Grid access fees for renewables

In Austria, some grid operators have adopted the ‘double’ practice of charging grid access fees when renewable generation plants such as photovoltaic systems are additionally installed. A case that became known in the media over the summer (we reported on it in our Tax & Legal Breaking News Nr 8/2024, 31.07.2024) has now seriously undermined this practice. The Austrian Supreme Court of Justice (OGH) is now providing clarity.

The decision

As a reminder: Vienna Airport was supposed to pay a Vienna grid operator additional (double) grid access fees due to the installation of further photovoltaic systems on the airport premises (reason: the airport is no longer only an electricity consumer, but also a producer and supplier), although the installation of the further photovoltaic systems did not result in an initial new grid connection and also did not increase the existing grid connection. The airport refused to pay, and the Vienna grid operator took legal action. The lower courts confirmed the airport's view, which is why the Vienna grid operator appealed at the Austrian OGH

In its decision 1 Ob 85/24t of 25 September 2024, the Austrian OGH rejected the appeal of the Vienna network operator. In summary, the following main reasons were given:

• The grid costs resulting from the input of renewable energies are (both before and after the Renewable Energy Expansion Package) already covered by the grid provision charges and the grid usage charges.
• According to the law, only the consumers, but not the suppliers, are obliged to pay the costs incurred by the grid operators as a result of the increased numbers of renewable energy generation plants being connected. This is how the general public ‘promotes’ the energy transition.
• Even after the Renewable Energy Expansion Package, the legislator continued to insist that the grid access fee under Para 54 ElWOG only applies if a new grid connection has to be established or an existing grid connection has to be expanded in respect of its capacity. This was not changed by the introduction of the flat-rate fees for renewable energy generation plants (term ‘only if the conditions are met’)
• In this context, the OGH also states that the flat-rate only applies to the amount of the feed-in tariff, but not to the basis of the entitlement. It was not the intention of the legislator with the Renewable Energy Expansion Package to put renewable generation plants at a disadvantage compared to fossil fuel generation plants (the meaning would have to be assumed on the basis of the plaintiff's statements).
• If the conditions for the flat-rate grid admission fee are met, only the difference in the capacity agreed previously is to be paid for an existing connection (keyword: principle of cost orientation).

The effects

This decision of the OGH has now made it clear that double billing of grid access fees is not permissible if no new connection is established, or the existing connection capacity is not increased.

Legal tip

Those affected can now use civil law to defend themselves against or reclaim double billing of grid access fees based on Para 54 ElWOG. This is possible within three years of payment of the double grid access fees. In the event of the impending onset of the statute of limitations, the respective grid operator may be able to remedy the situation by issuing a waiver of the statute of limitations, thus allowing time to find an out-of-court solution.