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Key facts of the case:

The claimant is an electricity enterprise and is connected to the distribution network of the defendant. There are price-laws on delivery of electric energy, here the SNT-VO 2010 – Directive of the Energy Control Commission on prices – is relevant. This foresees compulsory prices, also for network loss charge (Netzverlustentgelt). The defendant charged such loss charges to the claimant on a monthly basis. The claimant paid those charges for January/February 2011, but under the reservation of recovery of charges. In this procedure the claimant asks for recovery of those charges on 7 June 2011. Prior to this procedure the claimant initiated an extrajudicial settlement procedure, this claim was rejected by the regulation authority. In 2011 the Constitutional Court had lifted the SNT-VO 2010 together with the SNT-VO 2006 as being illegal. The claimant stated, that when interpreting the electricity economy and organisational act (Elektrizitätswirtschafts- und Organisationsgesetz, 1998, ElWOG 1998) and the SNT-VO 2010, an electricity enterprise is not to be seen as a “remover” (Entnehmer) of electricity produced in pump storage (Pumpstrom). Therefore there is no fee-obligation (Entgeltverpflichtung). The claimant asked for return of the payments for January/February 2011. Furthermore the claimant stated, that because of the EU Right to an effective remedy and to a fair trial, in the case of repeal of a legal norm each person has to be allowed to refer to this illegality, who filed a procedure before the lifting of the provision. The defendant stated that removers of electricity in pump storages are also to be seen as removers according to the ElWOG 1998. An illegality of the norms of the SNT-VO cannot be claimed, and also the claimant could not relate to the decision by the Constitutional Court, as this proceeding is no concerned case (Anlassfall). The first instance rejected the claim, as the claimant is to be seen as a remover according to ElWOG 1998, and it cannot relate to the Constitutional Court decision, for cases having taken place before the Constitutional Court ruling, the SNT-VO still applies, as the constitutional court did not mention the proceeding in its ruling as a concerned case. The doubts because of EU provisions raised by the claimant regarding the Right to an effective remedy and to a fair trial are not justified, as this jurispdrudence by the Court of the European Union only applies for EU legal acts. The second instance approved this decision with similar reasoning. Revision to the supreme court is allowed, as there is no jurisprudence regarding the possible preference of the EU Right to an effective remedy and to a fair trial in relation to the constitutional norm of Art. 139 Constitutional Act (Bundes-Verfassungsgesetz, B-VG). The Supreme Court in the end rejected the claim of the claimant.