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Members of the coalition are celebrating. In lengthy negotiations, a breakthrough was achieved in amending the Renewable Energy Sources Act (EEG), the SPD applauded in a press release. With the legislation, which will be debated in the economic committee this week and then presented by the Federal Council, “bureaucratic obstacles” will be removed and the EU’s climate targets will be effectively supported, the Union rejoices.
There is no reason to be happy. And this is not only because the results of the marathon negotiations fall far short of the demands and expectations of climate protectors and the energy industry.
The SPD and CDU negotiators have discreetly misused the amendment to initiate a controversial amnesty for large energy-intensive corporations such as Evonik, the former Bayer Covestro subsidiary, or Daimler. It should protect corporations from late payments in the high double-digit billions. Even the main Federal Ministry of the Economy is critical of the amnesty. A corresponding internal note states that it is noted that the regulation “carries constitutional and state aid risks.” Furthermore, it is not clear whether the passage in question is “EU approved”.
Ingenious Consultants, Windy Constructions
The explosive point can be found well hidden on page 159 of the current bill. It says there in paragraph 104 that companies that have refused to pay billions of euros in EEG surcharge in recent years with reference to the so-called disk leasing model no longer have to fear prosecution for it. Rather, they should be given the right to negotiate an agreement with the responsible transmission system operators that exempts them from refunds if they pay the surcharge starting in September next year.
The bill must be paid by normal electricity consumers, medium-sized companies and traders. Because the costs of generating renewable energy are passed on to all customers. This is what the legislator intended when the EEG was introduced a good 20 years ago. Only a few companies that have always required large amounts of electricity and mostly produce it in their own power plants on company premises for their own consumption were excluded from this. Some large chemical companies, steel manufacturers or automobile manufacturers belonged to the elite circle. And at first that didn’t matter.
But with the rapidly increasing costs of EEG, the model became increasingly attractive. Ingenious consultants and law firms designed it using windy constructions so that companies could lease capacities or so-called power plant disks from normal electricity providers or other service providers (disk leasing). At least on paper, they became self-sufficient and did not pay an EEG surcharge for the amount of electricity they purchased.
This approach has been a thorn in the side of the legislature for years. Especially since it expanded more and more. Even hospitals and retail chains built their own disc rental models.
The industry lobby panicked
Therefore, there were always minor changes in the law. Many small and medium-sized businesses gave in and abolished their window leasing models. But until now, no federal government has seriously dared to approach large corporations. For good reason: they would have to pay refunds for a period of up to 20 years. The amounts would run into the billions and cause even major industry players like Evonik to run into financial difficulties, as the Chemical Industry Association (VCI) openly argues.
But the transmission system operators, who are in charge of offsetting the EEG surcharge, did not want to be satisfied with the pending situation and commissioned a law firm two years ago to examine the cases and, if necessary, resolve them. in the tribunals. The prosecution of the cases was clear from the attorneys’ point of view: based on the outcome of their investigation, several dozen companies could have mistakenly saved high double-digit billions in EEG surcharges in recent years. To clarify this, they first brought several minor cases before the prosecution. Most of the time, the courts ruled against the companies and ordered EEG refunds.
Panic grew among the big players in the industry. Above all, the Chemical Industry Association increased its lobbying pressure on the CDU and the SPD and provided Federal Minister of the Economy Peter Altmaier (CDU), through members of the Economic Committee and a Berlin law firm, drafts of changes to the law and amnesty regulations that were ready to print. While the ministry’s level of work was able to fend off such an approach earlier in the year, the controversial regulation now appears to overcome parliamentary hurdles.
The consumer is responsible for the damage.
The damage it would do is immense. For consumers, because they have to pay the price of dubious window rental models through their electricity bills. For hundreds of small businesses that have discontinued their EEG savings models in recent years due to changes in the law and appeals and in some cases have even paid their levies retrospectively and now see that their honesty has not paid off. Because of the rule of law, because a controversial legal issue is not fought in its place, that is, in ordinary courts. And even the companies that are now covered by the amnesty cannot really rejoice. Because they do not have legal security with the law. It is hard to imagine that this passage will not be legally challenged and that Brussels will simply bypass the controversial regulation.
