Another Biogas Operator Launches Constitutional Complaint Against Biogas Provision in EEG 2014

Another 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). The operator is again supported by the renewables assocation Nachhaltige Energie e.V.

Plainiff was granted a building permit for a 400 kW biogas plant in 2013, which started operating on 22 December 2014, i.e. after the entry into force of the amended EEG which reduced remuneration for biogas plants (for more information on the EEG 2014 amendments, please see here).

So as not to invalidate investments made by renewable power plants operators before the first information on the EEG 2014 amendment was made public by the government, the EEG 2014 contains various transitional provisions. Section 100 para. 3 EEG 2014 is one of them. It provides that operators who had received a permit before 23 January 2014 still receive EEG support pursant to the EEG 2012 if the installation was commissioned after the entry into force of the EEG 2014 on 1 August 2014, but before 1 January 2015.

Yet there is a second requirement in Section 100 para. 3 EEG 2014 which plaintiff could not fulfill. The permit that had to be granted before 23 January 2014 has to be either a permit pursuant to the Federal Immission Control Act (BImSchG) or a permit pursuant to federal law. The building permit which plaintiff had received was, however, granted pursuant to the building code of one of the German federal states (According to BImSchG and the accompanying 4th Ordinance on Installations that require BImSchG permits, it depends on the rated thermal input if a BImSchG permit or a permit pursuant to state building law has to be applied for).

Plaintiff claims to receive less than half of the EEG remuneration under the EEG 2014 than he would have got under the EEG 2012. He argues that the fact that his case is not covered by the transitional provision Section 100 para. 3 EEG 2014 violates the consitutional right of property (Article 14 para. 1 Basic Code), his occupational freedom (Article 12 Basic Code) and in particular the right of equality before the law (Art. 3 para. 1 Basic Code), as the differentiation between permits issued pursuant to BImSchG or federal law and permits granted pursuant to state building law was arbitrary.

Regarding the other constitutional complaint also backed by the association Nachhaltige Energien e.V., please see here. The case relates to the transitional provision Section 101 para. 1 EEG 2014 which limits EEG support to a certain extent also for plants that started operating before 1 August 2014.

Source: Nachhaltige Energien e.V.

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