Clearingstelle EEG (EEG Clearing Agency) has issued a vote concerning the calculation of solar feed-in tariffs for electricity generated in two solar plants located on neighbouring plots of land. The agency held that the two plants did not have to be considered as one plant in the sense of Section 19 para. 1 Renewable Energy Sources Act 2009 (EEG 2009), so that each plant was eligible for its own (higher) tariff.
Feed-in tariffs paid under the EEG fall the higher the installed capacity (installierte Leistung) or the rated average annual capacity (Bemessungsleistung) is. Usually every plants receives its own feed-in tariff. However the EEG 2009 (and also the currently applicable EEG 2012) stipulated in Section 19 EEG that
“Several installations shall be classified as one installation, notwithstanding ownership, and solely for the purpose of determining the tariff to be paid for the latest generator commissioned where
1. they are located on the same plot of land or are otherwise in direct spatial proximity,
2. they generate electricity from the same kind of renewable energy source,
3. the electricity generated in them is paid for in accordance with the provisions of this Act depending on the capacity of the installation, and
4. they were commissioned within a period of twelve consecutive calendar months.
In the case at hand, two solar power plants were erected by two different companies, one on the residential property of claimant and one on a neighbouring warehouse belonging to the agricultural property of claimant. The buildings are legally located on two separate plots of land that are recorded under two different numbers in the land register. Both plants started operations in 2009.
Originally the residential property and the warehouse were located on one plot of land. When claimant contected defendant and asked for a separate 30 kW connection of the warehouse on which the second solar power plant was to be installed, defendant told claimant that according to his technical terms for connection, the plot of land had to be divided as only one so-called household connection (Hausanschluss) could be made for each plot of land. Claimant subsequently divided the land and had the change recorded in the land register. He then claimed feed-in tariffs for each solar power plant individually.
EEG Clearing Agency ruled in his favour, although plants are considered as one according to Section 19 para. 1 no. 1 EEG 2009 when they are “in direct spatial proximity”. In line with a prior recommendation on the interpretation of Section 19 para. 1 no. 1 EEG, the agency considered Section 19 para. 1 no. 1 EEG 2009 not applicable, arguing that the plants were erected by different companies, were located on separate buildings and the division of the land did not occur to circumvent Section 19 EEG 2009, but on request of defendant who had made the division a prerequisite for the grid connection of the solar power plant on the warehouse. Claimant was not obliged to question the legality of the technical terms for grid connection of defendant, EEG Clearing Agency ruled.
Since April 2012 Section 19 EEG contains a new paragraph 1a, which stipulates that
“Notwithstanding paragraph 1 sentence 1, several installations in the sense of Section 32 para. 1 nos. 2 and 3 are classified as one installation, notwithstanding ownership, and solely for the purpose of determining the tariff to be paid for the latest generator commissioned where
1. they are located in the same municipality
2. within a distance of up to 2 kilometers as the crow flies, measured from the outer edge of the respective plant, and commissioned within a period of twenty-four consecutive calendar months.”
Source: Clearingstelle EEG
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