Quantitative compensation of prosumers, in stand-by; President Iohannis sent the law back to Parliament

The prosumers still have to wait until they benefit from quantitative compensation regarding the electricity produced from renewable sources and introduced into the transmission and distribution networks in the country, because the President Klaus Iohannis did not promulgate the draft law adopted by the Parliament, but decided to resubmit to the Legislature, citing the fact that suppliers are not treated fairly compared to prosumers, even if the two categories are active actors of the energy market in our country.

We mention that the law adopted by the Parliament brings a series of changes to the legal regime applicable to prosumers by distinguishing between the prosumer legal person and the prosumer natural person. The changes made also concern a series of rules that regulate their activity, such as increasing the installed power limit for which quantitative compensation can be requested to 400 kilowatts, introducing, in the prosumer definition, the possibility to store energy, to sell energy directly to another consumer connected directly to the production facility and to compensate the energy produced in excess with that consumed at another point of consumption, if it is with the same supplier and the same distribution operator. At the same time, the normative act orders the increase to 900 kilowatts of the installed power limit of the prosumer plant, up to which it does not pay for the imbalances caused in the network.

In the request addressed to the Parliament, President Klaus Iohannis shows that it is necessary for the future law to expressly indicate the threshold of power up to which the notion of prosumer acts. The President mentions: The addition to the definition of the prosumer in art. 3 point 95 lit. b) point (ii) of the law under review, according to which the prosumer can compensate financially the surplus of electricity produced and delivered to a place of production and consumption with the electricity consumed from the network for other places of consumption and/or places of production and their consumption "if the places of consumption and/or the places of production and consumption are connected to the electricity network of the same electricity distribution operator, provided that the production of electricity does not constitute their primary commercial or professional activity;" may constitute a barrier regarding the access of prosumers to the electricity market. Considering the fact that the supplier manages the relationship with the distribution operators for the consumption places of the prosumer final customer, this effect needs to be re-analysed.

The head of state also points out that the European regulation on the matter indicates, over time, the transition to a system where exemptions are limited, not extended, to ensure the internalization of some costs by prosumers. That is why Klaus Iohannis believes that the new maximum limit of the power installed by a prosumer, of 900 kilowatts, is more than double the limit allowed by the European regulation, which establishes that starting from January 1, 2026, the limit will be reduced to 200 kilowatts.

President Iohannis states: "The effect of this exemption (ed. - by the new law) from responsibility for imbalances caused in the system and the transfer of responsibility strictly to the supplier, under the conditions regulated by ANRE, involves additional costs borne by the final consumer. Moreover, this provision was introduced by an amendment admitted in the Chamber of Deputies, Decision-Making Chamber, following the joint report of the Commission for Economic Policy, Reform and Privatization and the Commission for Industries and Services. In order to comply with the requirement that the law be the joint work of the two Chambers of the Parliament, it is necessary for the Senate, as the first competent Chamber, to evaluate the appropriateness of the newly introduced amendments. (...) In art. In point 1 and point 4 of the revised law, the definition of quantitative compensation is introduced and a new limit of installed power is regulated for which electricity suppliers will be obliged to perform a quantitative compensation, namely 400 kW. Correlatively, by art. I point 4 was amended art. 731 para. (3) from Law no. 123/2012, establishing the new limit for quantitative compensation and introducing new obligations for energy suppliers, (...). Through this transitional rule, the effect of the new applicable conditions regarding quantitative compensation will also extend to the sales-purchase contracts of electricity from renewable sources already concluded between suppliers and prosumers, with implications on the security of legal relationships. In the conditions in which the parties have assumed a series of rights and obligations in a determined context and in consideration of the effective ability to apply this mechanism, the new rules on quantitative compensation applied to the contracts of ongoing negotiations could generate additional pressure on one of the contracting parties, with consequences also on final prices. Correlatively, the elimination of the 24-month period in which the difference between the quantity produced and consumed could be consumed by the prosumers, reported in the prosumers' invoices according to art. 731 para. (3) lit. b) from the law in force, will generate the immediate application of the obligations of compensation and settlement of electricity quantities in the process of quantitative compensation using the price of active electricity provided in the electricity supply contract concluded between the supplier and the prosumer".

The President believes that through the provisions of the new law we are witnessing "a transfer of administrative costs from the prosumer to the supplier, under the conditions that each one represents active participants in the electricity market, presumably equal in rights and obligations". Therefore, the head of state states that due to the fact that the legislator has decided on the necessity or opportunity of a different fiscal treatment for certain categories of electricity supplies, the evaluation of the current situation and the indication of the considerations underlying his decision must be properly motivated, and the conditions newly established for the granting of facilities or exemptions, or for the transfer of responsibilities, must not only be reasonable and objectively justified, but also correlated with the rest of the national legislation, respectively compliant with European norms.

In light of these reasons, Klaus Iohannis decided to resend the law to Parliament, in order to make the requested changes.