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Anwendung Hybridanlage

Energy transition privileges for hybrid systems


“Energy transition privileges” can now be found everywhere in the legal system: one might think of permit exemptions for PV plants or easier grid connection for smaller green power plants. Green energy subsidies can also be placed in this category.

The recently published Opinion of Advocate General Rantos in Case C-580/21 (“EEW vs MNG”) also emphasizes a certain openness to technology with regard to the application of energy transition privileges to so-called hybrid plants. The underlying regulatory framework here is the Renewable Energy Directive or special connection and payment privileges for green power plants in the German implementation laws. At the heart of the decision is the question of whether the privileges should only apply to plants that exclusively use renewable energy sources.

Initial situation and reference question

The present request for a preliminary ruling is made as part of a legal dispute between EEW Energy from Waste Großräschen GmbH as electricity producer and MNG Mitteldeutsche Netzgesellschaft Strom GmbH as grid operator. While the former operates a thermal waste utilization plant with which it generates electricity and heat from industrial and household waste that is mixed before incineration and contains a biodegradable portion, the latter is the responsible transmission system operator. EEW is seeking compensation from MNG as a result of the reduction in its contracted electricity feed-in due to grid bottlenecks.

The legal background is that the “old” version of the Renewable Energy Directive provided for priority grid access for generating plants that use renewable energy sources. The EWW plant does not solely use renewable energy sources, but the waste – to be thermally recycled – contains a variable portion of biodegradable waste from industry and households, which is why the question arises whether priority grid access must not only be granted to plants that generate electricity exclusively from renewable energy sources, but also to those whose electricity is generated by the thermal treatment of mixed waste containing a portion of biodegradable waste from industry and households.

(Preliminary) findings

In his Opinion, the Advocate General essentially comes to the following conclusions:

  • The fact that electricity is partly generated from non-biodegradable industrial and domestic waste in a waste incineration plant does not in principle preclude the right of the operator of the generation plant to priority grid access.
  • There is no “minimum proportion” of renewable energy sources used or any “materiality threshold” for the question of the existence of priority grid access. However, priority grid access only exists to the extent that electricity is generated from the biodegradable portion of the industrial and domestic waste used, because only such waste is considered “renewable” under the Renewable Energy Directive.
  • It is up to the Member States to establish transparent and non-discriminatory criteria for determining the modalities for applying priority access to a generation facility with both renewable and non-renewable shares. In this respect, the technical and temporal modalities of the production of “green energy” will have to be taken into account on a case-by-case basis.
  • Priority grid access for such hybrid plants only exists if the secure operation of the national electricity system allows this.

Implications

The Opinion in Case C-580/21 shows that the application of energy transition privileges to hybrid plants (plants with both renewable and non-renewable components) is necessary. A blanket refusal of priority grid access on the grounds that the generation plant concerned also produces electricity from non-renewable energy sources is therefore not possible. The right to priority access to the grid is limited by the need to ensure the security of the national electricity system; the assessment of these security requirements is naturally in the hands of the transmission and distribution system operators.

If you have any further questions, please do not hesitate to contact Johannes Hartlieb and Emil Nigmatullin, members of the 360°ee team.

 

29. November 2022

 
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