Law Suits Against EEG Surcharge Make Headlines

Backed by the Federal Association of the Textile and Fashion Industry (t+m), three middle-sized textile companies have filed law suits against the surcharge for renewable energy (EEG surcharge), claiming its unconstitutionality. The news was widely reported in the media.

The textile companies Vowalon Beschichtung GmbH, Treuen, Spinnweberei Uhingen and Textilveredlung Drechsel, Selb, already stopped payments of the EEG surcharge to their suppliers earlier this year, hoping the suppliers would bring action against them, t+m said. In order to speed up the matter, the textile companies meanwhile paid the surcharge and filed lawsuits seeking repayment.

With the EEG surcharge, consumers pay for the difference between the fixed 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). Over the years, the EEG surcharge (also called EEG reallocation charge) has risen to 3.592 ct/kWh in 2012. There is speculation that it will further rise to between 4.8 to 5.2 ct/kWh in 2013.

In an opinion for the textile companies, Prof. Dr. Gerrit Manssen, a constitutional law expert at the University of Regensburg, concludes that the EEG surcharge is an unlawful special levy (Sonderabgabe). He compares the EEG surcharge with the so-called “Kohlepfennig”, a surcharge on the electricity price levied until 1995. In 1994 the Federal Constitutional Court (BVerfG) declared this levy, which intended to make hard coal mining in Germany competitive, unconstitutional. The electricity consumers did not have a special responsibility to support the use of hard coal for the generation of electricity, BVerfG held.

In view of the importance of the EEG surcharge as the main tool for financing renewable energy in Germany, the cases are likely to go through all court instances up to BVerfG. Should BVerfG apply the 1994 ruling to the EEG surcharge, another financing scheme would have to be found. This is the intention of the textile companies, who argue that the high energy costs in Germany unfairly affect the business of small and middle-sized companies in Germany. Indeed, theses companies mostly do not benefit from the limitation of the EEG surcharge for energy-intensive companies pursuant to special equalisation scheme  for electricity-intensive enterprises and rail operators (Sections 40 to 44 EEG) and the exemption from grid charges according to Section 19 para. 2 sent. 2 Electricity Grid Charges Ordinance (StromNEV).

While a ruling by BVerfG cannot be expected in the short-term, the lawsuits made headlines as rising energy costs, especially for private households and enterprises not benefitting from exemptions have become a major topic of concern.

Energy Commissionar Günther Oettinger proposed a cap on the EEG surcharge in an interview with the tabloid Bild. When the EEG surcharge for 2013 was announced in October 2012, this had to be discussed, he demanded.

Source: Federal Association of the Textile and Fashion Industry

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