Standing and subsequent steps within the legislative process
The Federal Ministry of Economics and Vitality has made accessible to associations and the skilled public an overview of a draft invoice on the implementation of related EU necessities and the regulation on pure hydrogen networks. This draft invoice, by amending the present Vitality Business Act, will for the primary time enact laws regarding separate hydrogen networks. The meant regulation is meant to set the framework for a quick and legally sound improvement of a nationwide hydrogen community infrastructure. The deliberate regulatory framework for the hydrogen community infrastructure is to be merely a transitional framework, which is to be tailored after additional alignments at European degree.
Present regulatory setting for hydrogen networks
As of at this time, separate hydrogen networks – which means networks transporting solely hydrogen with out an admixture of different gases – will not be regulated beneath German legislation. The draft invoice takes the view that these networks don’t fall beneath the time period vitality as outlined by the German Vitality Business Act and even when present pure fuel pipelines are transformed to hydrogen pipelines, the prevailing rules for these services don’t proceed to use. The already present hydrogen pipelines are predominantly pipelines which might be straight related to sure prospects for his or her provide. These already present hydrogen pipelines or networks are at present topic to normal antitrust legislation alone.
Important provisions of the draft invoice
The draft invoice is supposed to facilitate the quick improvement of a hydrogen community infrastructure, in addition to the implementation of assorted rules, together with the implementing of the Directive (EU) 2018/2001 – Renewable Vitality Directive (RED II). It’s in step with the EU Hydrogen Technique from July 2020 (see Dentons’ report here) and likewise with the continuing discussions on hydrogen networks at EU-level. In mild of the EU’s actions round this topic, a few of the proposed rules are solely transitional. As soon as EU laws on hydrogen networks is enacted, the present provision can be changed by their transposition. The draft invoice furthermore furthers the motion plan which is a part of the German Nationwide Hydrogen Technique from June 2020 (see additional here) and is in step with the re-development and resilience plan as agreed by the German authorities in December 2020. Motion merchandise 20 of the German Nationwide Hydrogen Technique calls for the institution of networks just for transporting hydrogen, other than beginning to use a part of the prevailing fuel networks additionally for hydrogen.
New/tailored authorized definitions
In accordance with the brand new authorized definition in part 3 quantity 10a of the draft invoice, an “operator of hydrogen networks” is any pure/authorized individual solely engaged with the transport of hydrogen. Part 3 quantity 14 of the draft invoice extends the definition of “vitality” to additionally embody hydrogen (when used as an influence provide by way of pipelines), making it a 3rd unbiased designated supply of vitality, other than electrical energy and fuel. Although hydrogen is a fuel, the express naming of hydrogen alongside electrical energy and fuel emphasizes the particular significance of hydrogen. Lastly, the brand new part 3 quantity 39a of the draft defines “hydrogen community” as a provide community that with respect to its dimension is ready to accommodate an indefinite variety of prospects. In accordance with the definition, a hydrogen pipeline that’s designed to produce sure prospects who’re already decided or specified on the time of community development is to not be included. Nonetheless, hydrogen networks of this type don’t qualify as vitality provide networks beneath the Vitality Business Act and will not be topic to the rules regarding necessary provisioning (part 18 Vitality Business Act).
New part on the regulation of hydrogen networks
The draft invoice introduces a brand new part 3b partly 3 of the Vitality Business Act, incorporating for the primary time rules regarding pure hydrogen networks. The brand new provisions are meant to spice up the market and are complemented by transitional regulation on the conversion of present fuel pipelines to hydrogen pipelines. It’s meant that the principles beneath the brand new part 3b can be re-evaluated and revisited at a later time.
The provisions of the draft invoice will not be mechanically relevant to any present or future hydrogen pipelines and hydrogen networks. Reasonably, based on part 28j of the draft invoice, the operators of hydrogen networks are ready to decide on whether or not they need to be topic to the brand new rules or not. It will rely on the potential advantages the applicability of the regulation may maintain for his or her particular enterprise mannequin. If the operator decides to decide in, he has to declare this in writing to the Federal Community Company, which can even undertake a wants evaluation by the Federal Community Company, based on part 28q of the draft invoice.
Part 28k of the draft invoice requires, in accordance with the unbundling guidelines already within the Vitality Business Act, a separate accounting and bookkeeping for hydrogen networks to be able to keep away from cross-subsidisation and due to community cost regulation. The unbundling rules transcend accounting and bookkeeping. For instance, part 28l of the draft invoice moreover gives that hydrogen community operators will not be allowed to carry property in vegetation for hydrogen manufacturing, storage, consumption, in addition to vegetation for feeding fuel into the fuel provide networks. Nevertheless, a gaggle of corporations consisting of hydrogen community operators and undertakings finishing up different vitality provide actions shall be permitted.
The supply of part 28m of the draft invoice repeats the well-known provisions of the German Industrial Act for community operators and storage operators: The design and dealing with of community operation should be introduced in a clear and non-discriminatory method. Unbundling should be carried out in such a manner that there’s a clear separation between the operation of hydrogen networks, hydrogen manufacturing, hydrogen storage and hydrogen utilization. Third events should even be granted connection and entry to the hydrogen community on affordable and non-discriminatory phrases. The entry situations shall be revealed, based on part 28m.
Total, the provisions of the brand new (draft) part 3b partly 3 of the Vitality Business Act are meant to offer a good and predictable authorized framework for the brand new hydrogen networks enterprise phase, whereas additionally selling sound competitors from the start. The draft invoice doesn’t have an effect on the feeding (admixture) of hydrogen to the fuel community, which continues to be ruled by the respective present rules. Feeding in will proceed to be doable inside this framework and its limitations. That is explicitly acknowledged within the explanatory memorandum.
The draft relies on the identified guidelines for networks and storage services. It retains all choices open. Hydrogen community operators have the choice of subjecting themselves to regulation throughout the specified standards. On the identical time, the admixture of hydrogen won’t be hindered by the introduction of the regulation, and can stay doable throughout the framework of the prevailing guidelines.
We are going to proceed to observe the BMWi’s draft invoice and maintain you knowledgeable.