OLG Hamm Dismisses EEG Surcharge Case But Grants Leave to Appeal

In a recent ruling, the Higher Regional Court of Hamm upheld a ruling by the previous instance, dismissing a case brought by the textile company Textilveredlung Drechsel, Selb, against its electricity supplier regarding the surcharge for renewable energy (EEG surcharge). The court, however, granted leave to appeal to the Federal Court of Justice (Bundesgerichtshof). Plaintiff announced to appeal.

This case and similar cases by other textile companies, who are backed by their trade association Gesamtverband texil + mode (t+m), show the growing dissatisfaction with the EEG surcharge, which has considerably risen over the past years amounting to 5,277 ct/kWh in 2013. A further rise for 2014 seems very likely. 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).

Plaintiff had alleged unconstitutionality of the EEG surcharge, arguing it was an unlawful special levy (Sonderabgabe) that increased energy costs to the detriment of small and middle-sized (textile) companies. These companies mostly do not benefit from the EEG limitation for energy-intensive companies pursuant to the special equalisation scheme  for electricity-intensive enterprises and rail operators (Sections 40 to 44 EEG) (nor do they usually benefit from the exemption from grid charges according to Section 19 para. 2 sent. 2 Electricity Grid Charges Ordinance (StromNEV)).

OLG  Hamm denied to stay the lawsuit, as plaintiff had suggested, and submit the case to the Federal Constitutional Court, who is the only court that has the power to declare a law unconstitutional under the German constitution. It did not consider the EEG surcharge a special levy as the EEG surcharge was not paid to the state, the court said. According the EEG mechanism for the EEG surcharge as applicable since 2010, the TSOs can claim the difference between the sale of renewable energy at the energy exchange and the fixed feed-in tariffs paid from the distribution grid operators pursuant to Section 37 para. 2 EEG and the Equalisation Scheme Ordinance (ARegV). The distribution grid operators in turn charge the customers. Though there is no legal obligation to pass on the costs, this happens on a contractual basis, as the terms and provisions provide for a reimbursement by the final customers. State institutions are therefore indeed not involved in marketing renewable energy and collecting the EEG surcharge. The whole system is however induced by the fact that the EEG and the ARegV oblige the TSOs to reimburse downstream grid operators for their EEG feed-in tariff payments and to market renewable energy at the energy exchange. In turn the EEG allows them to reclaim losses via the EEG surcharge, which are then of course passed on down the line to the energy consumers.

OLG Hamm granted leave to appeal to the Federal Court of Justice, saying the constitutionality of the EEG surcharge was a matter “that was likely to affect a multitude of case” so there was an “abstract interest of the general public in a uniform development and application of the law and legal certainty”. In view of a total amount of EEG-related expenses of about EUR 20 billion, this is certainly right. According to Frankfurter Allgemeine Zeitung, Textilveredlung Drechsel has a very “concrete interest” in the matter, as it expects to pay EUR 184,695 in EEG surcharges this year.

Textilveredlung Drechsel already announced to appeal to the Federal Court of Justice. The trade association t+m said the company was hoping for a fast decision in order to take the case further to the Federal Constitutional Court.

Source: OLG Hamm, ref. no. I-19 U 180/12; Gesamtverband texil + mode; Frankfurter Allgemeine Zeitung, 20 June 2013, page 15

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