Stuttgart Court Does Not Stay Lawsuit Against EEG Surcharge to Submit Case to Federal Constitutional Court

The Regional Court of Stuttgart did not see the necessity to stay a lawsuit brought by the Spinnwerberei Uhingen against the utility EnBW and submit the case to the Federal Constitutional Court (BVerfG). It dismissed the case in which plaintiff demanded repayment of the so-called EEG surcharge from EnBW because of alleged lack of constitutionality.

The court ruled against plaintiff saying firstly he committed to paying the EEG surcharge and secondly the court was not convinced of plantiff’s allegations of the unconstitutionality of the EEG reallocation charge. In a case of mere doubt about the unconstitutionality, however, the courts had to apply the law and abstain from submitting the case to BVerfG.

Under German constitutional law (Art. 100 para. 1 sent. 1 Basic Law) only BVerfG may find that a statute is incompatible with the Basic Law. If another court considers a statute to be unconstitutional and therefore wishes not to apply it, it must first obtain the decision of BVerfG (concrete review of statutes).

With the EEG surcharge, consumers pay for the difference between the fixed feed-in tariffs paid pursuant to the Renewable Energy Sources Act (EEG) for renewable energy fed into the grids and the sale of the renewable energy at the EEX energy exchange by the transmission system operators. Over the years, the EEG surcharge has risen considerably, amounting to 5,277 ct/kWh for 2013. Lately Environment Minister Altmaier and Economics Minister Rösler proposed amendments to the EEG in order to keep the EEG surcharge for 2014 on the 2013 level and thereafter limit increases.

Backed by their trade association t+m, three middle-sized textile companies, including Spinnweberei Uhingen, have brought test cases against the EEG surcharge. In December the Regional Court of Bochum dismissed the case of  Textilveredlung Drechsel GmbH from Selb in Bavaria. A third case is pending before the Regional Court of Chemnitz.

The trade association t+m announced that Spinnweberei Uhingen will appeal to the Higher Regional Court of Stuttgart and go all the way to up to BVerfG. t+m had commissioned a legal opinion on the EEG surcharge by Prof. Dr. Gerrit Manssen, a constitutional law expert at the University of Regensburg. He came to the conclusion that the EEG surcharge was an unlawful special levy (Sonderabgabe). This view was dismissed by the Regional Court of Stuttgart.

Source: Regional Court of Stuttgart (ref. no. 38 O 55/12 KfH)

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