23.03.2020

CORONA crisis: Does necessity know no law? Effects of the crisis on environmental energy law limitation periods

Undertakings with intensive electricity costs in Germany are currently suffering from the effects of the corona crisis on two fronts.

Background

1. Special equalisation scheme

On the one hand, as is the case with many other companies, there is currently a sharp decline in sales. On the other hand, the deadline for the submission of limitation applications for the year 2021 is approaching. All documents relevant in order to meet the deadline must be received by the Federal Office for Economic Affairs and Export Control (BAFA) by the end of 30 June 2020. Otherwise there will be no limitation of the EEG surcharge next year. We had already provided information concerning the difficulties in connection with the application deadline and possible solutions in our blog. The Tagesspiegel also featured an article about this topic.

BAFA has now reacted and intends to show forbearance in justified exceptional cases. On the website of the authority it says: “If a complete application, in particular the submission of the documents relevant in order to meet the deadline "auditor's certificate" and "certification certificate", cannot be submitted properly by 30 June 2020 due to the effects of the Corona pandemic, the BAFA will consider these circumstances to be "force majeure" and show forbearance."

The intended approach of the authority should come as a relief to many of the companies affected. However, caution is also required. Since BAFA makes it very clear, that forbearance will only be shown if the failure to meet the deadline is due to the effects of the corona pandemic. This must be proven by the applicants.

Furthermore, the applicants must make up for the missed deadline without delay. The authority also makes a comment regarding this: "The companies affected are obliged to file the proper application without delay and to inform BAFA at the time of application about the circumstances why the effects of the corona pandemic did not allow an application in due time."

The companies should therefore continue to make every effort to submit their applications for limitation by the given deadline. Only if this is not possible under any circumstances due to the current crisis should BAFA show forbearance.

The step of BAFA is a step in the right direction. But an amendment to the current legislation would still be desirable here. Only the amendment of the German Renewable Energy Sources Act (Erneuerbare-Energien-Gesetz, EEG) would provide the companies - especially in the light of the restrictive case law of the Federal Administrative Court on the substantive exclusion deadline for the special equalisation scheme - the urgently needed legal certainty in such turbulent times.

 

 

2. Emissions trading

The German Emissions Trading Authority (DEHSt) at the Federal Environment Agency announced on their website that they will provide for relief if deadlines cannot be met due to the spread of the coronavirus and the measures taken to contain it. If it can be proven that deadlines cannot be met in individual cases as a result of the current exceptional situation, DEHSt will probably take this into account in the further implementation of the European Emissions Trading Scheme or electricity price compensation. The requirements should correspond to those of BAFA.

What remains to be noted is that, notwithstanding the exceptional circumstances, the application must be handled with the utmost care and that the respect of deadlines is a top priority.
 

Author quotes

Dr Gernot-Rüdiger Engel: "The administrative practice announced by BAFA is certainly encouraging from a company perspective. However, a legal regulation would of course provide considerably more legal certainty - i.e. a postponement of the substantive exclusion deadline in the EEG 2017. Otherwise, there is a not inconsiderable residual risk for companies".

Ekkehard Hübel: "Numerous undertakings with intensive electricity costs in Germany may have breathed a sigh of relief when BAFA announced to show forbearance in individual cases. It is important that companies do not develop a false sense of security now. Timely submission of applications should continue to be the primary objective in order to avoid legal disadvantages".

Author
Dr Gernot-Rüdiger Engel

Dr Gernot-Rüdiger Engel
Partner
Hamburg
gernot.engel@luther-lawfirm.com
+49 40 18067 16639

Ekkehard Hübel

Ekkehard Hübel
Senior Associate
Hamburg
ekkehard.huebel@luther-lawfirm.com
+49 40 18067 21848