Key Benefits:
The Energy Regulatory Commission,
Due to the request for a dispute resolution filed on September 5, 2003 under number 03-38-08, presented by SARL Cogé de Kerverzet, Kerverzet, 29490 Guipavas, registered in the RCS of Brest under number B 449 929 850, represented by its managers, MM. Philippe Daré and Jean-Pierre Daré;
La société Cogé de Kerverzet claims that Electricité de France, a public distribution network manager, did not comply with the procedure for processing applications for connection of installations of Electricity generation. It states that the technical and financial proposal was forwarded to it with a delay of approximately three weeks in relation to the normal period for processing its request, which is three months, and that the amount of this technical proposal and EUR 317 262, in contrast to the exploratory study, which mentioned an amount of EUR 21 300. Cogé de Kerverzet disputes, for these reasons, the amount of the technical and financial proposal dated 14 August 2003, which is incompatible with the profitability of its project;
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Due to defence observations, recorded on September 22, 2003, submitted by Electricité de France, public institution Industrial and commercial, registered in the RCS of Paris under number B 552 081 317, whose head office is located at 22-30, avenue de Wagram, 75008 Paris, represented by Mr Robert Durdilly, Director of EDF-GDF Services;
Electricité de France Considers, in the first place, that it has complied with the deadlines for the processing of applications for the connection of decentralised production facilities, since it sent its technical and financial proposal on 14 August 2003, namely within the time limit He had indicated in his letter of 14 May 2003. Electricité de France notes that, in any event, the Cogé de Kerverzet company does not take advantage of any prejudice which would be linked to a possible delay in the transmission of the technical and financial
. Second, that the amount included in the exploratory study cannot, under any circumstances, constitute a quotation. It states that mention was made to Cogé de Kerverzet, as of April 17, 2003, at the time of its request for an exploratory study, that the amount of the exploratory study does not involve the network manager. This information was reiterated in the letter of 26 May 2003, which accompanied the exploratory study itself.
Electricité de France states, thirdly, that Cogé de Kerverzet could not ignore the fact that the exploratory study did not Did not take into account the constraints of short circuit power. Electricité de France indicates, in this respect, that the studies relating to the power of the short circuit cannot, because of their complexity, be carried out at the stage of the exploratory
. Article 4 of Decree No 2003-229 of 13 March 2003 on general technical requirements for the design and operation of installations for connection with public distribution networks, It is the responsibility of the network manager to ensure that the design of the facilities to be connected and their connection scheme are capable of respecting, in a default situation, the cut-off power of the circuit breakers, the thermal holding and the holding Electrodynamic efforts of the works of the public distribution network and the delivery stations of the installations.
Electricité de France recalls, also, that under Article 5 of the Decree of 17 March 2003 on requirements Design and operation techniques for connecting to the public distribution system of an electrical energy production facility, the connection of a production facility shall not cause, in a default situation, a Exceeding the short circuit current beyond the line or network limit, for the HTA or BT devices.
Electricité de France considers, therefore, that Cogé de Kerverzet could not ignore the financial impact of the calculation
Electricité de France therefore asks the Energy Regulatory Commission to reject the request by Cogé de Kerverzet;
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Seen the reply comments, recorded on October 7, 2003, submitted by Cogé de Kerverzet;
Company Cogé de Kerverzet maintains that Electricité de France did not meet the deadline for production of the Proposed technical and financial proposal for the processing of connection requests, since its application was sent on 24 April 2003, and that Electricité de France took 20 days to acknowledge receipt. The applicant company claims, as a result of that delay, an injury equal to the amount of interest on the costs already incurred (studies, instalment payments), if the project is only staggered in time, or the full amount of those costs (i.e. 84 EUR 572), if the project does not take place as a result of the maintenance of the technical and financial proposal.
The company Cogé de Kerverzet considers, moreover, that the exploratory study determines a good one. Order of magnitude of cost ", according to the terms used by Electricité de France itself, and indicates that the amount mentioned in the exploratory study gave it satisfaction, it decided to start its project further on the basis of this
On the other hand, Cogé de Kerverzet is of the opinion that Electricité de France, in its capacity as an informed professional, should in any event have to indicate the estimated amount of short-circuit intensity constraints, as soon as possible. The establishment of the exploratory study. It states, also, that a study conducted in 1999 for a request to connect a similar facility located in Kerverzet had not revealed a constraint of short circuit intensity.
Company Cogé de Kerverzet observed That it has not received an explanation of these constraints of short circuit power, despite its repeated requests and despite the obligation of transparency weighing on Electricité de France. It points out that the technical and financial proposal does not sufficiently justify the sum of EUR 308 987 in the heading ' Adaptation of 5993 m of HTA drivers on departure from the producer and on the other departures from the source position ". It adds that Electricite de France did not respond to the proposal to modify the project, the producer side, in order to limit the problems of short circuit power.
Company Cogé de Kerverzet therefore asks the Commission Regulation of energy:
-as a principal, to direct Electricité de France to submit a technical and financial proposal, the amount of which is the same order of magnitude as the exploratory study;
-and, in the alternative, in Confirmation of the amount of the technical and financial proposal already made by Electricité de France, to repair the financial damage incurred by it, consisting of the costs it has incurred so far;
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In response to the reply, recorded on 17 October 2003, submitted by Electricité de France;
Electricité de France submits, in the main proceedings, that the claim for compensation for damages, presented by the Cogé de Kerverzet, is inadmissible because the Energy Regulatory Commission has jurisdiction only to fix the technical and financial conditions in which access or use of the networks is ensured, and is not entitled to To order damages.
Electricité de France claims, in the alternative, that the application by Cogé de Kerverzet must be dismissed on the merits.
It persists in its previous writings and indicates that it has complied with the Three months for the implementation of a technical and financial proposal announced by its letter of 14 May 2003. It also notes that Cogé de Kerverzet has not suffered any prejudice as a result of a possible delay in sending the technical and financial proposal. He points out that, in each letter relating to this study, he indicated that the amount of the exploratory study was not a quotation and, in any event, the company Cogé de Kerverzet does not provide proof that the expenditure, of which it Request the refund, have been incurred on the basis of the result of the exploratory study.
Electricité de France indicates, also, that the studies on short circuit power constraints are long and complex and that, the parameters Of the network having evolved from the connection of a new producer and the increase in the power of the installation of another producer, the comparison with the results of the connection study conducted in 1999 is not relevant.
Electricité de France indicates that an alternative solution, consisting of creating a dedicated departure and installing an HTA/HTB transformer to lift the short circuit power constraint, would have been more expensive. It submits that it therefore sought the cheaper connection solution, both for the network manager and for the producer.
Electricité de France therefore reiterates its request to reject the request of Cogé de Kerverzet ;
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Based on the reply comments, recorded on October 27, 2003, submitted by Cogé de Kerverzet;
Kerverzet's Cogé Company persists in its writes. It states that the connection of a producer did not have to change the characteristics of the network in comparison with the 1999 study, which it referred to in its earlier submission. Moreover, it points out that Electricite de France, which did not answer its questions concerning the technical and financial proposal of 14 August 2003, had an approach that was not transparent.
Company Cogé de Kerverzet therefore maintains Its conclusions and requests that the amount of the technical and financial proposal be reduced to an amount equal to the magnitude of the amount indicated in the exploratory study;
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Having regard to all the files submitted by the parties;
In view of Law No. 2000-108 of 10 February 2000, as amended, on the modernisation and development of the public electricity service;
Having regard to Decree No. 2000-894 of 11 September 2000, Amended, relating to the procedures applicable to the Energy Regulatory Commission;
In view of the decision of 15 February 2001 on the rules of procedure of the Commission for the regulation of energy;
In view of the decision of 6 September 2003 Chairman of the Energy Regulatory Commission for the appointment of a rapporteur and an assistant rapporteur for the inquiry of this dispute resolution;
In view of the decree of 23 December 1994 approving the workbook The expenses of the concession to Electricité de France of the general power supply network;
Having regard to Decree n ° 2003-229 of 13 March 2003 on general technical requirements for design and operation Must satisfy the installations for connection to the public distribution networks;
In view of the decree of 17 March 2003 on the technical design and operating requirements for connection to a public network of Distribution of an electrical power generation facility;
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Parties that have been regularly called to the public session before the panel;
After hearing, the 30 October 2003, during the public sitting before the Committee, in the presence of:
Mr Jean Syrota, President, Mrs Jacqueline Benassayag and MM. Bruno Léchevin, François Morin and Jacques-André Troesch, Commissioners;
Mr Olivier Challand Belval, Director General, Ms Gisèle Avoie, Legal Director;
Mr Marc Chevrel, Rapporteur;
MM. Daré and Orvoen, representing Cogé de Kerverzet;
MM. Jean-Claude Millien and Philippe Alaux and Mme Bénédicte Magherini, Representative Electricité de France:
-the report by Mr Marc Chevrel, setting out the means and conclusions of the parties;
-the comments of Mr Orvoen, for the company Cogé de Kerverzet: the company Cogé de Kerverzet persists in its conclusions. It recalled that the 20-day period for acknowledging receipt of the request for a technical and financial proposal was too long, and indicated that the amount of the exploratory study should give an order of magnitude of the amount of the technical proposal and Financial, which was not the case for the connection in question. It claims to have asked for explanations of the amount of the technical and financial proposal and to have received a negative response from Electricité de France;
-the comments of Mr Jean-Claude Millien, for Electricité de France: Electricité de France considers that the Energy Regulatory Commission did not comply with Article 13 of its Rules of Procedure by transmitting to it on 27 October 2003 the comments of Cogé de Kerverzet, while the sending of the On 22 October 2003, for the meeting of the Committee, opposed the communication. It observes, however, that the document communicated does not bring a new element and does not put it in difficulty. Electricite de France persists in its conclusions and states that since the exploratory study is not compulsory and the limits of calculation and validity of the study are clearly specified, the company Cogé de Kerverzet cannot rely on the amount To determine the actual cost of the connection. It considers that it has fulfilled its obligations of transparency, but that its obligations with regard to confidentiality with regard to commercially sensitive information are an obstacle to the disclosure of all the data, Made up of individual consumer and producer values, which make it possible to operate the computing software it uses to determine its technical and financial proposal.
The Commission deliberated On October 30, 2003, after the parties, the rapporteur, the public and the agents of the Energy Regulatory Commission withdrew.
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The facts:
To connect to the Public electricity grid the installation of electricity generation by cogeneration that it plans to build, the company Cogé de Kerverzet asked Electricité de France, manager of the public distribution network, to carry out a study Exploratory, in order to know the price of its connection. Electricité de France acknowledged receipt of this application on 17 April 2003 and carried out an exploratory study consisting of a review of the only transit and tension constraints.
Electricité de France transmitted to the company on 26 May 2003 Cogé de Kerverzet the results of this exploratory study by expressly stating that the encryption of this study (€ 21,300) did not value a connection quotation.
Electricité de France also received, on April 24, 2003, the complement Of the application for connection and acknowledged receipt on 14 May 2003, stating that the technical and financial proposal would be submitted to the producer within three months.
On 30 July 2003, Cogé de Kerverzet sent A letter to Electricité de France stating that it considered that it should have been in possession of the technical and financial proposal since 24 July 2003. She enclosed a cheque corresponding to half the amount of the exploratory study. Electricité de France replied, on 8 August 2003, that the exploratory study did not constitute a quotation and returned the check to its issuer.
On 14 August 2003, Electricité de France submitted a technical and financial proposal to Cogé. De Kerverzet, mentioning a price of EUR 317 762 for the connection of the production facility it plans to build, that is almost 15 times the amount of the exploratory study.
On 5 September 2003, Cogé de Kerverzet a Submitted to the Energy Regulatory Commission a request for a dispute concerning the price so fixed for the connection of its installation.
On the basis of the contradiction:
If Electricité de France submits that The last observations of the company Cogé de Kerverzet were communicated to it in disregard of Article 13 of the rules of procedure of the Commission for the regulation of energy, however, the transmission of those observations having been made By fax on 27 October 2003, Electricité de France had the necessary time to respond, in particular during the public sitting of the Committee, to those observations which, moreover, contained no new elements. It follows that the adversarial principle has not been disregarded.
On the scope of the exploratory study:
It is apparent from the documents in the file that Electricité de France has informed Cogé de Kerverzet on several occasions that the result Of the exploratory study did not engage the distribution network manager. Indeed, reserves of the amount indicated in the exploratory study were also included in the letter of Electricité de France of 17 April 2003, acknowledging receipt of the request for an exploratory study, as in the letter of 26 May 2003, transmitting the Results of this study. These two letters bore, in effect, the reference to " This encryption [...] does not have a connection quote ".
The procedure for processing applications for the connection of decentralised production facilities, published by Electricité de France on its website, states, moreover, explicitly that the result of the exploratory study gives an order of magnitude of the cost of connection and that this document does not bind the network
. France had, therefore, clearly indicated that the amount mentioned in its exploratory study did not commit it, and the company Cogé de Kerverzet cannot support that it was not informed.
On the conditions under which the study was carried out Exploratory:
The letter from Electricité de France of 17 April 2003 specified that the study " Consists solely in the examination of the transit and tension constraints without taking into account the other impacts of the connection of the production site On the network (protection plan, quality ...")" And the letter of 26 May 2003 mentioned that " A quotation can be prepared only after detailed study. "
It is clear, in these circumstances, that Electricité de France had not taken into account, nor studied the power constraints of Short-circuit in its exploratory study, which it does not dispute, moreover, in its written submissions to the Commission for the Regulation of Energy.
Or, Electricité de France states, in its reply to the Committee, that in In November 2001, a new producer had been granted and another producer had increased the power of the facility. In the context of the investigation of those applications, Electricité de France had necessarily carried out, on dates that were not far apart from that at which the request for connection of Cogé de Kerverzet was made, detailed network studies, y
Electricité de France was therefore necessarily aware, on the date of the completion of the exploratory study requested by Cogé de Kerverzet, of the fact that the network was likely to be Insufficiently dimensioned with respect to short circuit power constraints. As a result, Electricité de France had the opportunity to inform the company Cogé de Kerverzet, without the need to carry out a long and complex study, of the problems of short circuit power that could be raised by its connection request. Such information, at this stage, would have undeniably helped the producer to know the constraints on its connection, to evaluate its technical and financial characteristics, and to propose, where appropriate, changes
As a result, by cutting short circuit power constraints that it could not ignore, Electricité de France has established an incomplete exploratory study with regard to the information it provides. Held.
On the delay in the transmission of the technical and financial proposal:
It is apparent from the documents in the file that the company Cogé de Kerverzet transmitted, on 24 April 2003, the documents necessary for the instruction of its application Establishment of a detailed study and a technical and financial proposal. However, in the present case, the fact that Electricité de France acknowledged receipt of that application only on 14 May 2003, although constituting an operating anomaly on the part of the network manager, is nevertheless not the cause of the delay taken For the realization of the company's project. It is clear from the documents in the file that this delay is, in fact, due to the discussions which took place between Electricité de France and Cogé de Kerverzet for the preparation of the technical and financial
. Cogé de Kerverzet cannot, therefore, argue that the technical and financial proposal cannot be taken into account solely because of the delay, for the remaining 20 days, taken by Electricité de France to transmit it.
On the amount The technical and financial proposal:
Electricité de France, as the public distribution network manager, must connect the users by reconciling compliance with the rules governing the operation of the network and respect for the Rules on third party access with a research objective of the best cost, both for the manager and for the third party taking advantage of a right of access. The constraints of short circuit power are part of those which it must analyse, in application of the decree of 13 March 2003 on the general technical requirements for design and operation to be met by the Installations for connection to public distribution networks, and the decree of 17 March 2003 on technical design and operating requirements for connection to a public distribution network of a Installation of electric power generation.
It follows that, when it was seized of the application for connection to the public network of the production facility formulated by the applicant company, Electricité de France, network manager Public of distribution, had the obligation to hear the application, in order to find out which connection constituted the most economical technical solution, both for the network manager and for the applicant. If necessary, this search should be done in collaboration with the applicant of the connection, since the constraints can be lifted, as the case may be, either by modifications on the electricity network or by modifications on The production facility itself.
In addition, pursuant to Article 5 of the Decree of 13 March 2003, which provides that " The connection study is conducted in a transparent and non-discriminatory manner. The general methods and assumptions used are made public by the Public Distribution System Manager. The results are communicated to the user by the network manager, subject to compliance with the confidentiality rules to which he is bound ", the manager of the public distribution network is subject to an obligation of transparency. As such, it must provide the applicant for the connection with the elements enabling it to assess the reasons for the connection to be made under the proposed technical and financial conditions. This obligation is all the more justified because the manager of the public distribution network is in a monopoly position vis-à-vis the network users who want to be connected.
Subsequently, Electricité de France, manager of Public distribution network should have, when it communicated the technical and financial proposal, also provided all the information enabling the company Cogé de Kerverzet to verify that the technical solution proposed to it Was well suited to a research objective of the best cost, and that the work in this study was necessary for the connection of its only facility.
In the absence of pre-publication of the " General methods and Of the hypotheses used ", provided for by the decree of 13 March 2003, Electricité de France, a public distribution network manager, had at least the obligation to transmit all of this information to the applicant for the connection to the Later at the time of the communication of the technical and financial proposal.
If Electricite de France maintains that it has carried out the study of alternative solutions, it is clear from the documents in the file that it has not provided the information required for The company Cogé de Kerverzet or when sending the technical and financial proposal on 14 August 2003, or when the company Cogé de Kerverzet requested it by fax on 19 August 2003, then by mail on 30 August.
The fact That Electricité de France, the manager of the public distribution network, be held confidential with regard to commercially sensitive information, pursuant to Article 20 of the Law of 10 February 2000, cannot drive it, contrary to the What he supports in the session, to refuse any information on how the result of the study was obtained. Such a practice would, in fact, deprive the substance of its obligation to be transparent, whereas, for example, the modelling of the network necessary for the study in question can be presented, where appropriate, with aggregated elements and, if necessary, The results of the study of the short circuit powers or the cost data of the equipment that Electricite de France must put in place to connect the applicant cannot be regarded as information
Electricité de France has therefore not complied with its obligation of transparency with respect to the applicant for connection to the public distribution network.
In its written submissions to the Commission Regulation of energy in the context of this dispute settlement, Electricité de France does not provide any evidence to verify that the technical and financial proposal established by its care is the most economical solution and that The work carried out by Cogé de Kerverzet corresponds well to the connection of its only production facility. It has not, however, made any reference in these entries to difficulties, in order to ensure the transparency to which it is bound by the texts, holding the risk of disclosure of commercially sensitive information.
Electricité de France not having Thus still not justified the validity of the technical solution chosen or the cost due to the constraints of short circuit power, the position " Adaptation work of the HTA network ", motivated by these constraints, which amounts to € 289,378 (excluding taxes) In the technical and financial proposal drawn up by Electricité de France, cannot, therefore, be validly held by the Commission for the regulation of energy.
On the claim for compensation for damage:
Cogé de Kerverzet asks the Energy Regulatory Commission to fix the amount of compensation for the damage which it considers to have suffered as a result of the difference between the amount of the exploratory study and the amount of the technical proposal and
conclusions submitted in the alternative, in any event, have become moot, since this Decision fixes the cost of the connection to an amount of the same order of Size as expected in the Exploratory Study,
Decides:
Technical and financial proposal amount Established by Electricité de France, manager of the public distribution network, is reduced by the sum of € 289,378 (excluding taxes) corresponding to the post " HTA network adaptation jobs ".
The remainder of the conclusions of Kerverzet's Cogé Company is rejected.
This decision will be notified to Cogé de Kerverzet and Electricité de France and will be published in the Official Journal of the French Republic.
Done at Paris, October 30, 2003.
For the Commission:
The President,
J. Syrota
