[:en]Great day in the energy sector

Wednesday, June 22, 2016 was one of the energy sector. Hundreds of people doing business in the energy industry eagerly awaited decision of the Constitutional Court on the unconstitutionality of payment for access to the distribution system, known as the G-component. This payment was introduced a regulatory amended, Regulation Office for Network Industries.

G-components for two and a half years, the load of all electricity producers connected to the distribution system. For equipment with an installed capacity of 1 MW, the annual amount of the payment varies from 17 000 EUR to 21 000 EUR. Together this amounts to several tens of millions per year.

landmark decision

The judges advised nearly an hour. Tensions grew and everyone in the courtroom of the Constitutional Court in Košice eagerly awaited verdict-terminated. They were quickly followed. The Plenum of the Constitutional Court decided that payment for access to the distribution system, as has been established by the Office for Regulation of Network Industries, is contrary to the Constitution and the European Convention and therefore never be a part of our legal poriadku.1

As the Court based its decision

The Constitutional Court found that the Regulatory Office for Network Industries in implementing the payments violate the Constitution and laws as „not take place to the extent and in the manner determined by law“ and „did not proceed on the basis of laws and within their limits.“

The Constitutional Court pointed out that the law has failed to Regulatory Office for Network Industries to issue a generally binding regulation that the Authority would be authorized to establish the obligation of electricity producers to pay a fee for access to the distribution system if they do not have a contract on access to distribution systems. According to the Constitutional Court, the obligation to make a payment for access to the distribution system and in cases where producers have concluded an agreement on access goes beyond legal obligations.

In this context, the Constitutional Court emphasized that the obligation to pay and payment for access to the distribution system can arise only by virtue of the approach. According to the Constitutional Court is the conclusion of the access rights of producers, not his obligation.

Implications for the Regulatory Office for Network Industries

The publication date of the decision of the Constitutional Court in the collection zákonov2 question part of § 26 paragraph. 23 decree expires and therefore has no legal effect and can not be applied. The Office is obliged by law to give public notice in accordance with the Constitution within 6 months, while being bound by the legal opinion of the Constitutional Court.

Notes that, in accordance with the opinion of the Constitutional Court of the Regulatory Office for Network Industries obliged to proceed with the preparation of the new decree.

Regulatory Office for Network Industries can not, without lawful authority from introducing new duties or charges, and hiding them under a different name. In the context of price regulation, the Authority may regulate the prices for the goods or services provided. G-component therefore may require only from those manufacturers who freely choose to enter into a contract on access to distribution systems.

To pay or not to pay?

Wednesday from most manufacturers is facing a crucial question: to pay or not to pay the g-component? It is in these days because many manufacturers are coming invoices for g-components.

For producers who have not entered into with the operator of the regional distribution system contract on access to distribution system, the situation is quite clear. According to the Constitutional Court, the G-component in the case of unconstitutional and never against them he should not be introduced. Such producers by regional distribution system operator has the G-component not billed. In the event that bill came to them and, according to our legal opinion is not required to pay such invoice.

The situation is more complicated for those producers who contract on access to distribution system concluded. Here we suggest to consider each case individually and consider the possibility of terminating the contract or a declaration of invalidity. Here again what the Constitutional Court said that the contract on access to distribution systems is a right, not an obligation of the manufacturer elektriny.3

legal dilemma

Constitutional Court decision no doubt there is a serious interference with the existing law and legal relations. Such interference can be compared to changing the rules during the game. Some may require as a result of changes to the rules nullify the results of the game from the beginning. Others may argue that past game results should be maintained and for a new would be to play from the moment of policy changes.

Even if the decision of the Constitutional Court are emerging views according to which the decision applies only to the situation after its release. These views are based on the principle of legal certainty, which includes non-retroactivity (reverse action).

However, it is fair that they can not be remedied lawlessness caused by the unconstitutional legislation? It is permissible for protection of one principle prevented the affected bodies crave what they have been wrongly denied in the past?

To these questions it gives a very clear answer to the plenum of the Constitutional Court. In its unifying opinion (PLZ ÚS 1/06), the Constitutional Court ruled that its decisions have ex tunc and thus apply retrospectively to situations that arose prior to issue. That conclusion Constitutional Court relies on the principle of constitutionality.

In its opinion, the Constitutional Court stressed that in case of conflict between the principle of legal certainty and the principle of constitutionality is clearly preferred the principle of constitutionality. According to the Constitutional Court decision on the effects of non-compliance of legislation with the Constitution arise ex tunc, ie retrospectively. A contrary interpretation would be a direct negation of the principle of conservation of constitutionality and also inadmissible as absolute principle of legal certainty.

Suing or sued?

Electricity producer with a regional distribution system operator have concluded an agreement on access to the distribution system should be accessible to the regional distribution system operator has paid payments returned. Therefore, we recommend the regional distribution system letter of formal notice on their return.

If the call remained unanswered, electricity producers may claim refund of their money through the courts.

For those electricity producers who have concluded a contract, we are recommended to carefully assess if there are relevant reasons to terminate the contract or declaration of invalidity of the contract, and these producers can demand the return of their money.

Pavol Polacek, lawyer
Counsel 45 MPs in the proceedings before the Constitutional Court SR[:]