BGH Ruling on Date of Commissioning of Renewable Power Plants

Confirming and supplementing a ruling of May 2008, the Federal Court of Justice (Bundesgerichtshof – BGH) held that the date of the commissioning of a power plant generating power from renewable sources is the date of the initial start of operations after its technical operational readiness has been established. This also applies if conventional fuel is needed for the start-up process.

The ruling was based on the Renewable Energy Sources Act 2004 (EEG), the predecessor of the currently applicable EEG 2009. The date of commissioning is always critical, as feed-in tariffs paid pursuant to the EEG depend on the exact date of commissioning.

In the case before the BGH, the case turned on whether the plant had started operating in 2006 or 2007. A regional utility had originally paid the feed-in tariff for 2006, but later requested repayment, arguing that operations with renewable fuels only started in 2007.

Section 3 no. 5 of the current EEG 2009 meanwhile also clarified on the statutory level that commissioning  mean the first time an installation is put into operation, following the establishment of operational readiness, irrespective of whether the generator in the installation was put into operation using renewable energy sources, mine gas or other energy sources.

Source: Federal Court of Justice (ref. no. VIII ZR 48/10)

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