Constitutional Court Declares Complaint Against Curtailment Provision in Energy Act Inadmissible

In a recent decision the Federal Constitutional Court (BVerfG) declared a constitutional complaint (Verfassungsbeschwerde) inadmissible that challenged a provision in the German Energy Act (EnWG) which obliges operators of private power plants to reduce power input on request of the grid operator in return for a compensation. The complaint did not meet the (high) requirements for justification of bringing an constitutional action, BVerfG held.

The main reasons given for the ruling are as follows.

1. Pursuant to Section 13 para. 1a EnWG operators of plants that generate electrical power are obliged on request of operators of transmission grids “… to reduce active and reactive power in return for an adequate consideration.” An amendment in connection with the German “Energiewende” (energy policy shift towards a mainly renewable energy supply) dating 20 December 2012 lowered the threshold for plants covered by the provision from 50 MW to 10 MW and deleted the requirement of a voltage level of at least 110 kV.

2. Complainant is a company from the paper industry that generates the electricity and heat it needs in its own 283.7 MW power plant. Surplus power is fed into the electricity grid with 20 kV. Complainant contends an infringement of its constitutional right of property (Article 14 para. 1 Basic Code) and the right of equality before the law (Art. 3 para. 1 Basic Code), arguing in particular that measures based on Section 13 para. 1a EnWG could lead to considerable production losses. 

3. The constitutional complaint is inadmissible. It does not meet the requirements for justification of bringing an constitutional action laid down in Section 23 para. 1, sent. 2, first half-sentence and Section 92 Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG).

a) Complainant did not sufficiently demonstrate to be presently and personally affected by the provision he challenges. According to Section 13 para. 1a, sent. 3 EnWG the regulatory authority (The Federal Network Agency – BNetzA) is entitled to determine the addressees of Section 13 para. 1a EnWG. Complainant failed to produce evidence with regard to the question whether addressees have been specified and if complaint himself was one of them. Notably, complainant did not provide information with regard the decision by BNetzA of 30 October 2012 on the “Standardisation of Contractual Framework Conditions for Interventions of Transmission Grid Operators with Regard to the Operation of Generation Facilities”.

b) Besides, complainant did not demonstrate that all other legal remedies have been exhausted (with few exceptions a major prerequisite for bringing a constitutional complaint, cf. Section 90 para. 2 BVerfGG). If complainant was covered by the decision of BNetzA and thus affected, or if Section 13 para. 1a, sent. 3 EnWG is a provision that offers third party protection (drittschützende Wirkung), complainant could have sought the respective legal remedies.

c) Furthermore it is doubtful whether complainant respected the principle of subsidiarity that is a further prerequisite for constitutional complaints. From the information provided by complainant the court could not ascertain whether complainant contacted BNetzA so as to be exempted from Section 13 Abs. 1a EnWG.

The case shows that a constitutional complaint has to be well prepared, and again confirms that other legal remedies need to be exhausted before filing a constitutional complaint.

Source: Federal Constitutional Court, decision of 13. März 2014, ref. no. 1 BvR 3570/13

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