The Energy Regulation and Markets Review - Stikeman Elliott

Germany
yet commissioned) may be subject to a degression scheme. Accordingly, the guaranteed
feed-in tariffs will decrease year by year until the facility is eventually established and
commissioned. From a constitutional law point of view, it can be presumed that the
legislator is, in principle, not allowed to alter or repeal these positions retroactively after
the renewable energy facility has been commissioned.
Under the EEG, operators of renewable energy facilities may opt for selling the
electricity produced directly on the market instead of claiming the fixed feed-in tariffs.
This includes the option of a market premium scheme that compensates for potential
deviations between the fixed feed-in tariff level and actual revenues received by selling the
electricity on the (spot) market.
In the context of renewable energies, it is of particular relevance that the events
in Fukushima in Japan led to the German nuclear moratorium in March 2011. By
consequence, all German nuclear power plants had to undergo a safety evaluation.
Following these events, the German legislator decided to completely abandon the use
of nuclear energy by closing some of the oldest German nuclear power plants and by
adopting a gradual phase-out until 2022. Consequently, since then the administrative
bodies and the legislator have focused their decisions on an accelerated extension of
renewable energy sources. This regards particularly the promotion of electricity from
offshore wind power. In this regard, not only feed-in tariffs for offshore wind have been
increased, but also the Offshore Installations Ordinance has been amended in order to
simplify and accelerate approval procedures for offshore wind farm installations.
ii Energy efficiency and conservation
With regard to energy efficiency and conservation, a variety of technologies has been
promoted for the last years. This includes combined heat and power (‘CHP’) and
combined cooling, heating and power (‘CCHP’) generation. These systems are based
on the principle of simultaneous generation of multiple forms of useful energy within
a single system. The legal framework is provided by the Combined Heat and Power
Act (‘the KWKG’). The provisions of the KWKG function in a similar manner as the
aforementioned EEG rules. Thus, CHP or CCHP operators obtain a feed-in tariff, the
extent of which depends on the total capacity of cogeneration. This financial contribution
will effectively be paid by end consumers through higher network tariffs.
There have also been new statutory standards that aim at improving energy
efficiency in buildings. In particular, the Energy Saving Ordinance stipulates that between
2012 and 2020 standards for new buildings are to be gradually increased in order to
enhance energy efficiency. Furthermore, a recent amendment of German procurement
law aims at supporting energy-efficiency targets. Accordingly, the performance in relation
to energy efficiency has to be taken into account when awarding public contracts.
iii Technological developments
Recent events have led to technical enhancements particularly in the field of renewable
energies. The technologies necessary for the implementation of offshore wind farms
as well as offshore connection lines have to be developed under very difficult market
conditions and strict regulatory constraints. As a consequence, the undertakings involved
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