The advance payment provided for in Article 29, para. 1 of the REA (REA) is also due in cases where the producer of electricity from renewable sources declares that he will not use the preferences under Articles 31 and 32 when submitting a request for connection.
Our arguments justifying this opinion are:
The provision of Article 25 of the REA provides as follows:
“The provision of Article 23 shall not apply to energy installations for the production of electricity from renewable energy sources where, when applying for connection, the producer of electricity from renewable energy sources declares that he will not benefit from the preferences provided for in Articles 31 and 32.”
Article 25 of the REA excludes the application of Article 23 of the REA on the rules and procedures for connection. Respectively, when submitting an application for connecting projects, which will not use preferential prices for purchase of the electricity produced by them, the one provided in para. 8 of the same provision, a guarantee for participation in the procedure in the amount of BGN 5,000 per megawatt (MW) of requested connection capacity.
Article 26 of the REA sets forth the procedure for submitting requests for examination of the conditions and method of connection to the respective electricity network operator for the projects falling under the exception of Art. 25, namely these are the conditions and the procedure under Article 116, para. 7 of the Energy Act. According to Article 29, para. 10 of the REA “The preliminary contract and the contract for connecting shall be concluded under the conditions and by the provisions of the ordinance under Article 116, para. 7 of the Energy Act.” The ordinance under Article 116, para. 7 of the Energy Act is Ordinance № 6 of 24.02.2014 for connection of producers and customers of electricity to the transmission or distribution electricity networks (“Ordinance”).
Article 81, para. 1 of the Ordinance provides that “The connection of facilities for production of electricity from renewable sources shall not be bound by the approved annual electric capacities under Article 22 of the REA and the procedure for connection under Article 23 of the REA shall not apply to them when:
- they are facilities under Article 24, items 2, 3 and 4 of REA;
- are facilities under Article 25 of the REA for which the applicants have declared that they will not benefit from the preferences under Articles 31 and 32 of the REA.”
The procedure for connection described in the Ordinance also applies in the case of Article 25 of the REA, in which case both the REA and the Ordinance state only that Article 23 of the REA does not apply, where only the guarantee of participation is provided.
Neither of the two legal acts derogates the application of Article 29 of the REA, which provides for an advance payment of BGN 50,000 for each megawatt (MW) of installed capacity of the future energy facility when the installed capacity is greater than 5 MW.
On the contrary, Article 29, para. 1 of the REA refers in general to all producers of energy from renewable energy resources “(1) Upon concluding a preliminary contract for connection, the producer of electricity from renewable sources shall owe to the transmission or the respective distribution company, which connects it, an advance payment in the amount of […] “
Another argument in this direction which supports the above conclusion and the provision of Article 82, para. 3 of the Ordinance, according to which “Upon signing the preliminary contract, the network operator shall issue an invoice for due advance payment in accordance with Article 29, para. 1 of the REA.”
The provision of Article 29, para. 1 of the REA (payment of a deposit in the amount of BGN 50,000 per MwH in case of a preliminary connection contract) is also applied to a project that does not receive preferential purchase prices, regardless of the fact that the energy is from renewable energy resources.