On May 27, the Cartel Senate of the Federal Court of Justice will hear the question of whether the operator of an electricity supply grid may demand a construction cost subsidy for the grid connection of a battery storage system. This was announced by the Federal Court of Justice.
The plaintiff operates battery storage facilities nationwide. The other party involved is the operator of an electricity distribution grid. In May 2021, the applicant applied to the other party for the grid connection of a battery storage system with a maximum charging and discharging capacity of 1,725 kilowatts and a storage capacity of 3,450 kilowatt hours. The battery storage system is to be installed and operated as a purely grid-connected storage system. Consumption of the temporarily stored energy on site was not planned. The other party allocated a grid connection point to the applicant and demanded payment of a construction cost subsidy. It calculated the amount of this on the basis of the position paper of the Federal Network Agency on the charging of construction cost subsidies in grid levels above low voltage according to the so-called performance price model. In an application dated June 20, 2022, the applicant applied to the Federal Network Agency to prohibit the other party from claiming a construction cost subsidy on the merits and, alternatively, in the calculated amount in accordance with Section 31 EnWG. The Federal Network Agency rejected the application in a decision dated December 6, 2022.
Upon the applicant’s appeal, the Court of Appeal annulled the decision of the Federal Network Agency in a ruling dated December 20, 2023 and obliged it to reassess the application. It assumed that the construction cost subsidy determined according to the performance price model was discriminatory and in breach of Section 17 (1) sentence 1 EnWG. There was an unjustified equal treatment of unequal circumstances.
In the case of the battery storage system in question, a significant difference to the standard case of a grid connection subject to a construction cost subsidy for electricity withdrawal is that the agreed connection capacity cannot be used continuously for storage, but only with a time delay after the stored electricity has been (re-)fed into the grid in the meantime. The “feed-in side” must also be taken into account. In the present case, the construction cost subsidy does not have a significantly different effect than a construction cost subsidy on the “feed-in side”, which has so far been expressly excluded by law in many areas and is at least not common in practice.
The Federal Network Agency is challenging this assessment with the appeal on points of law allowed by the Court of Appeal.
© PHOTON
