EEG Clearing Agency Recommendation on Partial Payments of Feed-in Tariffs

Clearingstelle EEG (EEG Clearing Agency) has (for the most part) concluded a recommendation procedure (Empfehlungsverfahren) concerning partial payments (Abschlagszahlungen) on feed-in tariff payments for renewable energy fed into the gird.

Section 16 para. 1 sent. 1 EEG provides that grid system operators shall pay installation operators at least tariffs pursuant to sections 18 to 33 EEG for electricity generated in installations exclusively utilising renewable energy sources or mine gas. According to Section 16 para. 1 sent. 3 EEG, monthly partial payments “of an appropriate amount” shall be made for the anticipated payments. The vague wording of the partial payment provision that was introduced with with the last EEG amendment (EEG 2012) has caused uncertainty as to the interpretation.

EEG Clearing Agency, which serves interested parties with regard to the interpretation and disputes relating to the EEG, has therefore decided to conduct so-called recommendation proceedings (Empfehlungsverfahren) aimed at answering the following questions:

1. What are partial payments of an appropriate amount in the sense of Section 16 para. 1 sent. 3 EEG?

In particular

(a) When and under what conditions are partial payments due?

(b) In what amount do partial payments have to be paid monthly?

(c) When and under what conditions do the partial payments have to be paid for the first time?

2. Can installation operators and grid operators agree on terms deviating from Section 16 para. 1 sent. 3 EEG by contract  in view of Section 4 para. 2 sent. 1 EEG?

In recommendation proceedings Clearingstelle EEG clarifies questions of general interest with regard to the interpretation and application of the EEG that affect a multitude of installation and grid operators and apply in general to more than one renewable energy source.

In the case at hand, EEG Clearing Agency answered the above questions as follows.

1. The partial payment in the sense of Section 16 para. 1 sent. 3 EEG is payable in the month following the electricity generation eligible for payment under the EEG. An exact date for payment can, however, not be determined by legal interpretation.

Hence, Clearingstelle EEG recommends that grid operators make partial payments by the 15th calendar day of the month following the input of electricity eligible for payment pursuant to the EEG.

2. Not all of the obligations to furnish proof for feed-in payments pursuant to Section 16 para. 1 sent. 1 EEG in connection with Sections 18 to 33 EEG 2012 (that stipulate the requirements and the individual tariffs for the different renewable energy sources) are a prerequisite for the partial payments in the sense of 16 para. 1 sent. 3 EEG 2012 to become due. According to Clearingstelle EEG, a distinction has to be made between

• proof that has to be furnished in case payments are claimed for the first time,

• proof that has to be furnished only once and

• proof that has to be furnished continuously.

Proof that has to be furnished when first claiming feed-in tariffs and proof that has to be furnished only once is a necessary prerequisite for claiming the partial payments in the sense of  Section 16 para.1 sent.3 EEG 2012. Regarding proof that has to be submitted continuously a plausibility check it is enough for claiming partial payments, Clearingstelle EEG says.

3. Partial payments have to be made on the basic tariff as well as possible bonuses. They are appropriate in their amount if they are in the range of the expected payments. The following two options are in accordance with the law, EEG Clearing Agency says.

• Partial payments which reflect the expected monthly feed-in tariff, which can differ throughout the year (varying payments)

• Constant monthly installments of a twelfth of the expected yearly feed-in tariff amount (linear payments)

Clearingstelle EEG recommends that installation and grid operators mutually agree on varying or linear payments, but suggests the grid operator has the final say about the type of payment.

4. EEG Clearing Agency advises that installation and grid operators do not deviate from the above procedure for monthly partial payments in the sense of Section 16 para. 1 sent. 3 EEG, as contractual changes might violate Section 4 EEG 2012. Said provision lays down statutory obligations under the EEG. According to paragraph 1, “Grid system operators shall not make the fulfilment of their obligations arising from this Act conditional upon the conclusion of a contract”. Paragraph 2 provides that deviations from the EEG are only possible under very limited conditions.

At any rate grid operators must not make the partial payments conditional on the payment of fees or clearing such fees when making partial payments, EEG Clearing Agency warns.

The recommendation does not answer further questions raised in a decision to extend the scope of the recommendation proceedings of 4 May 2012. EEG Clearing Agency will answer those questions at a later date.

Source: Clearingstelle EEG

Related posts:

0 Responses to “EEG Clearing Agency Recommendation on Partial Payments of Feed-in Tariffs”


Comments are currently closed.