Federal Constitutional Court - Press office -

Press release no. 15/2009 of 19 February 2009

Order of 18 February 2009 –  –

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


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.


This press release is also available in the original german version.