Companies that make use of the special equalisation scheme provided for in the German Renewable Energy Sources Act (Erneuerbare-Energien-Gesetz, EEG) must comply with the strictest of all administrative deadlines when submitting their applications - the substantive exclu-sion deadline. If the applicant company does not comply with this, there is generally no limitation of the EEG levy in the following year. In times of the coronavirus, it could become difficult for many companies to submit the limitation application in time. The Federal Ministry of Economics and the Federal Office for Economic Affairs and Export Con-trol (BAFA) should find a solution as quickly as possible in the interest of companies with high electricity costs.
In order to obtain a limitation of the EEG levy, companies must submit an application to BAFA by 30 June of each year at the latest or, in the case of newly founded companies, by 30 September at the latest. These deadlines are in each case the aforementioned substantive exclusion deadlines. These deadlines must therefore be strictly adhered to and no extension is possible. If the deadline cannot be met, there will be no limitation of the EEG levy next year - regardless of the reasons for missing the deadline.
In view of the coronavirus, meeting the deadline is likely to become a problem for many companies. If the virus continues to spread in Germany - which the World Health Organization currently
estimates is to be feared - far-reaching protective measures can also soon be expected in this country.
Neighbouring Italy shows the restrictions this can bring with it. Public life has largely come to a standstill there. Educational institutions, shops and restaurants have been closed, many people work from home, have stopped working or are absent due to illness.
In such a case, meeting the application deadline could become almost impossible. This is because the certificate from an auditor and proof of the operation of an energy management system must be submitted together with the limitation application. But how are these requirements to be met if employees and auditors are no longer reliably available?
A solution to the problem could be if a possible failure to meet the deadline by the coronavirus would constitute a case of force majeure.
It is recognised in the case law of the German Federal Administrative Court that under certain exceptional circumstances public authorities may not invoke the expiry of a statutory exclusion deadline. This concerns in particular cases of force majeure.
Force majeure is defined as an event that could not be averted even by exercising the greatest care reasonably expected of the person concerned under the circumstances of the specific case, taking into account the situation, education and experience.
There are good reasons why these standards apply to the outbreak of the coronavirus. This is because state-initiated protective measures against the spread of an epidemic and the associated restrictions on working life cannot be averted by the applicant companies or the supporting auditors. Even with the greatest possible care, no auditor's certificate can be obtained if no auditor is capable of acting due to protective measures.
The Federal Administrative Court recognises that in cases of force majeure the acting authority is obliged to grant leniency to the applicant and to accept an application that is actually late under the statutory provisions. It would therefore be possible to prevent the imminent failure to meet deadlines - for example by granting leniency in advance. In addition, it is not the first time that BAFA would act in this way. Remember the application procedure in 2014.
If the relevant stakeholders decided to extend the substantive exclusion deadline once in view of the exceptional circumstances, this would provide significantly more legal certainty to the undertakings concerned.
There are rumours that such considerations already exist. An extension until 30 September 2020 for existing companies or until 30 November 2020 for newly founded companies would certainly be sensible in order to avert the difficulties of the companies and at the same time to enable a decision to be taken by the BAFA by the end of the year. If the Federal Ministry for Economic Affairs does not make a binding decision on this in good time, there is a risk of considerable uncertainty due to the - from day to day more likely - unavoidable failure to meet the deadline.
It would also be conceivable for the legislator to amend the EEG accordingly. Surely this would be an exceptional measure. But what is normal these days? Should the legislator decide to act, it would be advisable to simultaneously adjust other environmental energy law deadlines (e.g. 31 May for electricity quantities forwarded to third parties).
Dr Gernot-Rüdiger Engel:
We find ourselves in an absolutely exceptional situation. Now the Federal Ministry for Economic Affairs, BAFA, transmission grid operators and the IDW should act in concert to find a practicable solution for the companies. In view of the spread of coronavirus and the associated government measures, many affected companies will not be able to meet the application deadline. The absence of an EEG levy cap for 2021 is likely to have consequences threatening the existence of companies, possibly at a time when the economy is recovering from the corona crisis.
The necessary precautions should be taken as soon as possible to ensure that undertakings which are unable to meet the application deadline because of coronavirus do not suffer loss of rights and do not face serious economic difficulties.
Dr Gernot-Rüdiger Engel
+49 40 18067 16639
+49 40 18067 21848