EEG Clearing Agency: Vote on Solar Feed-in Tariffs for Installation on Commercial Use Conversion Area

Clearingstelle EEG (EEG Clearing Agency) has issued a vote concerning solar feed-in tariffs for solar plants on conversion areas from commercial use.

The decision relates to conversion areas from commercial use (Konversionsfläche aus wirtschaftlicher Nutzung) pursuant to Section 32 para. 3 sent. 1 no. 2 Renewable Energy Sources Act as applicable until 1 January 2012 (EEG 2009)

EEG Clearing serves interested parties with regard to the interpretation and disputes relating to the EEG. Its code of procedure provides for different procedures, one of which is the vote procedure (Votumsverfahren). It is intended for parties that mutually seek the neutral, unbiased advice regarding an EEG-related question by the experts of the EEG Clearing Agency.

The case at hand revolved around the question whether the area on which claimant planned a solar park qualified as a conversion area from commercial use in the sense of Section 32 para. 3 sent. 1 no. 2 EEG 2009. This was important as solar installations which are not attached to or on top of a building or a noise protection wall fall under Section 32 EEG 2009 (respectively EEG 2012 after the recent amendment that entered into force on 1 January 2012) and have to fulfil certain requirements to be eligible for the solar feed-in tariff stipulated in Section 32 EEG 2009 (respectively EEG 2012). Firstly, the area has to be covered by a zoning plan (Bebauungsplan) for which again certain requirements apply. Secondly, the area has to fall within the scope of the four types of areas, which Section 32 para. 3 EEG 2009 sets out, one of which is the conversion area from commercial use according to Section 32 para. 3 sent. 1 no. 2 EEG 2009.

Despite the fact that claimant planned to erect the solar park in an area that was formerly used for mining, respondent (the names of both parties were anonymized in the vote) was obviously unwilling to pay the feed-in tariff. EEG Clearingstelle, however, voted in favour of claimant.

The case highlights the problems that can arise with regard to the interpretation of the EEG and the payment of (solar) feed-in tariffs. EEG 2012 somewhat modified Section 33 EEG. The qualification as a conversion area has is commercially relevant as Section 33 para. 2 EEG 2012, in which conversion areas now become important, sets a slightly higher feed-in tariff than the one for installations falling under Section 33 para. 1 EEG 2012.

Source: Clearingstelle EEG

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