The Higher Administrative Court recently found that the operation of an electric filling station does not constitute the operation of an electricity company and is thus subject to Trade Act. Prior to this decision, the question of whether the act applies to such stations was unclear, as there was no relevant case law and the legal literature was divergent.
The information assessed when preparing the latest Flexibility and Storage Market Report on the Austrian gas market suggests that the current competitive situation does not require regulated access to storage facilities. The sufficient availability of storage capacity, customer-oriented product development, market-oriented price formation and offered quantities form a market characterised by competitive pressure.
The Austrian regulatory authority E-Control is responsible for ensuring an equal energy market and a fair market price. Each year E-Control reviews and defines the system charges for the use of electricity and gas networks on all network levels. The System Charges Ordinance 2019 and the Gas System Charges Ordinance 2019 bring further relief to system charges.
The national regulatory authority E-Control recently published its consultation document on the implementation of the network code on harmonised transmission tariff structures in Austria. The document is structured in line with the Agency for the Cooperation of Energy Regulators consultation template. However, it appears that E-Control paid little attention to maximum transparency and traceability when setting transmission tariffs.
In order to ensure that gas supplies are secure and to achieve a high level of capacity availability, the Gas Act requires the market area manager (MAM) to prepare an annual coordinated network development plan. The MAM recently submitted a draft version of the 2018 plan to E-Control. The latest plan ensures that, among other things, the supply of gas to end consumers is protected, the line capacity is considered and transport requirements are met.
The proposed new Location Development Act aims to regulate a special selection procedure for individual, location-relevant projects (eg, electricity grids and power plants). While the economy rejoices over faster legal security, non-governmental organisations and lawyers have expressed doubts about the maintenance of the standard of other material laws and the legal admissibility of the government project.
To comply with the applicable EU regulations, E-Control recently published draft amendments to the Gas System Charges Ordinance 2018 and the Gas Market Model Ordinance. In response to international criticism, E-Control also proposed a redesign of the Austrian gas balancing system. In order to implement these amendments in the current Austrian gas market, a proposal to establish a virtual interconnection point at Baumgarten has also been drafted.
The new government recently presented its government programme, which sets out its framework and indicates the legislative projects that it intends to implement over the coming five years. As part of the programme, the government hopes to have 100% of the national electricity supply come from renewable sources by 2030. However, as there are no details on how this goal will be achieved, it remains to be seen what changes the energy sector will face.
E-Control recently published a draft of the amendment of the Gas Market Model Ordinance 2017. The envisaged amendment – and especially the newly implemented capacity conversion service – resolves the capacity mismatch issue by compensating network users for the economic disadvantages that arise from having to buy double capacity due to the bundling regime at interconnection points.
After four months of negotiations, the Austrian National Council has finally reached an agreement on the amendment of the Green Electricity Act. The required two-thirds majority was reached by a last-minute agreement between the coalition parties and the Green Party. The aim of the new legislation is to increase the percentage of green electricity and expand renewable energy in Austria.
Following an Agency for the Cooperation of Energy Regulators decision which foresees a split of the Austrian-German electricity market, the Austrian National Regulatory Authority, E-Control and the Austrian transmission system operators have announced that they plan to exhaust all legal possibilities in order to appeal the decision.
Although the long-awaited proposal to amend the Green Electricity Act was recently published, those who expected it to expand renewable energy in Austria will be disappointed and must patiently await the envisaged expansive amendment to the act. That said, the amendment package has brought some hope for new investments.
E-Control recently announced the next methodology for determining costs for gas transmission system operators (TSOs), which will apply until December 31 2020. The methodology is based on the incentives stipulated for the second regulation period for gas. It applies the calculation of TSOs' allowed costs and their volume production and comprises framework conditions for all entry and exit points, as well as interconnection points of the TSOs transmission lines.
The Federal Administrative Court recently ruled that the Koralm pumped storage hydroelectric power plant fulfils the legal prerequisites for a hydroelectric power plant and thus requires an environmental impact assessment. However, the court granted an appeal because no clear decision exists on whether a project that uses water in a closed pumping system to produce electricity falls under Appendix 1(30) of the Environmental Impact Assessment Act.
The Gas Market Model Ordinance plays a major role in the Austrian gas market, as it regulates network access and the capacity management and balancing system. The ordinance is in the process of being amended in order to establish more nuanced requirements and options in relation to the calculation of residual loads, the merit order list, balancing energy requirements and cross-border interconnection points.
The Federal Administrative Court recently deemed the constitutional right granting the federal minister of science, research and economy certain information rights regarding Austria's National Regulatory Authority to be inconsistent with EU law. If the Supreme Administrative Court finds that Section 5(3) of the Energy Control Act does not comply with the independence requirements, pending network cost decisions which have been referred to the court will likely be revoked.
Following the implementation of the Federal Energy Efficiency Act, energy suppliers must take energy efficiency measures amounting to at least 0.6% of their total energy supply to domestic end customers in the previous year. If a supplier cannot reach the savings target, it may buy its way out by approaching its own customers, approaching outside end customers, shopping for efficiency measure trading platforms or purchasing measures from measure traders.
The minister for science, research and economy recently released an ordinance enacting specifications for the accountability of energy efficiency measures. The ordinance derogated an earlier method document which provided for an interim method to evaluate energy efficiency measures but left a series of legal uncertainties. The ordinance will help energy suppliers to reach their saving targets in the most economically favourable way.
The draft Energy Infrastructure Act contains relevant rules of procedure in relation to the country's obligation to meet EU regulations regarding the development and modernisation of a trans-European energy infrastructure. However, apart from a new concept of construction bans, the draft contains no substantial novelties. Therefore, it remains to be seen whether the changes will actually expedite proceedings.
In a recent case, the Ministry of Economy authorised a crude oil exploration company to undertake exploratory drilling for natural gas and mineral oil within an Austrian municipality. The municipality challenged the authorisation on the grounds that the exploratory drilling was subject to an environmental impact assessment. The Supreme Administrative Court referred the matter to the European Court of Justice for a preliminary ruling.