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The Lawfulness of the Support Scheme of the German Renewable Energy Act (EEG) from the Perspective of German Constitutional Law and European Law

Hans-Peter Schwintowski

This article shows that the German Renewable Energy Act (EEG 2014) does not comply with both German constitutional law and European law. From the perspective of constitutional law, the EEG support scheme is no price regulation, as assumed by the Federal Court of Justice of Germany (Bundesgerichtshof), but a (hidden) tax. Furthermore, it lacks an amortisation and marketability clause. From the perspective of European law, the EEG surcharge is a levy within the meaning of Articles 30 and 110 of the Treaty on the Functioning of the European Union which cannot be justified under the European Treaties. Furthermore, the EEG support scheme conflicts with the European Emissions Trading System, as their impacts impair each other. Thus, the EEG support scheme is neither necessary nor appropriate to achieve the European targets regarding climate protection, but disproportionate instead.

Prof Dr Hans-Peter Schwintowski, Humboldt University Berlin is managing director of the Institute for Energy and Competition Law in the Municipal Economy (Institut für Energie- und Wettbewerbsrecht in der kommunalen Wirtschaft, EWeRK). Translation of terms from German to English is provided by the author. For correspondence: >>.


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