OGH on Photovoltaic Systems and Grid Access Fees

Nov 15, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled on the question of whether a grid access fee must be paid when a power generation system is connected to an existing grid already in use by the customer.

In the case at hand, the applicant is a distribution system operator pursuant to Section 7(1)(76) of the Austrian Electricity Industry and Organisation Act 2010 (Elektrizitätswirtschafts- und -organisationsgesetz 2010, hereinafter EIWOG). The defendant operates a business and has already installed two photovoltaic systems with a total output of approximately 16,000 kW on its premises and hooked them up to an existing grid in use by the defendant.

The plaintiff demanded that the defendant pay a grid access fee for the newly connected photovoltaic systems. The defendant argued that the plaintiff had not incurred any grid hook-up costs as a result of the construction and commissioning of the photovoltaic systems.

The lower courts rejected the claim. The OGH, however, upheld this decision and clarified the following:

In general, the feed-in of electrical energy results in additional costs at the grid level, in particular for the creation of the necessary grid capacities for the additionally fed-in electricity. However, lawmakers have decided that these costs should not be borne (pro rata) by the respective electricity feeders, but by the electricity consumers (via grid provision and usage charges).

Grid access within the meaning of Section 54(1) ElWOG does not exist if a power generation plant covered by the existing capacity of the grid connection is connected to a grid connection point already used by a grid customer for the purpose of electricity procurement. In this case, even if the system is a renewable energy system on grid levels 3 to 7 as defined in Section 54(3) ElWOG, no grid access fee is payable. The recent Austrian Renewable Energy Sources Act does not provide for any changes to this.

OGH 1 Ob 85/24t (25 September 2024)