Sector interlinking is an essential cornerstone of the energy revolution in order to develop the different flexibilities of the sectors electricity, gas, heating and transport. In this area, which has a large number of new business areas to offer, the interfaces between the different sectors, which follow very different legal frameworks, are particularly important. Applications for sector interlinking include power-to-gas (PtG), power-to-heat (PtH) and power-to-liquid (PtL).

Through the consistent implementation of sector interlinking and the use of energy storage facilities, especially fluctuating renewable energies, such as solar and wind energy, can be converted into another form of energy and would not have to be regulated. This regulations may be due to grid conditions or negative electricity prices on the electricity market, for example. In these cases, the entitlement of support by the Renewable Energy Sources Act (EEG) is ceased under certain conditions.

The change from one sector to another – e. g. from electricity to heat – can raise various legal questions, starting with the connection to the grid, the generation of taxes and state induced levies (EEG levy, electricity tax, offshore liability levy, KWKG levy, levy according to § 18 para. 2 AbLaV, levy according to § 19 para. 2 StromNEV, licence fees etc. ). Furthermore, exemptions, e. g. from network charges and the respective levies, must always be examined in order to be able to make a long-term investment in such a project sustainable.

The individual delivery relations must also be clearly depicted. Thus straight the heat source, which feeds e. g. into a district heating network, might have the consequence that the district heating supplier with its final customers would have to adapt the price adjustment clause after § 24 AVBFernwärmeV, since market and cost element to the past heat supply change. In order that the EEG levy can also be reduced by way of self-supply, it must also be ensured in particular that the electricity generator and the electricity consumer are identical, i. e. the electric boiler or the heat pump must be operated by the same natural or legal person.

In addition to regulatory issues arising from the various legal regimes, one of our main tasks is the drafting of long-term supply contracts. But also land use contracts for the laying of pipelines – both on private and public properties, the agreement of cooperation contracts and the consultation of joint ventures are further fundamental activities of our lawyers. We are happy to advise project planners, financers, energy supply companies, operators of district heating and electricity networks, contractors, heat suppliers, plant operators, property owners and end users.

Please do not hesitate to contact us if you have any questions regarding this promising business field.

News

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| Co-generating

BGH about the right to amend price adjustment clauses in district heating contracts

On 23rd of April, the BGH heard a review of the ruling of the OLG Frankfurt am Main of 21st March 2019. The main hearing will take place on 3rd March 2019. OLG Frankfurt had affirmed that district heating utilities had infringed the UWG because they had informed their customers in a customer’s letter of a change in the price adjustment clauses. In the opinion of OLG Frankfurt a. M. was not allowed to change unilaterally the price adjustment clauses on the basis of AVBFernwärmeV and the customer’s letter was therefore misleading. The BGH annulled this ruling of the OLG Frankfurt and ruled that there was no infringement of the UWG. The district heating provider did not mislead its customers by giving false facts, but merely expressed its legal view, which was admissible. However, the BGH did not clarify the actual question of whether district heating utilities are entitled to unilaterally change their price adjustment clauses by means of public announcement.
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| Co-generating

Common objective market within the meaning of the GWB for district heating and contracting

The Higher Regional Court of Rostock (OLG Rostock) ruled in a judgment of 5 July 1994. March 2019 on the nullity of a district heating supply contract on the basis of § 1 GWB i. V. m. § 134 BGB, which has been living between the heat supplier and the customer for several years. The Court of First Instance is of the opinion that, although supplying large customers with district heating or through heat contracting, it is a common product market. However, since in the specific case there was no impediment to the market, a nullity of the heat supply contract was not to be assumed. In addition, a ten-year contract term in view of the possible maturity agreement according to § 32 para. 1 AVBFernwärmeV does not contradict § 1 GWB, even in combination with a minimum purchase quantity. (OLG Rostock, Dec.. of. 5.3.2020 - Case No. : 16 U 1/18)
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Patrizia Zorn
Phone +49 (0)30 20 188 328
Email zorn@brahms-kollegen.de

Patricia Zorn

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