BGH: EEG Surcharge Not Unconstitutional

The Federal Court of Justice (BGH) confirmed a ruling by the Higher Regional Court of Hamm (OLG Hamm), dismissing a case brought by the textile company Textilveredlung Drechsel, Selb, against its electricity supplier regarding the surcharge for renewable energy (EEG surcharge).

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.

In line with OLG Hamm, BGH did not consider the EEG surcharge a special levy (Sonderabgabe) for which strict rules have to be observed to comply with the articles on the constitutional financial system pursuant to the German Constitution (Grundgesetz). BGH argued that the surcharge was not collected by the state (which, however, prescribed the EEG surcharge system in detail), but by the electricity suppliers. It therefore considered the surcharge to be a statutory price stipulation (“gesetzliche Preisregelung”), for which the rules developed by the courts for special levies were not applicable, not even mutatis mutandis. Parliament also did not exceed its competences when choosing to regulate the EEG surcharge in the form of a statutory price stipulation, BGH held. Furthermore it dismissed a breach of constitutional rights of the transmission system operators, electricity suppliers or final customers.

The trade association Gesamtverband texil + mode (t+m), which has been supporting plaintiff all along, continues to consider the EEG surcharge unconstitutional. The ruling could now be challenged with a constitutional complaint, t + m commented.

Source: BGH, ref. no. VIII ZR 169/13; t+m

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