Key Benefits:
On Dispute Resolution and Sanctions Committee,
Seen request for dispute resolution, registered On 7 April 2011, under number 177-38-11, presented by the company JCV ECOLOGY, a company with limited liability, registered in the register of trade and companies of Le Mans under number 523 685 683, whose head office is located 55 rue Principale, 72190 Sargé-lés-le-Mans, represented by his legal representative, Caroline ROBINEAU, Manager, having a lawyer, Sophie VILLER, 15, rue Beaujon, 75008 Paris.
The company JCV ECOLOGY has referred the dispute to the Dispute Resolution Committee The Energy Regulatory Commission of the dispute between the Commission and the company EDF ARCHIPEL GUADELOUPE (hereinafter " EDF company), sur les conditions de connect au réseau public de distribution d' electricity d' un projet de centrale photovoltaics situé sur la commune de Saint-François (Guadeloupe).
Il emerges des pièces du dossier que la société JCV ECOLOGY a wished Develop a project for photovoltaic installation of a power of 10.8 kVA on a building located in the territory of the commune of Saint-François (Guadeloupe).
EDF is the manager of the public electricity distribution network on The territory of this municipality.
Pre-work declaration Filed on July 6, 2010 for this project by SOLAR ELECTRIC GUADELOUPE ILES DU NORD was the subject of an order of non-opposition by the Mayor of Saint-François on July 28, 2010.
By letter received on August 3, 2010, the JCV ECOLOGY sent to EDF, through its agent, the company SOLAR ELECTRIC GUADELOUPE AND ILES DU NORD, a request to connect its installation to the public electricity distribution network.
December 7 2010, EDF transmitted a document entitled " Connection quote " SOLAR ELECTRIC GUADELOUPE AND NORTHERN ILES.
On the same day, this document was returned signed and accompanied by the corresponding deposit check by the company JCV ECOLOGY.
Considering that the conditions for connecting to the public network of Distribution of its production facility was not satisfactory, the company JCV ECOLOGY brought before the Dispute Settlement Committee and the sanctions of the Commission for the Energy Regulation of a dispute that Against EDF.
On 19 April 2012, the company JCV ECOLOGY carried out a New connection request
On June 4, 2012, the EDF company forwarded to the company SOLAR ELECTRIC GUADELOUPE a quotation and an agreement for connection, access and exploitation (CRAE).
This agreement, together with the deposit check Corresponding, was returned by the company JCV ECOLOGY to the company EDF.
On September 6, 2012, the installation of the company JCV ECOLOGY was commissioned.
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In Its observations, the company JCV ECOLOGY claims that having sent its application for a connection to EDF on 3 August 2010, that is, before 2 September 2010, its rights to the maintenance of the conditions of purchase fixed by the order of 12 January 2010 Were crystallised by the double effect of the obligation of purchase established by Article 10 of the Act of 10 February 2000 and the transitional provisions of the decree of 31 August 2010.
It considers that the provisions of the Decree of 9 December 2010 Provide that the suspension of the obligation to purchase does not apply to projects Power is less than or equal to 3 kW (art. 2) or to those for which the producer has notified, before 2 December 2010, his acceptance of the technical and financial proposal (Art. 3), being specified that the date of notification corresponds to the date of dispatch, that this choice has resulted in the suspension of the obligation to purchase the will of the network manager.
The company JCV ECOLOGY considers that it As a result of Article 13 of the standard specifications for the concession of the public electricity transmission network approved by the Decree No. 2006-1731 of 23 December 2006, of Article 35 of the said specification, and Articles 4.2.1.3 and 4.7 of the document Reference technique relating to the procedure for processing applications for the connection of electricity production facilities to public distribution networks, that a maximum period of three months is granted to ERDF and any manager of Network for sending a technical and financial proposal to the producer. It therefore considers that, in the present case, EDF was required to submit to it a technical and financial proposal before 4 November 2010, that no technical and financial proposal was sent to it, which therefore the EDF company committed A breach of its network manager obligations, which is akin to a denial of access to the network, which is causing direct and certain harm to it.
It submits that, as a result of the wrongful conduct of EDF, it is To oppose by EDF the suspension of the obligation to buy and is deprived of the Possibility to benefit from the purchase rates set by the decree of 12 January 2010.
The company JCV ECOLOGY also adds that the dispute settlement and sanctions committee is competent as soon as the dispute concerns access to the network and The manager has failed to meet his obligations under his network manager's duties by not communicating any technical and financial proposals. The company JCV ECOLOGY states that the Energy Regulatory Commission has already considered that the fact that the network manager does not produce the technical and financial proposal within the three-month period can be considered
As a result, the JCV ECOLOGY company requests the Dispute Resolution and Sanctions Committee to:
-see the failure by the EDF company due to the absence of communication of PTFs within the three-month period;
-that EDF is not entitled to rely on the decree of 9 December 2010 to oppose the Communication of a PTF to the JCV ECOLOGY company;
-that the denial of access to the network is faulty;
As a result:
Main title:
-order the EDF company to send it within 15 days, under penalty of 500 euros per day of delay, a connection contract in the terms of the connection quotation (PTF) accepted on 7 December 2010 and to implement The necessary steps to connect this photovoltaic installation to its commissioning;
-take all necessary measures to put the JCV ECOLOGY company in a position to benefit from the obligation to purchase the tariff conditions Fixed by the decree of 12 January 2010;
-order the company EDF to take all Useful measures to put the JCV ECOLOGY company in a position to benefit from the obligation to purchase the tariff conditions laid down by the order of 12 January 2010;
In the alternative:
-order EDF to repair the financial damage suffered by the company JCV ECOLOGY, consisting of the costs it incurred for the production of its electricity production facility of EUR 46 470.23 (HT);
- Order EDF to repair the financial damage suffered by the company JCV ECOLOGY, resulting from the impossibility of benefiting from the obligation to purchase the tariffs fixed by the order of 12 January 2010 involving an injury of EUR 120 736.
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By decision dated April 29, 2011, the Dispute settlement and sanctions suspended the processing of the application pending the intervention of the decision of the Council of State on requests for annulment of the decree of 9 December 2010.
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By Mail of 5 September 2012, the Director General of the CRE asked the EDF company to submit its observations.
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In view of the defence observations n ° 1, recorded on 15 October 2012, presented by the company EDF, limited liability company of 924 433 331 euros, registered in the register of commerce and Of the companies of Paris under number 552 081 317, whose head office is located 22-30, avenue de Wagram, 75008 Paris, represented by Olivier Sachs, legal director France, having for lawyer My Emmanuel Guillaume and Simon Daboussy, SCP BAKER & McKENZIE, 1, rue Paul-Baudry, 75008 Paris,
It states, as a preliminary point, that the specification specifications for the concession of the public electricity transmission network, approved by the Href=" /viewTexte.do?cidTexte=JORFTEXT000000820236 &categorieLink = cid"> decree n ° 2006-1731 of 23 December 2006, quoted by the company JCV ECOLOGY, is not applicable in this case when this specification concerns only the transmission network and not that of public distribution of the electricity to which the project of the JCV ECOLOGY company must be connected.
The company EDF Argues that the provisions of Article L. 134-19 of the Energy Code do not confer jurisdiction on the Dispute Settlement Committee and the sanctions to characterise a possible prejudice resulting from the actions of the network manager concerned
It is, therefore, of the opinion that the Disputes and sanctions cannot rule on the link between the alleged wrongful acts of the EDF company and the fact that the latter opposed the suspension of the obligation to purchase provided for by the decree of 9 December 2010 and Be deprived of the opportunity to benefit from the purchase rates fixed by the order of 12 January 2010, which, therefore, the said committee cannot order EDF to conclude a connection agreement on the basis of an alleged infringement since it Is not competent to see this breach.
EDF reports that the company JCV ECOLOGY has made a new connection request for its project, that the installation has been put into service, that therefore the dispute resolution request is no longer applicable.
It also considers that the Disputes and sanctions cannot, for the same reasons, require EDF to take all necessary measures to put the JCV ECOLOGY company in a position to benefit from the purchase rates set by the decree of 12 January 2010, Or to grant the request of the company JCV ECOLOGY for the EDF company to be condemned To repair the alleged financial damage.
EDF considers that, in any event, no infringement can be criticised. It submits, in fact, that the three-month time limit for sending a connection agreement to a producer is purely indicative and that there are no penalties attached to it being exceeded. EDF reiterates that the Dispute Settlement and Sanctions Committee refuses to consider that the producer may be deemed, by reason of the three-month time limit, to be deemed to have accepted the offer of connection before the entry into In force of the Decree of 9 December 2010, which the Court of Appeal of Paris has very recently confirmed these decisions, that the Dispute Resolution Committee and the sanctions also refuse to order EDF to issue an offer of connection to the Conditions prevailing prior to the entry into force of the decree of 9 December 2010
Adds that the application for connection of the company JCV ECOLOGY has been treated with as much diligence as possible by the company EDF, since it has been confronted with an exponential increase in connection requests, which Is under the " Foreign cause " Within the meaning of the provisions of article 1147 of the civil code.
EDF specifies that in these circumstances the EDF company does not Could be responsible for any delay or opposing a refusal of access to the network to the company JCV ECOLOGY, as soon as a BT connection agreement was sent to him on 7 December 2010, that the company JCV ECOLOGY carried out a new Connection request, JCV installation ECOLOGY has so far been connected to the network, that no denial of connection can be characterized.
Finally, it considers that the factual circumstances for which the JCV ECOLOGY company has been subject to the decree of 9 December 2010 Have no impact on the applicability of this Order to the latter.
As a result, EDF asks the Dispute Resolution Committee and the sanctions committee to reject the application by JCV ECOLOGY as unfounded.
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Given folder parts;
Given the energy code, including Its Articles L. 134-19 et seq.
Seen the Decree n ° 2010-1510 of 9 December 2010 suspending the obligation to purchase electricity produced by certain installations Using the radiative energy of the sun;
In view of the amended Decree No. 2000-894 of 11 September 2000 concerning the procedures applicable to the Commission for the regulation of Energy;
In view of the decision of 20 February 2009 The Rules of Procedure of the Committee for the Settlement of Disputes and Sanctions of the Energy Regulatory Commission;
In view of the decisions of 11 April 2011 and 7 March 2013 of the Chairman of the Dispute Settlement Committee and the sanctions Energy Regulation Committee on the appointment of a rapporteur and an assistant rapporteur for the investigation of the dispute settlement application recorded under number 177-38-11;
In view of Decision No 344972 and others of 16 November 2011 of the Conseil d' Etat, société Ciel et Terre et autres;
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Parties regularly convened at the public meeting of the Dispute Resolution and Sanctions Committee, composed of Monique LIEBERT-CHAMPAGNE, Chairperson, Sylvie MANDEL, Roland PEYLET and Christian PERS, Committee members, which was held on 8 July 2013, in the presence of:
M. Olivier BEATRIX, Legal Director and representing the Director General prevented.
Ms Maud BRASSART, Rapporteur, and Mr Marc DREVON, Assistant Rapporteur;
The JCV ECOLOGY regularly called not being represented;
The Representative of EDF, assisted by Me Pierre-Edouard PIVOIS;
After hearing:
-the report by Ms Maud BRASSART, presenting the means and conclusions of the parties;
-the comments of Me Pierre-Edouard PIVOIS for the EDF company; the EDF company persists in its pleas and conclusions;
No postponement of meetings Having been requested;
The dispute resolution and sanctions committee deliberated on 8 July 2013, after the parties, the rapporteur, the deputy rapporteur, the public and the service agents withdrew.
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On the existence of a dispute between JCV ECOLOGY and the EDF company:
EDF submits that the applications of the JCV ECOLOGY company became moot as soon as the parties entered into a bridging, access and exploitation agreement on July 9, 2012 after making a New connection request on 19 April 2012, and that the installations of the JCV ECOLOGY company have been put into service.
Under the provisions of Article L. 134-19 of the Energy Code:
" The Dispute Resolution and Sanctions Committee may be seized in the event of a dispute:
1 ° Between managers and users of public electricity transmission or distribution networks;
(...)
These disputes relate to access to such networks, works and installations or their use, in particular in the case of Refusal of access or disagreement on the conclusion, interpretation or performance of the contracts referred to in Articles L. 111-91 to L. 111-94, L. 321-11 and L. 321-12, or contracts relating to the transport and geological storage operations of Carbon dioxide referred to in Article L. 229-49 of the Environment Code.
Referral to the committee is initiated by either party. "
It is apparent from the documents in the file, and it is not disputed, that the company JCV ECOLOGY made a new application for connection on 19 April 2012 for the same installation, which it concluded, without reservation, a connection agreement, Access and exploitation with the EDF company on 9 July 2012 and that these installations are now in service.
The Dispute Resolution Committee and the Sanctions Committee can therefore only observe that the dispute between the JCV companies ECOLOGY and EDF have become moot.
As a result, there is no need for the settlement committee Disputes and sanctions to adjudicate the applications of the JCV ECOLOGY company.
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Decides:
The requests from the JCV ECOLOGY company have become moot.
This decision will be notified to the JCV ECOLOGY company and to Electricité de France. It will be published in the Official Journal of the French Republic.
Done at Paris, July 8, 2013.
For the
Dispute and Sanctions Committee :
The President,
M. Liebert-Champagne
