Exclusively used network elements: German Federal Court of Justice allows reimbursement claim for network fees

The German Federal Court of Justice (BGH) has ruled that network users connected to a higher network level via “exclusively used network elements” have a claim to a network fee which is lower than the general network fee for their connection level, and that this claim may also be backdated for several years.

The BGH accordingly affirmed a reimbursement claim against the network operator if the network operator has not actively offered the network user a reduced network fee in the past. The legal basis for this claim is Sec. 19 (3) of the German Electricity Network Fees Regulation (Stromnetzentgeltverordnung - StromNEV).

How do I find out whether my company could benefit from this decision?

If your company has entered into an “agreement on an individual fee pursuant to Sec. 19 (3) StromNEV” or a corresponding supplemental agreement to the network usage agreement with the network operator, your company could be entitled to a reimbursement. In this case, it needs to be reviewed since when the agreement has applied and whether your company was already connected to the network with exclusively used network elements before this agreement came into existence. If this is the case, your company is entitled to a reimbursement.

You can also check how the connection situation is described in your company’s network usage agreement with the network operator and whether there is any reference in this respect to exclusively used network elements. If you are aware that your company is, for example, connected to the busbar of a substation, we recommend that you contact the network operator to specifically inquire about the connection situation.

When does this reimbursement claim become statute-barred?

A reimbursement claim becomes statute-barred after only three years. However, the limitation period does not begin until the end of the calendar year in which the network user obtains knowledge of this or could simply have found out that the connection to a higher network level was via exclusively used network elements. Normally, however, only the network operator and not the network user has this information. The limitation period has therefore not yet started in the majority of cases, unless the network operator has informed the network user in the past about the connection situation, for example during negotiations on the conclusion of an agreement on an individual fee pursuant to Sec. 19 (3) StromNEV.