Cabinet decision to special equalization scheme in the context of EEG reform in 2014
, the Bundestag on 8 May 2014 in first reading the draft law amending the Renewable Energy Sources Act (EEG) beraten.1 Already on May 7, 2014, the Cabinet had the draft law on special equalization scheme ("cabinet design"), thus availing the proposal to reform EEG 2014 vervollständigt.2 This decision follows intense debates and the guidelines adopted by the European Commission on 9 April 2014 government environmental protection and energy subsidies from 2014 to 2020 ("WEEE ") 3 ahead. The recent recommendations of the relevant committees of the Federal Council of May 12, 2014 make, however, clear that the reform schedule could still be slowed down by the resistance of the countries.
, the so-called special equalization scheme limits of energy-intensive manufacturing industries to be paid EEG apportionment. With the cabinet draft now published the specifications of WEEE is implemented in German law; part of the cabinet design goes beyond these requirements.
companies from sectors that are classified by the WEEE as electricity costs and trade-intensive and are mentioned in the lists 1 and 2 of Annex 4 to the EEG 2014, may request a limitation of the EEG provide levy if their power consumption in last financial year at the respective delivery point amounted to more than a gigawatt hours (GWh).
companies referred to in Schedule 1 of Appendix 4 sectors must demonstrate further that the cost of electricity a share of gross value added in the amount of at least 16% - from claim year 2015 (for the 2016 limit) at least 17% - have; among companies in industries of Schedule 2 the cost of electricity intensity must be generally at least 20%. The legislator thus raises the threshold compared to the EEG 2012 and also goes beyond the requirements of WEEE addition. The WEEE provide an additional test of the power Cost intensity on individual company level only for industries from the list 2. In determining the cost of electricity intensity is turned off after the new regulation on the arithmetic mean of the gross value added in the last three completed financial years of the company.
1 BT-Drs. 18/1304. The bill is available here.
2 The draft law on special equalization scheme is available here.
3 See our Client Alert "EEG Cabinet decision" of April 2014.
EEG Reform 2014: special equalization scheme
EEG reform 2014: Special compensation scheme
Finally future need for recourse to the limitation companies
operate a certified energy or environmental management system. This
requirement was previously only for companies with a current consumption of
at least 10 GWh. As evidenced by the bill, the federal government will
also examine the extent to which additional requirements particular to the
implementation of the European Energy Efficiency Directive are meaningful. Affected
businesses should therefore with further requirements for energy efficiency in
expecting the next few years.
scope of the limitation
of the special equalization scheme privileged company pay for the
first gigawatt-hour of electricity as before the EEG apportionment in full. For the
current in excess of 1 gigawatt hour, the EEG apportionment will, in principle
limited to 15% of the regular levy. In addition, the total load for is
companies with an electricity intensity of less than 20% to 4%
("cap") and for companies with an electricity intensity of at least 20%
to 0.5% ("super-cap") of the gross value of the respective company
however, the federal government has a new one in the cabinet design
The minimum contribution for all: imported base amount to be paid in any case
further kilowatt hour above the first gigawatt hour is at least
0.1 cents / kWh.
transition and hardship provisions
The cabinet design incorporates a transitional arrangement for companies for
already a final, binding decision limiting the calendar year 2014,
have been preserved. As far as the new provisions of the EEG in 2014 for these companies
lead in subsequent years to an increase in the EEG surcharge, the increase is
for a transitional period up to 2019 each to a maximum of a doubling
limited to the charges from the previous year.
Moreover, should a hardship the economic consequences for companies
to address, although they have received a limitation for 2014, according to the
EEG in 2014 but are no longer eligible to apply in the future. For such
companies will, if their electricity costs in the last completed
fiscal year at least 14% was, on request from the year 2015, the EEGUmlage
for the current component over a gigawatt hour to 20% of normal
limits EEG apportionment. The hardship clause should include the following three constellations
companies from industries that either List 1 or in Schedule 2 of Appendix 4
are listed in Appendix 4 to the EEG 2014
companies from sectors at list 1, the cost of electricity intensity while
14% but not 16 % and 17% of gross value added is, and
companies from sectors at list 2, the cost of electricity intensity while
14% but not 20% of gross value added is.
EEG Reform 2014: special equalization scheme
, the hardship provision is not limited in time, so obviously should apply over the 2019 addition. This would so far permanent obtain an at least partially limiting privileged companies. Whether that given the - unclear on this point - will be as durable requirements of WEEE remains to be seen. In each case, the companies involved will have so fully meet the other requirements, especially the requirements for the operation of an energy or environmental management system.
The bill includes some new features of the procedural rules. Requests to limit the EEG apportionment for 2015, may exceptionally be made until 30 September 2014. According to a recently published information sheet for Antragstellung4 the Federal Office of Economics and Export Control (BAFA) has opened its portal application on 12 May 2014. BAFA calls on industry to prepare the application in the portal as soon as possible, taking into account the contents of the cabinet design. Because of the extended application deadline BAFA is expected to send the limitation notices for 2015 until the beginning of 2015.
future, it will be sufficient to meet the deadline, when companies submit the auditors certificate and the certification certificate upon application; the other documents may be submitted. As of claim year 2015 Applications must be submitted in electronic form, unless the BAFA provides for exceptions from the requirement for electronic applications in the Federal Gazette. In addition, the BAFA will in future be obliged to redeem limitation notices, if the statutory requirements at issue did not exist. Trust-protection, the companies affected can not rely. Finally, the BAFA get special powers to check that the conditions for the limitation also subsequently can (Eviction, inquiry and inspection rights).
relation to the test procedures of the European Commission
The EEG amendment, including the planned revision of the special equalization scheme has no direct impact on the ongoing formal investigation by the European Commission, which, in particular, against the special equalization scheme in the version of the EEG 2012 richtet.5 In this process, the federal government continues to represent the view that the compensation scheme is not subject to European State Aid Law.
Though open the WEEE the Member States the option granted in the past, limitations of the European Commission in the context of a gradual adjustment plan submitted for approval. However, it is not expected that the federal government on a - constitutionally questionable - retroactive adjustment of the Special
4 The instruction sheet on how to apply is available here.
5 See our Client Alert "EEG - EU Commission opens formal investigation procedure" from December 2013 .
EEG Reform 2014: special equalization scheme
enters an equalization scheme without need. Therefore, the company concerned will have to wait for the end of the state aid investigation procedure with regard to the limits for the years 2013 and 2014 before they receive final legal certainty. The risk of a (partial) recovery consists of those companies which do not meet the new criteria of WEEE, ie mainly companies from industries that are not listed in Annex 4 to the EEG 2014 or indeed listed in Schedule 2 of Appendix 4 are reach, but not the required current cost intensity of 20%.
schedule and view
the schedule of the federal government provides to adopt the amended EEG in the first half of 2014. The Federal Council is to advise on May 23, 2014, the bill to reform EEG 2014; it follows that for the end of June 2014 planned second and third reading in the Bundestag. The new EEG due to come into force on 1 August 2014. The four relevant committees of the Bundesrat, however, have now formulated almost 100 points of criticism of the bill and the Federal Council recommended that this position be formed nehmen.6 Among other things, against the burden of own consumption with the EEG surcharge is resistance in the Bundesrat. Gets the Federal Council Conciliation Committee - which is conceivable in view of the critical votes in the Bundesrat - could this schedule still be in danger.
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6 BR-Drs. 157/1/14, The recommendations are available here.
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