Transit Delivery – Definition, Legal Foundations, and Areas of Application
Transit delivery is a multifaceted legal term that plays a significant role primarily in energy law, especially in the context of gas and electricity trading as well as the supply industry. The term describes the physical and legal transfer of energy (electricity or gas) through the grid of a grid operator or transport company, without the forwarding grid operator itself acquiring ownership or control over the energy. In a narrower sense, ‘transit delivery’ often refers to the process in which energy is transported through the grid of a third party to reach the actual end customer. Below, the structure, legal bases, fields of application, and particularities of transit delivery are presented in detail.
1. Concept and Systematics of Transit Delivery
1.1. Basic Definition
Transit delivery describes the legal and actual conveyance of energy (electricity, gas, heat) through a grid while maintaining the supply relationship between the original supplier and the end customer. The grid operator here acts solely as a technical service provider and does not become a contractual party with regard to the energy supply.
1.2. Distinction from Related Terms
Transit delivery must be differentiated from injection, balancing group management, and resale. In resale, the grid operator or an intermediary acquires ownership of the energy and resells it, whereas in transit delivery, the original contractual relationship remains intact: Ownership and possession of the energy remain with the supplier or are transferred directly to the end customer.
2. Legal Foundations of Transit Delivery
2.1. Transit Delivery in Energy Law
The concept of transit delivery is codified in German and European energy law. Key sources of law include:
- Energy Industry Act (EnWG): Section 20 EnWG regulates the obligation of grid operators to allow transit delivery of third-party energy through their grid.
- Gas Network Access Ordinance (GasNZV) und Electricity Network Access Ordinance (StromNZV): These ordinances specify the technical and legal conditions for grid access and thus also for transit deliveries.
- European Directives (e.g. Electricity Internal Market Directive 2019/944/EU): Harmonize grid access and transit obligations at the EU level.
2.2. Contracts and Legal Relationships
As part of transit delivery, the following contractual relationships typically exist:
- Supplier-Customer Contract: The supplier agrees with the end customer on the supply of energy.
- Grid Usage Contract: The supplier or the customer concludes a contract with the grid operator for the use of the grid (grid usage contract). The grid operator undertakes to transport the energy through its grid (physical transport).
The grid operator does not become a party to the energy supply contract. The legal relationships are usually governed by so-called ‘supplier framework contracts.’
3. Areas of Application for Transit Delivery
3.1. Electricity Market and Gas Trading
Transit delivery plays a crucial role, particularly where suppliers and customers are not connected to the same grid. This is the norm in the liberalized electricity and gas markets. The physical delivery is coordinated by several grid operators, but legally, the supplier remains the customer’s sole contractual partner.
3.2. Special Aspects of Cross-Border Transit
In international energy deliveries, transit delivery (transit) across the territory of other states is significant. Additional public international law and European law regulations apply here to ensure non-discriminatory grid access.
4. Legal Particularities and Issues
4.1. Liability and Responsibilities
The grid operator is liable for the safe and reliable transit of energy in accordance with legal requirements. The allocation of liability between supplier, grid operator, and customer is set out in the grid usage conditions and supplier framework contracts.
4.2. Fee Regulation and Costs
The grid operator charges grid usage fees for transit delivery, which are regulated by the Federal Network Agency or the respective state regulatory authorities. These charges form part of the total costs of the energy supply chain and are subject to specific requirements regarding transparency, appropriateness, and non-discrimination.
4.3. Third-Party Access and Regulatory Issues
Transit delivery requires non-discriminatory grid access (Third Party Access, TPA). According to legal requirements, grid operators must transport energy from third-party suppliers through their grid on the same terms as for their own purposes. Violations of these requirements can be subject to regulatory sanctions.
5. Distinctions and Related Legal Terms
5.1. Transit Versus Transit Delivery
Although the terms are often used synonymously, transit more commonly refers to the physical process of transporting energy through the grid, while transit delivery also focuses on the legal relationships between the parties involved.
5.2. Balancing Group Management
In the context of transit delivery, balancing group management is important. The supplier must ensure that the amounts of energy fed in and withdrawn are balanced. The grid operator monitors compliance with these balancing mechanisms.
6. Significance in Other Legal Fields
6.1. In Transport and Logistics Law
Even outside of energy law, transit delivery can be relevant for goods traffic (in particular, the transit of goods through foreign national territory). However, specific international and commercial law provisions apply in these cases.
7. Summary
Transit delivery is a central concept in energy law and refers to the legally and technically organized forwarding of energy through the grid of a third party, whereby ownership and contractual fidelity between supplier and end customer are preserved. Numerous legal provisions, particularly the EnWG and network access ordinances, regulate the legal prerequisites and obligations surrounding transit delivery. It is essential for a functional, competitive energy market as well as for ensuring security of supply and non-discriminatory grid access.
Further topics: Grid usage, transit, balancing group, regulation of the energy industry, grid fees, supplier framework contract.
Frequently Asked Questions
What legal requirements must be met for transit delivery under German energy law?
Under German energy law, transit delivery—i.e., the transmission of energy (mainly electricity or gas) through a third-party grid for an end consumer—is subject to numerous statutory and regulatory requirements. The core basis is the Energy Industry Act (EnWG), especially the rules on network transit (§§ 20 ff. EnWG), which guarantee non-discriminatory use of the grids by third parties (so-called network access). For a lawful transit delivery, a grid usage contract must first be concluded between the grid user (often a supplier) and the grid operator. In addition, the technical connection conditions (TAB) and the applicable transit charges in the specific grid area, which are supervised by the Federal Network Agency, must be observed. The quantity and quality of the energy delivered must be precisely measured (Metering Point Operation Act – MsbG) and settled accordingly. Compliance with data protection and data security requirements under the GDPR and EnWG is also mandated. Finally, for cross-border transit delivery, the requirements of the so-called REMIT Regulation (EU No. 1227/2011) must also be observed.
What contractual relationships exist in a transit delivery and who are the involved parties?
In a transit delivery, there are basically at least two relevant contractual relationships: on one hand, the energy supply contract between the supplier and the customer (end consumer), and on the other, the grid usage contract between the supplier or customer and the grid operator. Additionally, a balancing group contract between the balancing group responsible party and the transmission system operator for securing energy balancing may be concluded. In many scenarios, a metering point operator also assumes a separate role governed by legal obligations (MsbG). In cases of transit delivery over several grid levels or operators (e.g., from upstream to downstream grid operators), further contracts such as supplier framework agreements or grid coupling contracts may be required. Legally decisive is that the respective contract obligations and mutual rights are clearly separated, especially with regard to grid usage fees, disturbance management, and liability issues.
What liability provisions apply in the case of disruptions or interruptions during transit delivery?
Liability for disruptions or interruptions in the context of transit delivery is initially governed by the general civil law rules of contract law (in particular, §§ 280 ff. BGB), but is also subject to special provisions of energy law and the respective grid usage or feed-in contracts. The grid operator is generally liable for damages resulting from an interruption of transit, unless these are due to force majeure or unavoidable circumstances (§ 18 EnWG in conjunction with § 6 NAV/NDAV). Many grid usage contracts contain liability limitations, which must not contravene the requirements of general terms and conditions law (§§ 305 ff. BGB) and the mandatory consumer protection regulations. In cases of intentional or grossly negligent behavior by the grid operator, liability limitations are usually invalid. Furthermore, the EnWG differentiates with regard to the amount of damages between typical and atypical damages and by the degree of fault.
How is grid access for transit deliveries legally ensured?
Access to energy supply grids for transit deliveries is a so-called mandatory contracting obligation under Section 20 EnWG: Grid operators are obliged to grant each grid user access on non-discriminatory terms, provided that grid transit is technically and operationally feasible. Access must be provided on reasonable, transparent, and non-discriminatory terms, which are checked and specified by the Federal Network Agency within the framework of incentive regulation and via ordinances such as the Electricity Network Access Ordinance (StromNZV) and the Gas Network Access Ordinance (GasNZV). Rejections of grid access must be given by the grid operator expressly and in writing, stating the reasons. In cases of abuse due to unjustified denial of access, affected parties have legal remedies (e.g., antitrust complaint under Section 31 EnWG).
What role does the Federal Network Agency play in transit deliveries?
The Federal Network Agency (BNetzA) assumes a central regulatory and supervisory role in transit delivery. It approves the grid fees, monitors their compliance, and thereby regulates the economic conditions for grid access. The agency also serves as an arbitration and complaints authority in disputes over grid access or the details of grid usage contracts (Section 65 EnWG). Additionally, the Federal Network Agency is responsible for monitoring unbundling regulations (§§ 6 ff. EnWG), transparency requirements under energy law, and the prohibition of discrimination among different market participants. In its role, the agency can issue binding decisions and impose fines for statutory violations.
What data protection requirements apply in the context of transit delivery?
All parties involved in transit delivery are subject to the data protection regulations of the EU General Data Protection Regulation (GDPR) as well as specific legal provisions of the EnWG (§§ 21b, 21c, 21d EnWG). Particularly sensitive are the personal consumption data collected in the course of metering as well as other customer-related information. The processing, storage, and disclosure of this data must comply with the principles of data minimization, purpose limitation, integrity, and confidentiality. Technical and organizational measures for data security are mandatory. Violations of data protection requirements can have both civil and administrative fine consequences, so special care must be taken in contract design and practical data handling.
What legal particularities exist with respect to cross-border transit deliveries of energy?
In cross-border transit deliveries, numerous European regulations apply in addition to national provisions, especially Regulation (EC) No. 714/2009 and No. 715/2009, and the REMIT Regulation (EU No. 1227/2011), which contain, in particular, transparency and reporting obligations and rules on market conduct on interconnectors. Technical standards, electricity or gas flow capacities, congestion management, and coordination between national transmission system operators are also regulated under EU law. Market participants are required to report all cross-border transactions to the Agency for the Cooperation of Energy Regulators (ACER). Cross-border disputes are decided on the basis of bilateral agreements and, if necessary, by the EU Commission or the ECJ. Special attention must also be paid to any customs or tax law provisions relevant to transit transactions.
