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Motion for a temporary injunction moved by an electricity producer falling under the Renewable Energy Sources Act denied

Press Release No. 15/2009 of 19 February 2009

Order of 18 February 2009
1 BvR 3076/08

Operators of plants for electricity generation from renewable energy sources have a statutory claim against the competent grid operator to the purchase of the electricity generated and for a feed-in tariff. The amount of the feed-in tariff for electricity from biomass is graduated according to performance classes in such a way that smaller plants receive a higher feed-in tariff per kilowatt hour than larger plants. On 1 January 2009, the Renewable Energy Sources Act (Erneuerbare-Energien- Gesetz) from the year 2004 (EEG 2004) was amended, with this promotion system being maintained. Pursuant to § 19.1 EEG 2009, for the purposes of calculating the minimum tariff guaranteed by law, several plants shall be deemed as a single (large-scale) plant if: (1) they are located on the same premises or in direct proximity to each other; (2) they generate electricity from renewable energy sources of the same kind; (3) the tariff paid for the electricity generated in them is calculated according to the performance of the plant; and (4) they have been put into operation within twelve consecutive calendar months. The legislative history of the Act argues that this regulation merely constitutes a clarification of the legal situation applicable so far.

A constitutional complaint has been lodged by inter alia the operator of a bioenergy park and the project company that had been founded for the construction of the bioenergy park. At the same time, they moved to temporarily suspend § 19.1 EEG 2009 by means of a temporary injunction.

The bioenergy plant consists of 40 biogas plants, which were put into operation between November 2006 and December 2007. The complainants argue that due to the challenged legal regulation, the 40 plants of the bioenergy park are for the first time deemed as a single large-scale plant. They put forward that in view of the resulting loss in fees, the bioenergy park can no longer be operated in a cost effective manner, and that the plant operator will have to file an insolvency petition very soon.

By its order of 18 February 2009, the First Senate of the Federal Constitutional Court denied the motion for a temporary injunction. The decision was passed by five votes to three. The parties will be notified separately of the reasoning of the decision.