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| Energy law

52 GW solar lid finally lifted in the EEG

With Art. 8 of the Bundestagsdrucksache 19/20 148 the Bundestag on Thursday, 20. In June 2020, the government decided to remove the long-awaited solar lid. With the simple deletion of § 49 para. 5 and para. 6 EEG 2017, production for solar plants will now also continue with an installed power of less than 750 kWp after reaching an installed total power of 52 GW.. The decision was made without the votes of FDP and AFD. For example, the decision on the draft standardisation of energy saving legislation for buildings implemented the much too long delayed amendment of the EEG and the commitment of the 2030 Climate Protection Programme of September 2019. ( BT-Drs. 19/20 148 of 17. 06. 2020)
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| Energy law

BGH about the right to amend price adjustment clauses in district heating contracts

On 23rd of April, the BGH heard a review of the ruling of the OLG Frankfurt am Main of 21st March 2019. The main hearing will take place on 3rd March 2019. OLG Frankfurt had affirmed that district heating utilities had infringed the UWG because they had informed their customers in a customer’s letter of a change in the price adjustment clauses. In the opinion of OLG Frankfurt a. M. was not allowed to change unilaterally the price adjustment clauses on the basis of AVBFernwärmeV and the customer’s letter was therefore misleading. The BGH annulled this ruling of the OLG Frankfurt and ruled that there was no infringement of the UWG. The district heating provider did not mislead its customers by giving false facts, but merely expressed its legal view, which was admissible. However, the BGH did not clarify the actual question of whether district heating utilities are entitled to unilaterally change their price adjustment clauses by means of public announcement.
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| Energy law

Amendments to the Wind Energy-to-Sea Act: Digitisation of planning and approval procedures

On 29 June, the Commission adopted a proposal for a Directive on the planning safeguards law, which came into force in May 2020, introduced the tool of online consultation, initially limited to the duration of the restrictions imposed by the COVID-19 pandemic. In connection with the amendments to the WindSeeG adopted by the Federal Government today, the formal consultation of the authorities to be involved has been replaced by the publication of the relevant planning documents on the Internet (§ 6 para. 10, § 12 para. 2a, para. 4 sentences 2 and 3, § 47 para. 6 WindSeeG). A further step towards bringing administrative procedures into the digital age. And unlike the Planning Security Act, the tool of this online consultation is no longer tied to the effects of the COVID-19 pandemic.
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| Energy law

Common objective market within the meaning of the GWB for district heating and contracting

The Higher Regional Court of Rostock (OLG Rostock) ruled in a judgment of 5 July 1994. March 2019 on the nullity of a district heating supply contract on the basis of § 1 GWB i. V. m. § 134 BGB, which has been living between the heat supplier and the customer for several years. The Court of First Instance is of the opinion that, although supplying large customers with district heating or through heat contracting, it is a common product market. However, since in the specific case there was no impediment to the market, a nullity of the heat supply contract was not to be assumed. In addition, a ten-year contract term in view of the possible maturity agreement according to § 32 para. 1 AVBFernwärmeV does not contradict § 1 GWB, even in combination with a minimum purchase quantity. (OLG Rostock, Dec.. of. 5.3.2020 - Case No. : 16 U 1/18)
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| Energy law

BGH specifies the scope of the transfer entitlement of the new concessionaire

With its decision of 07. 04. 2020, the BGH has clarified the scope of the transfer entitlement of the new concessionaire vis-à-vis the previous operator of the general supply network pursuant to § 46 para. 2 sentence 2 of the EnWG. According to this, high-voltage and high-pressure pipelines in the municipal area are also part of the local distribution network if the system cannot be disregarded without the new concessionaire no longer being able to fulfill its supply tasks as the former system operator did, and the pipeline system has a more than insignificant role in local supply. The right of transfer is not limited to installations to which customers are directly connected. (BGH, UrtDec. of. 7. April 2020 - Case No.: EnZR 75/18)
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| Energy law

BGH specifies requirements for civic energy companies in the EEG

By decision of 11. 02. 2020 the BGH specifies the requirements for a citizen energy company according to § 3 No. 15 EEG, which participates in an invitation to tender, in the sense that the majority of voting rights for district-based members must also be accompanied by a corresponding actual possibility of exerting influence on the company and participating in decisions of the general meeting. However, the requirements for a public energy company are not fulfilled if the social contract does not provide for majority decisions or if the social contract of a limited partnership withdraws fundamental transactions from the decision of the shareholders and assigns them exclusively to a company of the complementary company. ( BGH, Dec. from 11. 02. 2020 - Az. : EnVR 101/18)
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