OGH: Claim for payment by electricity producer in event of bottlenecks
In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) addressed, among other things, a producer's claim for payment in case of measures against power bottlenecks ordered by control area managers.
The defendant is a control area manager within the meaning of Section 7 para. 1 no. 60 of the Electricity Industry and Organisation Act (Elektrizitätswirtschafts- und –organisationsgesetz, ElWOG 2010), the plaintiff an electricity producer. The defendant instructed a company that aligns the distribution network to reduce the electricity fed into the grid. This company in turn passed on the power reduction to the plaintiff, who carried out the ordered power reduction and suffered a generation loss as a result. There is no contractual relationship between the plaintiff and the defendant. The plaintiff now claimed compensation for the loss of earnings suffered pursuant to Sec. 23 para. 9 ElWOG 2010.
The court of first instance granted the claim. It was irrelevant that the defendant had not addressed the instruction directly to the plaintiff, but to the distribution network operators. The Court of Appeal shared the opinion of the court of first instance.
The OGH reasoned:
The relationship between Sec. 23 para. 2 no. 5 ElWOG 2010 and Sec. 23 para. 9 ElWOG 2010 is that para. 9 is a catch-all provision. If there are no contracts with the producers in the event of a power bottleneck, the control area manager may also unilaterally order measures for such bottlenecks. In the case of para. 9, a determination of an appropriate fee for the producer is then also provided for. The applicability of Sec. 23 para. 9 ElWOG 2010 does not necessarily require that the control area manager addresses the order directly to the producer and issues it directly to him. The communication of the content of the order and its simultaneous specification by the distribution network operator is also an order under Sec. 23 para. 9 ElWOG 2010. If the applicability of Sec. 23 para. 9 ElWOG 2010 required direct addressing to the producer, no measures could be taken if no contact details were available - as is the case here. Therefore, only the control area manager has the right to file a claim for compensation. Sec. 23 para. 9 ElWOG 2010 therefore does not require that the orders were issued directly by the control area manager.
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