Biogas Operator Launches Constitutional Complaint Against Biogas Provision in the Renewable Energy Sources Act 2014

An operator of a biogas plant has launched a constitutional complaint against a provision in the Renewable Energy Sources Act as applicable since 1 August 2014 (EEG 2014) that limits EEG support for biogas plants also for plants that started operating before that date. The operator is backed by the Renewables Assocation Nachhaltige Energie e.V.

The transitional provision Section 101 para. 1 EEG 2014 limits EEG support to a certain extent also for plants that started operating before 1 August 2014. EEG support is only granted up to the highest rated capacity (for the definition of rated capacity, see Section 5 no. 4 EEG 2014) reached in the past, respectively for plants that started operations before 1 January 2009 to 95% of capacity installed on 31 July 2014 if this is higher than the aforementioned limitation. For electricity exceeding the limit only the monthly value according to Annex 1 to the EEG 2014 is paid.

Plaintiff challenges the “retroactive encroachment on the protection of investments” that it believes to be unconstitutional, the association Nachhaltige Energien says. It claims that members of the association were expecting annual shortfalls of EEG revenue in the order of EUR 5.5 million.

Concerning the constitutionality of retroactive effects the Federal Constitutional Court (BVerfG) distinguishes between laws that alter cases that were fully completed in the past and those that effect cases that had a beginning in the past like the start of the operation of a biogas plant before 1 August 2014, and which are continuing into the present, like the continuing operation of the biogas plant. In the latter case the constitutional requirements are not as strict.

Source: Nachhaltige Energien e.V.

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