ElWG Check: simplified electricity marketing

Authors: Johannes Hartlieb, Caroline Weiß

The energy transition depends on feeding as much green electricity as possible into the grids. However, it’s not just the power grid that poses a hurdle; feeding electricity into the grid is often challenging from a regulatory perspective as well. Simply put, producers are unable to sell their green electricity, even though buyers are available. The Electricity Industry Act (ElWG) is intended to provide significant relief.

Problem: no electricity feed-in via third metering point

In the case of generation plants that feed surplus electricity into the grid (i.e., only the electricity that is not needed is fed in), the issue of assigning the feed-in metering point and the associated utilization of surplus electricity regularly arises. To whom may the surplus electricity be allocated, and by whom may it be utilized? The current hurdles to surplus feed-in – though often circumventable – are set to be eased in the future.

Legal status quo

A plant operator (contractor) currently wants to finance, construct, and operate a photovoltaic system on the premises of an electricity consumer (contracting party), so that the contracting party can use the generated electricity for its commercial operations. The surplus electricity is to be utilized by the contractor themselves, and they wish to feed this surplus electricity into the public grid via the contracting party’s metering point.

This has not been permitted until now: With the decision of the Regulatory Commission (REK) of E-Control dated March 4th, 2020, R STR 05/19, it was clarified that feed-in via a third-party metering point is prohibited. The distribution system operator may refuse the feed-in of surplus electricity if the holder of the metering point is not also the legal operator of the generation plant. The producer must feed the surplus electricity into the public grid via their own metering point. There is no right to “grid access for third parties.”

The admissibility of (surplus) feed-in also requires that the operator of the generation plant and the party entitled to grid access be the same person. Since the third party (contractor) cannot feed electricity into the grid due to not having their own grid connection, and since an indirect connection via an existing grid connection (of the contracting party) would undermine the distribution system operator’s connection monopoly, solutions can currently only be found through civil-law contractual arrangements. As an example, the lease-contracting model may be mentioned here: In this model, the contractor leases the generation plant to the contracting party in return for payment. The contracting party operates the generation plant in its own name and under its own responsibility, uses the electricity generated for its own needs, and can feed surplus electricity into the public grid via its metering point.

Status Quo post ElWG

With the new ElWG – through the expansion of the scope of application for direct lines – the surplus feed-in by third parties with the possibility of assigning the feed-in metering point to a third party is to be legally secured under electricity law. This gives the contractor the option of using the contracting party’s metering point for the utilization of surplus electricity. Upon request of the grid user (electricity consumer or contracting party), one metering point can be assigned for each direction of energy flow. The feed-in metering point can then be assigned to a third party (contractor) who operates the power generation plant.

The special features arising from operation with two metering points – which are assigned to a single measurement device – are to be contractually regulated with the (distribution) system operator. The operator of the consumption facility (electricity consumer or contracting party) is considered a self-supplier. The electricity consumer (contracting party) is, however, responsible to the (distribution) system operator for compliance with the legal and contractual provisions at the network connection point, also regarding the power generation plant operated by a third party (contractor). In this context, the contracting party is therefore also liable to the (distribution) system operator for the plant operator (contractor) concerning compliance with the legal and contractual provisions. In this constellation, the contracting party remains the contractual partner of the (distribution) system operator with regard to grid connection and grid access. If the contracting party fails to fulfill its responsibilities, the generation plant may be shut down, for example.

For many contracts concluded to date, it will likely be necessary to amend the previously chosen civil-law structures (e.g., “lease contracting”) once the ElWG comes into force. Some of the (already or now) concluded civil law contracts already contain corresponding clauses that provide for a contractual switch to a surplus feed-in by the third party. In this context, however, the internal agreement should also address the self-supplier’s right to issue instructions and the responsibility or liability towards the (distribution) system operator for the power generation plant.

Conclusion

Die vorgesehene Erleichterung bei der Überschusseinspeisung durch Dritte ist zu begrüßen. Die Möglichkeit, einen Zählpunkt je Energieflussrichtung zu vergeben und den Einspeisezählpunkt einem Dritten zuzuordnen, schafft mehr Flexibilität und erleichtert die Vermarktung des Überschussstroms.

With regard to the civil law right of the self-supplier to issue instructions to the plant operator and the internal responsibility and liability for the power generation plant, clear arrangements should be made between the contracting parties.

Disclaimer

This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.