillet Forestal ", on the territory of the commune of Montsinéry (Guyana);
" Farming of Mrs. Chloée MAGNORE ", on the territory of the commune of Montsinéry (Guyana);
" SCEA Benth ", on the territory of the commune of Mana (Guyana);
" Farming of Mr. Eric BENTH ", on the territory of the commune of Mana (Guyana);
" Farming of Mr. Serge CYRILLE ", on the territory of the commune of Mana (Guyana);
" Farming of Mr. Tobie SIONG ", on the territory of the commune of Mana (Guyana);
" EARL Le Papayer ", on the territory of the commune of Matoury (Guyana);
" Farming of Mrs. Joana MENDES RAPOSO ", on the territory of the commune of Sinnamary (Guyana);
" Company MAILLET Odile ", on the territory of the commune of Kourou (Guyana).
EDF is the manager of the public electricity grid in the territory of these municipalities.
On 29 November 2009, the company Sun Agri 1 a Sent requests for connection to EDF for the nineteen photovoltaic power plants.
On November 4, 2010, Sun Agri 1 signed the terms and conditions of the connection, access and exploitation contracts (CRAE) for the nineteen electricity generation facilities.
29 In November 2010, Sun Agri 1 provided EDF with a 25 % deposit check for the connection of the production facilities.
By letter dated February 8, 2011, Sun Agri 1 indicated to EDF that the deadline for Connection of the production facilities was fixed at 4 May 2012 and that the conditions for the purchase of the electricity produced were fixed by the tariff " S06 " Of the Order of 10 July 2006. EDF approved this letter on 17 February 2011.
Certificates of compliance with the safety requirements in force have been addressed by the National Committee for the Safety of Electricity Users (hereinafter referred to as "the"). Consual ") For the nineteen production facilities:
-April 19, 2012, for production facilities " Farming of Mrs. Valérie LEIGNEL "," SCEA Crique des Pères "," Farming of Mrs. Gabrielle NICOLAS " And " Farming of Ms. Nathalie Le LIONNAIS " ;
-May 9, 2012, for production facilities " Farming of Mr. Rodrigue ANTOINETTE "," Farming of Mr. Jean-Sébastien EUDE "," The Field Key "," Maillet Forestal "," Mrs. Chloée MAGNORE's farming operation "," SCEA Benth "," Farming of Mr. Eric BENTH "," Farming of Mrs Joana MENDES RAPOSO ' And " MAILLET Odile company " ;
-May 15, 2012, for production facilities " Farming of Mr. Tobie SIONG " And " EARL Le Papayer " Commune of Matoury;
-May 21, 2012, for production facilities " SCEA Stars "," EARL Le Papayer " Macouria commune, " Ecuries of Fort Diamant " And " Farming of Mr. Serge CYRILLE ".
On June 28, 2012, Consual informed EDF that it was necessary to provide new certifications of compliance, as production facilities were not 100 % realized as In a previous letter by EDF.
On 5 July 2012, EDF indicated to Rev ' Solaire, acting on behalf of Sun Agri 1, that the production facilities could no longer benefit from The obligation to purchase, as they could not be put into service, or completed, in The time limits laid down in Article 4 of the Decree of 9 December 2010.
Considering that the conditions for connecting to the public distribution network of the nineteen production facilities were not satisfactory, the Sun Agri 1 companies and Rev ' Solaire has referred to the Dispute Resolution Committee and the sanctions resolution of the dispute between them and the company EDF.
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In its observations, the Sun Agri 1 and Rev ' Solaire argue that the dispute settlement committee is competent, the dispute not relating to the buyback tariffs, but to a difficulty connected with connection to the public distribution network
The Sun Agri 1 and Rev ' Solaire companies indicate that the nineteen applications for connection have all been qualified as complete by the company EDF. They submit that EDF indicates that it has acknowledged, in a countersigned letter dated 17 March 2011, that the nineteen connection, access and operating contracts (CRAE) had been signed on 2 November 2010 and received the 29 November 2010 with the corresponding deposit check.
They argue that if the nineteen production facilities are not in service, it is the exclusive fact of the EDF company which did not do the necessary to proceed with the extensions and Strengthening of power grids.
Sun Agri 1 and Rev ' Solaire Consider that the Decree of 9 December 2010, on the one hand, cannot be applied to an application by CRAE which, by its very nature, escapes the provisions of the moratorium and, on the other hand, does not suspend the execution of connection contracts that Are the CRAE, contrary to what the EDF company implies in its letter of 5 July 2012.
They indicate that the provisions of Article 3 of the Decree of 9 December 2010 are not opposable to the producer who has notified the EDF company The nineteen CRAE signed as well as the down payment before the entry into force, the 10 December 2010, of the same decree.
Sun Agri 1 and Rev ' Solaire consider that EDF cannot validly invoke the decree of 9 December 2010 to refuse to execute the 19 accepted CRAE.
They argue that the deadline 18 months provided for in Article 4 of the decree of 9 December 2010 did not actually run and that the procedure before the Dispute Settlement Committee suspends the course of a possible delay.
Sun Agri 1 and Rev ' Solaire Request that the time limit to be allocated to the EDF company to carry out the work Necessary for the connection of the production facilities, and the applicant companies to put in service these installations, be fixed by taking into account, on the one hand, the reasonable period of time to connect a production facility and, second For the duration of the proceedings before the committee.
Sun Agri 1 and Rev ' Solaire therefore request the Dispute Resolution and Sanctions Committee of the Energy Regulatory Commission:
-to say the Sun Agri 1 and Rev ' Solaire companies in their application;
-to order EDF to execute the bridging contracts with Sun Agri 1;
-to fix the time limit for EDF for Perform the work necessary for the connections of the nineteen production facilities of Sun Agri 1;
-set the time limit for the EDF company to service these production facilities.
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In view of the defence observations, recorded on 14 September 2012, presented by the Société Electricité de France (EDF), an anonymous company, registered in the register of commerce and companies of Paris under number B 552 081 317, whose head office is located at 22-30, avenue de Wagram, 75008 Paris, represented by its legal director France, M. Oliviers SACHS, having for lawyers Emmanuel GUILLAUME and Simon DABOUSSY, firm Baker & McKenzie, 1, rue Paul-Baudry, 75008 Paris.
EDF considers the projects of the company Sun Agri 1 to be in the field of The exception to Article 3 of the Decree of 9 December 2010 on its date of entry into force, but That it subsequently lost its profit by not completing its production facilities within the time limits imposed by the regulations, as evidenced by the letter dated 28 June 2012 from the Consual.
It submits that it belonged to the company Sun Agri 1 to complete its production facilities within 18 months of the signing of the CRAE, either before May 4, 2012, to avoid the suspension of the obligation to purchase provided for in Article 1 of the Decree of 9 December 2010
EDF company indicates that if it must have connected a production facility to the network In order for it to be put into service, the network manager does not intervene in any way in the operation of construction of the production facility, the completion of which within the prescribed period is the sole responsibility of the Producer.
It considers that, when it sends a proposal from CRAE to a producer, it formulates a technical and financial proposal for a connection, within the meaning of Article 3 of the Decree of 9 December 2010
Contends that the projects of Sun Agri 1 have lost the benefit of the derogation to the Suspension provided for in the Decree of 9 December 2010, due to its lack of diligence in completing its production facilities within the prescribed maximum period of 18 months.
It indicates that the connection agreements are only The necessary and preliminary accessory of the contracts of obligation to purchase and, in the absence thereof, they become moot. It therefore considers that the bridging agreements requested by the company Sun Agri 1 have become moot to the extent that the projects in question no longer enjoy the benefit of the obligation to purchase and where, in addition, Article 5 of the Decree of the December 9, 2010 requires the producer to make a new connection request.
As a result, EDF asks the Dispute Resolution Committee and the sanctions committee to reject the application by Sun Agri 1 and Rev ' Solaire.
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Viewed in response, recorded on October 2 2012, presented by Sun Agri 1 and Rev 'Solaire.
Sun Agri 1 and Rev' Solaire argue that Consual's letter of June 28, 2012, is debatable, that it must be removed from the debates and that the certificates of Compliance validated by the Consual are authentic. They submit, in particular, that no site control has been carried out by the Consual within 20 days of receipt of the complete file by the regional delegation and that this letter does not concern the nineteen Production facilities affected by this dispute.
They consider that the decree of 9 December 2010 does not impose a suspension of the performance of connection contracts, contrary to the claims of the company EDF. They indicate that the ECRs that are consecutive to the bridging proposals are actual contracts and not simple bridging proposals. They therefore deduce that the provisions of the Decree of 9 December 2010 are not opposable to the producer who has notified the EDF company of the CRAE signed with the deposit check, before the entry into force of this Decree.
Sun Agri 1 Companies And Rev ' Solaire submits that, while it is true that eligibility for a purchase price sometimes depends on the completeness of the connection file, the connection contract never depends on the contract of purchase. They add that a producer can very well obtain a bridging contract without an obligation to purchase and resell the electricity generated in the electricity market.
They consider the validity of the nineteen RCAEs to be indisputable. Any attempt to interpret the decree of December 9, 2010 as the basis for not executing them will have to be systematically ruled out.
Sun Agri 1 and Rev ' Solaire thus persist in their previous conclusions.
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Because of the rejoinder, Registered on 23 October 2012, presented by the company EDF.
EDF indicates, first, that the independence and impartiality of the Consual, an association recognised as a public utility by the decree of 29 September 2004, Cannot be called into question.
It submits, therefore, that it is the result of the information transmitted by the Consual, on 28 June 2012, that the installations of the Sun Agri 1 company, as of 4 May 2012, were not completed within the prescribed period By the decree moratorium of 9 December 2010.
EDF considers that the Connection contracts are always intrinsically linked to contracts of purchase, in that they constitute a necessary and indispensable prerequisite for the benefit of the obligation to purchase. It concludes that the bridging agreements have become moot since the projects no longer benefit from the obligation to purchase, they cannot be carried out.
It states that, if Article 3 of the Decree of 9 December 2010 Does not apply to Sun Agri 1 and Rev ' Solaire, the moratorium is imposed on them and it is for these companies to file new complete applications for connection in order to benefit from the obligation to purchase in accordance with Article 5 of the Decree.
The EDF company therefore persists in its previous conclusions.
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In view of the observations in triply, recorded on November 21, 2012, presented by Sun Agri 1 and Rev 'Solaire.
Sun Agri 1 and Rev' Solaire consider that if the request made by EDF to the Consual's regional delegation is analysed as a claim, it must be regularly rejected by the Consual, because only the user or the owner can bring a claim.
They indicate that, as soon as the EDF company Neither in the user's category nor in the category of the user, the EDF company is out of order to make claims to the Consual.
Sun Agri 1 and Rev ' Solaire claims that the response provided by Consual to EDF has no impact on the compliance certifications
They request that the letter of the Consual, dated 28 June 2012, produced by the company EDF be rejected in so far as it contains too much imprecisions and too many contradictions to be validly held.
Sun Agri 1 Companies and Rev ' Solaire considers that the indivisibility of connection and purchase contracts is limited to On the formation of the contract of purchase which has been born, since 12 January 2010, on the occasion of the complete application of the connection contract and not of the execution of the connection contract which, in any case, is autonomous and must be executed.
The Sun Agri 1 and Rev ' Solaire companies thus persist in their previous conclusions.
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In view of the additional observations, recorded on December 27, 2012, submitted by EDF.
Company EDF Submits that, in the light of the Consual letter of 28 June 2012, the installations Production, not carried out within the specified time period, no longer benefit from the obligation to purchase and that the connection agreements have become moot.
It considers that the indivisibility of connection contracts and contracts of purchase Applies both to the stage of their formation and their execution for the simple reason that the connection and the sale are two facets inseparable from the same operation.
The company EDF therefore persists in its previous conclusions.
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In view of the January 23, 2013 instruction, by which The rapporteur, in charge of the investigation of the case, asked the EDF company for the documents indicating the connection times agreed with the producers and the exchange of mail between the Consual and the EDF company, mentioned in the letter of the Consual dated 28 June 2012.
In view of the fax, registered on 24 January 2013, by which EDF communicated a letter sent by EDF to the Consual, on 31 May 2012.
The company EDF has also indicated that the control Work to connect the production facilities had been delegated to the Producers on the basis of the provisions of Article L. 342-2 of the Energy Code.
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In view of the second instruction measure of 25 January 2013 by which the rapporteur requested the Sun Agri 1 companies and Rev ' Solaire the connection proposals made by EDF to the producers and mentioned in the special conditions of the connection, access and exploitation contracts (CRAE).
In view of the fax, recorded on 28 January 2013, by which Sun Agri 1 and Rev ' Solaire indicated that they were not Possession of proposal for connection stricto sensu since the CRAE have been validated as is at the request of the company EDF, which subsequently decided to submit quotes subsequent to the validation of the CPRA.
Sun Agri 1 Companies And Rev ' Solaire also indicated that the work of connecting to the public distribution network of production facilities is solely the responsibility of EDF as evidenced by the estimate of 17 January 2011.
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Seen other parts of the folder;
Given the energy code, including its Articles L. 134-19 et seq;
Seen Decree No. 72-1120 of 14 December 1972 concerning the control and attestation of conformity of electrical installations Internal to the regulations and safety standards in force;
In view of the amended Decree No. 2000-894 of 11 September 2000 on the procedures applicable to the Commission Energy regulation;
Seen decree n ° 2010-1510 of December 9, 2010 suspending the obligation to purchase electricity produced by certain installations using radiative energy from the sun;
Vu The order of 17 October 1973 implementing the application of Decree No. 72-1120 of 14 December 1972concerning the control and certification of the conformity of electrical installations Internal to safety regulations and standards Vigour;
In light of the amended Order of 17 October 1973 for the approval of an organization to monitor the conformity of internal electrical installations with existing safety regulations and standards;
In view of the February 20 decision 2009 on the Rules of Procedure of the Committee for the Settlement of Disputes and Sanctions of the Energy Regulatory Commission;
In view of the decision of 3 August 2012 of the Chairman of the Dispute Settlement and Sanctions Committee Committee on Energy Regulation on the appointment of a rapporteur and a Deputy rapporteur for the investigation of the dispute settlement application under number 23-38-12;
In view of the decision of 1 October 2012 of the Dispute Settlement and Sanctions Committee of the Commission for the Regulation of Energy On the extension of the time limit for the investigation of the dispute brought by Sun Agri 1 and Rev ' Solaire.
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The parties who were regularly convened at the public sitting, who were held On January 28, 2013, the Dispute Resolution and Sanctions Committee, 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 and representing the Director General prevented;
Mr Didier LAFFAILLE, Rapporteur, And Mr Thibaut DELAROCQUE, Deputy Rapporteur;
Representatives of Sun Agri 1 and Rev ' Solaire, assisted by Me Benoît COUSSY;
Representatives of EDF, assisted by Me Simon DABOUSSY.
After hearing:
-the report by Mr Didier LAFFAILLE, presenting the parties'means and conclusions;
-the observations of Me Benoît COUSSY for Sun Agri 1 and Rev' Solaire companies; Sun Agri 1 and Rev ' Solaire companies persist in their means And conclusions;
-the observations of Me Simon DABOUSSY for the company EDF; the company EDF indicates that it has sent the specifications for connection after the validation of the connection, access and exploitation contracts (CRAE); it indicates That the Master's work in connection work has been delegated to the Corporation Electrical work Guyana (STEG); EDF company persists in its means and conclusions;
No carry-forward has been requested;
The Dispute Settlement and Sanctions Committee deliberated on February 6, 2013, after The parties, the rapporteur, the deputy rapporteur, the public and the service agents withdrew.
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On the admissibility of the Sun Agri 1 and Rev ' Solaire request:
Sun Agri 1 and Rev 'Solaire ask the Dispute Resolution Committee and the sanctions committee to say the Sun Agri 1 and Rev' Solaire companies in their application.
Sun Agri 1 and Rev ' Solaire argue that the committee Dispute settlement is competent, the dispute not over the redemption tariffs but on a difficulty connected with connection to the public electricity distribution network.
Article L. 134-19 of the Energy Code provides that the " Dispute Resolution and Sanctions Committee may be seized in the event of a dispute: 1 ° Between managers and users of public transmission or distribution networks [...] on access to such networks [...] or their use, in particular in the event of refusal of access or disagreement on the conclusion, The interpretation or performance of the contracts referred to in Articles L. 111-91 to L. 111-94, L. 321-11 and L. 321-12 [...], the reference to the committee is at the initiative of either of the parties ... ".
It is not disputed that 19 CRAE were Signed by Sun Agri 1 on November 4, 2010, and that there is a dispute over Connection of production facilities to the public electricity grid within the jurisdiction of the dispute resolution and sanctions committee.
On the application of the decree of 9 December 2010:
Sun Agri 1 and Rev ' Solaire ask the Dispute Resolution Committee and the sanctions committee to order EDF to execute the bridging contracts with Sun Agri 1.
Article 1 of the decree of 9 December 2010 provides that the " obligation to conclude a contract for the purchase of electricity produced by the installations referred to in Article 2 of the Decree of 6 December 2000 referred to above shall be suspended for a period of three months from the date of entry In force of this Order. No new applications can be filed during the period of suspension. "
Article 3 of the same Decree of 9 December 2010 provides that" The provisions of Article 1 shall not apply to electricity generation installations from the radiative energy of the sun whose producer has notified the network operator, by 2 December 2010, of its acceptance of the proposal Technical and financial connection to the network ".
Article 4 of the same decree provides that the" The benefit of the obligation to purchase under Article 3 shall be subject to the commissioning of the installation within 18 months of the notification of acceptance of the technical and financial proposal for connection to the Network or, where such notification is earlier than nine months from the date of entry into force of this Order, to the commissioning of the facility within nine months of that date. ".
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It appears from the Parts of the file, on the one hand, that Sun Agri 1 intended to benefit from the obligation Purchase for the nineteen production facilities and, on the other hand, that the CRAE established by the EDF company were signed, with a deposit cheque on 29 November 2010, but on the date of entry into force of the decree of 9 December 2010, These production facilities were not connected to the public distribution network and the purchase contracts were not signed.
As a result, the 19 projects, on the one hand, fell within the scope of the Decree of 9 December 2010 but, on the other hand, benefited from the provisions of Article 3: The fact that these nineteen projects, because of their technical characteristics and the connection procedure applied by the EDF company, gave rise directly to CRAE and not to technical proposals, and To the extent that a CRAE project contains the elements of a technical and financial proposal.
It follows that Article 4 of the Decree of 9 December 2010 is applicable, because of its very terms, to the nineteen Projects.
In this case, having regard to the above-mentioned date of notification of The acceptance of the CRAE, the commissioning of the production facilities of the company Sun Agri 1 was to occur within 18 months of November 29, 2010, or no later than 30 May 2012.
On the performance of contracts Connected with Sun Agri 1 and the time required to carry out the work necessary for the connections and commissioning of the production facilities of Sun Agri 1:
Sun Agri 1 and Rev ' Solaire The Dispute Resolution and Sanctions Committee:
-to fix the time limit for the EDF company to carry out the work necessary for the connections of the nineteen production installations of the company Sun Agri 1;
-to fix the time limit for the company EDF to put in service these Production facilities.
Article 1 of the Decree of 14 December 1972 provides that " Shall be the subject of a certificate of conformity to the safety requirements imposed by the regulations in force for the type of installation concerned, prior to its power-on by an electricity distributor: [...]
-any power generation installation of less than 250 kilovolt power connected to the public electricity grid and requiring a modification of the internal electricity installation [...] ".
Article 2 of the same decree of 14 December 1972 provides that the " attestation of conformity is necessarily submitted by the author to the visa of one of the bodies referred to in Article 4 below. This body shall carry out or carry out the control of the installations which it considers necessary, if necessary on the basis of a statistical sample of the installations considered under the conditions approved by the Minister responsible for electricity and Must make its visa conditional on the removal of the defects of the installation found during that inspection. "
Article 4 of the Order of 17 October 1973, taken pursuant to the Decree of 14 December 1972, provides that the" Bodies authorised to issue the forms of attestation of conformity must, within a maximum of 15 days from the date of receipt of the certificate of conformity:
To place their visa on the certificate and return it to the person who established it; or
to report to the latter the non-conformities presented by the electrical installations subject to certification. "
Under this Order, the National Committee for the Safety of Electricity Users (Consuel) is authorised to exercise control of the conformity of internal electrical installations to the regulations and standards in force.
It is apparent from the documents in the file that the Consual Covered, on 19 April, 9, 15 and 21 May 2012, certificates of compliance with the Safety requirements for the nineteen production installations.
In response to a letter from EDF dated 31 May 2012 reporting the findings of one of its agents according to which the production facilities of the Sun Agri 1 would not have been completed, the Consual requested, on the same day, the company EDF " Not to consider the thirty-six certificates you hold concerning [the installer Rev ' Solaire] ". By letter dated 28 June 2012, the Consual confirmed to EDF that it was necessary for new certificates of conformity to be provided.
Whatever the grounds on which the Consual considered it necessary to challenge the He had applied to the thirty-six certificates of conformity issued by Rev ' Solaire, it was for him to apply Article 4 of the Order of 17 October 1973, that is to say in this case to the author of the Certification of non-compliance of electrical installations, within the maximum time limit
Or, it is not apparent from any of the documents in the file that the Consual would have performed this substantial formality.
As a result, the visas affixed on 19 April, 9, 15 and 21 May 2012 must Be deemed to be valid and the nineteen production facilities must be deemed to have been completed before the expiry of the eighteen-month period provided for in Article 4 of the Decree of 9 December 2010
Connection work within the time limit which the connection contract provides for and, in all State of cause, within a period of six months from the date of notification of this Decision, subject to ensuring that the production facilities of the Sun Agri 1 company comply with the requirements of Applicable security.
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Decides:
Electricité de France will execute the nineteen connection, access and operating contracts (CRAE).
It will be the responsibility of Electricité de France to perform the bridging work within the period specified in the connection contract. And, in any event, within six months from the date of the Notification of this Decision, subject to ensuring that the production facilities of Sun Agri 1 comply with the applicable safety requirements.
This decision will be notified to Sun Agri 1 and Rev ' Solaire and to 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.
Root
