BVerfG Rejects Constitutional Complaint Against Grandfathering Rule for Big Solar Parks

In a decision of 27 September 2012 the Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) did not admit a constitutional complaint against the recently introduced grandfathering rule for solar parks above 10 MW. The case had been brought before the court by two plaintiffs that were involved in planning and building two large solar power plants with capacities of more than 10 MW.

The EEG amendment of 17 August 2012, which aimed at reigning in solar growth, provided that feed-in tariffs can only be claimed for a maximum capacity of 10 MW (cf. Section 20a para. 5 sent. 2 EEG). The amendment mainly entered into force retroactively on 1 April 2012. A grandfathering rule in Section 66 para. 18a sent. 2 EEG accorded solar power plants on conversion areas in the sense of Section 32 para. 1 no. 3 c (cc) the former legal position, i.e. the right to claim feed-in tariffs for the total amount of electricity generated in solar power plants with a capacity higher than 10 MW, if the plants were commissioned after 30 June 2012 but before 1 October 2012.

Plaintiffs brought a constitutional complaint against Section 66 para. 18a sent. 2 EEG, alleging an infringement of their constitutional rights. They argued the grace period was too short. Their plants would not be ready for commissioning within that period. Hence their projects would be rendered unprofitable. Plaintiffs also asked for a preliminary injunction.

However, the complaint was not even admitted for decision. Pursuant to Section 93a para. 1 BVerfGG (Federal Constitutional Court Act) BVerfG has to formally accept a case brought before it for decision. The court has to do so if the case is of fundamental importance for the constitution or necessary to ensure the right to bring a constitutional complaint (Section 93a para. 2 BVerfGG). The particular requirements for a constitutional complaint are set out in Section 93 para. 1, 4a GG (Basic Code, i.e. the German Constitution) in connection with Section 90 BVerfGG, the most important of it being obviously the allegation of an infringement of one or more constitutional rights.

However, it does not suffice to merely claim an infringement of a constitutional right. According to Section 23 para. 1 sent. 2 and Section 92 BVerfGG and case law relating thereto, plaintiff has to name the constitutional positions which allegedly have been infringed and give sufficient evidence of an infringement of his individual rights protected under the constitution. In particular in cases like the one at hand in which plaintiffs alleged an infringement of their rights by a law, they have to back up their individual infringement by sufficiently substantiating their claim, BVerfG confirmed.

Plaintiffs failed to do so in every regard, the court held. Firstly, they neither described the conditions applicable for the planned solar power projects under the previous law, nor compared them with the consequences under the new law, thus failing to bring before the court the necessary legal aspects. Secondly, they did not back up their claim of an infringement of their constitutional rights to a sufficient extent, the court said. The facts put forward did not provide enough information on the status and the progress of the solar power projects, leaving it also unclear when and in what amount plaintiffs invested into the projects and entered into contractual agreements. Hence, BVerfG could not examine whether investments respectively commitments were protected by legitimate interests (Vertrauensschutz) during the parliamentary process that lead to the EEG amendment.

Besides, the complaints lacked evidence on the lack of profitability of the projects under the new Section 66 para. 18a sent. 2 EEG the BVerfG said, pointing out that even if the provisions on feed-in tariffs pursuant to Section 16 et seqq. EEG did not apply, Section 8 para. 1 EEG nevertheless mandated that renewable power had to be purchased by the transmission system operators (at what price, however, remains unclear). Lastly, plaintiffs did not provide reasons for an infringement of their individual rights in view of the fact that there were neither zoning plans for the areas on which the solar power plants should be erected nor building permits, BVerfG held.

Source: Federal Constitutional Court, decision of 27 September 2012, ref. no. BvR 1809/12

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