1. Smart meter roll-out and opt-out
Digital smart meters or intelligent measuring devices (for general information, see https://en.wikipedia.org/wiki/Smart_meter) are seen as central to many "intelligent" solutions in the energy transition. Energy communities would, for example, not be able to operate without them, and it would also not be possible to feed energy generated from photovoltaics installations on the roof of one's own home into the grid.
The Austrian electricity grid operators have therefore already started the smart meter roll-out, and it has progressed locally in varying degrees. However, resistance tosmart meters has always been quite high in certain circles of the population because it is feared that the capabilities of smart meters to collect and store consumption behaviour quasi-simultaneously will violate data protection law and personal rights.
These concerns were also taken into account by restricting the data processing and data use options in Sec. 83 et seq. of the Electricity Sector and Organisation Act/ElWOG 2010 and, above all, the possibility of "opting out" for grid users (consumers) in accordance with Sec. 1 par. 6 of the Intelligent Metering Equipment Introduction Regulation (IME-VO). In this case, the grid operator does not continuously record data even if a smart meter has been installed. Instead, when an opt-out declaration is received, the grid operators must configure the smart meter to be installed or already installed in such a way that no monthly, daily and quarter-hourly values can be stored and transmitted. The difference between the smart meter and the previous analogue meter is that data are read out remotely once a year and it is no longer necessary to be on site to rad them out.
2. Supreme Court ruling 6 Ob 36/22w
In its ruling of 6 April 2022, 6 Ob 36/22w, the Supreme Court (OGH) put an end to a long-standing legal dispute between a person objecting tosmart meter use and his grid operator. The Supreme Court stated that the data processing foreseen for the functionality intended in the specific case (in the opt-out variant) did not prevent the installation and use of a digital metering device. The(hypothetical) possibility that the grid operator could re-programme the device remotely and thus expand its data processing capabilities would not be an argument speaking against the installation and use of this measuring device, especially since the grid operator was entitled to this under the grid usage contract between the parties and the (distribution) grid terms and conditions on which the contract is based and which have been approved by the regulatory authority.
The plaintiff objecting to smart meter use had demanded that the defendant grid operator refrain from replacing the "Ferraris" meter installed at the metering point with a smart meter and that the network operator would not have the right to replace the "Ferraris" meter installed at the metering point with a smart meter without express consent. He argued that information about private household energy use collected by smart meters would be personal data within the meaning of Article 4(1) of the GDPR. The detailed recording of electricity consumption in individual residential units would also be a significant intrusion into the privacy protected Sec. 16 of the Austrian Civil Code.
The Supreme Court did not follow the arguments of the plaintiff: There would be no reason to doubt that in the specific case, data processing would have to be assessed under the GDPR. However, the procedure was permissible in order to fulfil the contract entered into between the parties to the dispute and in accordance with Article 6(1)(b) of the GDPR. Case law of the Constitutional Court (VfGH V 178/2021) also stipulates that the opt-out configuration pursuant to Sec. 1 par. 6 IME-VO (relevant in the present case), in which a (smart) meter merely fulfils the function of a (digital) standard electricity meter, takes thelegitimate interests involved in reading and identifying annual electricity consumption into account in a proportionate manner with regard to the (personal) data of the plaintiff, which are protected by Sec. 1 of the Data Protection Act and Article 8 ECHR. The question of whether the collection, storage and reading of the electricity consumption was permissible data processing within the meaning of the GDPR had to be considered as separate from the question of whether the possibility of expanding data processing made the installation of the measuring device or its use impermissible. According to the Supreme Court, the intended installation and use of the measuring device in itself did not constitute data processing contrary to the GDPR or a serious impairment of privacy (Sec. 16 of the Civil Code) which would make installation or use impermissible. There was neither a threat that the grid operator would act in breach of an obligation to cease and desist, which would be a prerequisite for the preventive action for injunctive relief, nor was there any reason to doubt the permissibility of the grid operator's contractually granted authorisation to install and use the metering device in question (in the opt-out variant).
3. Conclusion
Of course, nobody can say with certainty if ruling Ob 36/22w really was the final word inthe fight of some against the roll-out of smart meters and if those against smart meters are now backing down. However, what we can say is that the Supreme Court considers the (distribution) grid terms and conditions approved by the regulator to be a suitable justification for theinstallation and use of smart meter data and that grid operators are not under "general suspicion" of manipulating the device configuration remotely. This is at least something!
If you have any questions about these or other energy law topics, the KWR Energy Team is always ready to provide information.