OLG Frankfurt: Contractor Subject to EEG and KWKG Surcharge

In a decision of late April, the Higher Regional Court of Frankfurt (OLG Frankfurt) dismissed the appeal of a contractor against the ruling of the prior instance that had ordered him to pay an electricity bill including the surcharges pursuant to the Renewable Energy Sources Act (EEG) and the Combined Heat and Power Act (KWKG).

With the EEG surcharge, ultimately the consumers pay for the difference between the guaranteed feed-in tariffs paid pursuant to the Renewable Energy Sources Act (EEG) for renewable energy fed into the grids and the sale of the renewable energy at the EEX energy exchange by the transmission system operators (TSOs). Electricity generated in combined heat and power plants is remunerated pursuant to the KWKG. The costs are also passed on to the end consumers.

In the case at hand, defendant, a contractor, had claimed that he was a wholesaler of electricity and thus not subject the surcharges. OLG Frankfurt, however, decided against plaintiff, arguing that he operated the electricity infrastructure of his clients, e.g. hotels, hence he was the end consumer who had to pay the surcharges pursuant to the EEG and KWKG. Plaintiff himself consumed the energy, only transforming it into various energy forms like heat and light according to his clients needs, OLG Frankfurt stated.

The decision shows that contracting models under which certain energy forms like heat, light, air conditioning etc. are delivered do not exempt from the electricity surcharges for renewable energy and combined heat and power.

Source: OLG Frankfurt decision of 25 April 2012 (ref. no. 21 U 41/11)

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