The German transmission system operators have started to claim levies under the German Renewable Energy Act ("EEG levy", EEG-Umlage) from companies that did not see themselves obliged to pay such levy due to allegedly privileged capacity lease models. Companies concerned may face substantial additional costs for past electricity supplies and considerably higher energy costs in coming years.
Numerous industrial electricity consumers have secured their electricity supplies i.a. by means of proportional contractual usage rights to power plants (so-called "capacity lease models" - Scheibenpacht-Modelle). In a number of cases this was obviously also driven by the desire to establish self-supply models benefitting from certain privileges regarding the obligation to pay the EEG levy (which is generally to be paid per kWh of electricity consumed with a view to support the German energy shift towards renewable energies). The companies concerned did either not pay the EEG levy at all or only paid it at a reduced rate, thus saving costs which could easily run into millions of Euros.
Following increased concerns on whether capacity lease models actually fulfilled the requirements of privileged self-supply, the German legislator clarified in 2017 that only the operators of actual physical power plants could benefit from the self-supply privilege, but not the holders of a mere proportional contractual usage right to a power plant. It was thus clear that the EEG levy would have to be paid for electricity supplies (at least) under some of the previously common capacity lease models.
Against this background, substantial claims for past electricity supplies could have accrued against those operators of power plants (as the electricity supply companies of the industrial electricity consumers) who had assumed to be maintaining privileged capacity lease models and therefore did not pay the EEG levy (while relevant costs can often be passed on from the operators to the relevant electricity consumers supplied on the basis of contractual agreements). However, in order to relieve the burden on affected companies, the German legislator enacted a so-called "amnesty rule" (Amnestie-Regelung) in the German Renewable Energy Act. Under such rule, provided that certain preconditions are met, electricity supply companies can assert a right of retention against claims for the EEG levy regarding past electricity supplies. In case of existing and unmodified supply concepts, the right of retention may also continue to apply regarding future electricity supplies.
In order to be able to invoke such right of retention, the operators of power plants had to provide the German transmission system operators with detailed information on maintained capacity lease models by the end of 2017 at the latest. Approximately 300 of such notifications have allegedly been received by the transmission system operators. This affects not only well-known German Dax companies but also medium-sized and smaller industrial companies. All cases have been or will be examined by the transmission system operators with regard to the specific design of the respective capacity lease model and with regard to the preconditions of the amnesty rule. It is now clear that the transmission system operators start to assert claims against individual market participants. The companies concerned are thus threatened with substantial claims for past electricity supplies and, at the same time, considerably higher energy costs in coming years. The transmission system operators are urged by the Federal Network Agency to scrutinize the constellations in question and are subsequently obliged by regulatory reasons to assert corresponding claims. Due to the substantial economic consequences and not least due to the complexity of the matter, lengthy legal disputes are to be expected.
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