Federal Constitutional Court - Press office -

Press release no. 26/2009 of 24 March 2009

Order of 18 February 2009 – 1 BvR 3076/08 –

Reasoning of the denial of the motion for a temporary injunction moved
by an electricity producer falling under the Renewable Energy Sources Act


On 18 February 2009, the First Senate of the Federal Constitutional
Court denied the motion, made in conjunction with a constitutional
complaint challenging a legal provision, which had been moved by the
operator of a bioenergy park and the project company that had been
founded for the construction of the bioenergy park, to temporarily
suspend § 19.1 of the Renewable Energy Sources Act (Erneuerbare-
Energien-Gesetz – EEG) 2009 by means of a temporary injunction. The
complainants had argued that – contrary to situation in the period of
validity of the EEG 2004 – the 40 technically independent plants of the
bioenergy park were deemed as a single large-scale plant from the entry
into force of the EEG 2009 on 1 January 2009 and that they therefore
received a lower tariff per kilowatt hour of electricity fed into the
public grid; they further argued that as a consequence of the
considerable decrease in income resulting from this, the plant operator
would have to file an insolvency petition very soon (see press release
no. 15/2009 of 19 February 2009).

In essence, the decision is based on the following considerations:

The motion for a temporary injunction must be denied because the
constitutional complaint is patently unfounded. It does not raise any
issues which could only be clarified in the main proceedings.

§ 19.1 EEG 2009 does not violate the complainants’ fundamental right to
property. It can be left open whether the claim to fees paid under the
EEG, which are intended to ensure to the plant operator an income for
electricity produced from renewable energy sources that is higher than
the market price, is protected by Article 14.1 of the Basic Law (
Grundgesetz – GG). Even if this assumption is made, a violation of a
fundamental right cannot be established. It already appears doubtful
whether the claim to fees existed in the period of validity of the EEG
2004 to the amount assumed by the complainants. Ultimately, the
interpretation of § 3.2 sentence 2 half-sentence 1 EEG 2004 that is
relevant to this is, however, not decisive. Even if the review of
constitutionality is based on the fact that the fees paid for the
electricity that is fed into the grid by the bioenergy park concerned
had to be single plant-related so far, and that taking this fact as a
starting point, § 19.1 EEG 2009 curtails a legal position of the
complainants acquired under the previous law, the regulation is
unobjectionable as a constitutionally permissible determination of the
content and the limits of property. It admittedly results in a
considerable reduction of the feed-in tariff which can be obtained by
the operation of the bioenergy park. However, this statutory reduction
of the claim to fees satisfies the requirements of the principle of
proportionality and those of the principle of protection of public
confidence, which must be taken into consideration in the guarantee area
of Article 14.1 GG.

§ 19.1 EEG 2009 serves the legitimate objective of avoiding an
unnecessarily heavy financial burden being placed, due to the division
of one or several large-scale biomass plants into a multitude of smaller
plants, on grid operators, electricity suppliers to end users, and
ultimately, on electricity customers, who, due to the compensation
mechanism set out in the EEG 2009, must bear what is known as the
difference costs. The regulation is also suitable and necessary for
pursuing this objective; it is also proportionate in the narrower sense.
The subsequent amendment of the provisions on feed-in tariffs could
prove unreasonable only if the complainants were able to trust in the
continued existence of the concept of "plant" as set out, in their
understanding, in § 3.2 EEG 2004.

This, however, is not the case. § 19.1 EEG 2009 satisfies the
requirements of the principle of the protection of public confidence. It
is true that the provision has retroactive effect to the extent that it
is also applied to biomass plants that were put into operation before 1
January 2009. This retroactive effect, however, is constitutionally
unobjectionable. For the complainants at any rate could at no point in
time trust in the continued existence of the regulation which in their
view had been set out in § 3.2 sentence 2 EEG 2004.

Even before the planning for the construction of the bioenergy park had
started, legal commentaries held the view concerning § 3.2 sentence 2
EEG 2004 that as regards the question of taking together various plants,
the decisive factor was the economic connection of the investment at the
chosen location. Apart from that, § 3.2 EEG 2004, according to the
legislative history of the Act, "also [served to] prevent the avoidance,
which would be contrary to the objective of the Act, of the payment
thresholds applicable to the tariff amounts by splitting up [the plants]
into smaller units". Also the Federal Government and the Bundesrat had
subsequently established that the deliberate splitting up of biogas
plants into several units for the sole purpose of achieving higher
tariffs contradicted the legislative objective of the EEG.

The complainants therefore had to expect that this legal practice would
be changed by the legislature at any rate in the future. Also § 12.3
sentence 1 EEG 2004, on which the complainants had relied, does not
establish an unrestricted claim on the part of the plant operators to
the status quo of tariff legislation being maintained, which would be
contrary under constitutional law to the closing of gaps in the law that
had been recognised subsequently.

The cautious action on the part of the legislature, which had been aware
of the existing legal uncertainties and the criticised practice of plant
splitting at any rate since August 2006, may appear incomprehensible.
For the constitutional assessment, this is just as irrelevant as the
question of whether it is sensible under considerations of legal and
environmental policy with a view to the objective of § 1.1 and 1.2 EEG
2009 to extend the regulation adopted now to existing plants.


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