BBH versus federal network agency: Success for industrial sites in terms of individual grid charges

BBH successfully argued before the Higher Regional Court of Düsseldorf in favour of final consumers on industrial sites which “only” purchase process heat. The court ruled that they are to be treated in the same way as final consumers directly purchasing gas and are thus also eligible for individual grid charges in 2022.

Intensive grid users and grid operators can agree on individual grid charges in accordance with sec. 19 subs. 2 sentences 2 to 4 Electricity Grid Charges Ordinance (StromNEV). Such agreements are conditional on a grid usage behaviour that eases the burden on the grid, which is typical for energy-intensive companies purchasing energy on an ongoing basis. In view of the impending gas shortage in 2022, industrial companies were asked to reduce their gas purchases. The corresponding decrease in production also led to a change in the grid usage behaviour of these companies; they ran the risk of losing the reduction in grid charges as provided for in sec. 19 subs. 2 sentences 2 to 4 Electricity Grid Charges Ordinance (StromNEV). In order to avoid the resulting additional cost burden, the Federal Network Agency (BNetzA) issued the BK4-22-086 determination, but restricted its scope of application to the reduction in a company's gas procurement. This did not relieve the cost burden on companies whose change in grid usage behaviour was “only” due to the reduction of process heat generated from gas, which is usually the case at industrial sites – where one of the companies purchases gas, converts it into process heat and distributes it to the other companies located on the site.

BBH partner, lawyer Dr. Thies Christian Hartmann, as well as lawyers Rosalie Wilde and Julia Voigt regarded the exclusion of the indirect gas reduction from the intended scope of the Federal Network Agency’s determination to be unlawful. They recommended a complaint against the Agency. 

BBH partner, lawyer Dr. Hartmann: “This unequal treatment was not acceptable. Where energy is procured in bundles and the generation of process heat is part of the industrial park operator’s service portfolio, the exclusion of any indirect reduction in gas purchases is not appropriate. If the company on site reduces its steam purchases, there is a reduction in the gas used by the upstream service provider. Had this “indirect” reduction been excluded, the goal of saving gas would not have been achievable in many cases.” 

In the hearing before the Higher Regional Court of Düsseldorf, the Court signalled that it would follow BBH’s opinion. The Federal Network Agency then issued a statement for the (public) record stating that a reduction in process heat which led to a corresponding reduction in the use of gas in a (combined heat and power) installation belonging to the industrial park constitutes a case within the meaning of determination BK4-22-086. With this clarification, both industrial companies that lodged the complaint are entitled to claim reduced individual grid charges for 2022. 

The BBH group is a leading provider of advisory services for energy and infrastructure companies and their customers. Energy and supply companies, particularly public utilities, municipalities and local authorities, industrial companies and international groups are among its core clients. The BBH group advises these and many other companies and organisations in all legal matters and also assists them with business and strategic advice.

Prof. Dr. Ines Zenke
Rechtsanwältin/Lawyer, Partner
Phone +49 (0)30 611 28 40-179

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