Das Recht der Energiewende als Transformationskonzept: Beschleunigung um jeden Preis oder alles nur eine Frage der Zeit?

Abstract

The Law of Energy Reform as a Concept of Transformation: Speeding up at any Cost or is it just a Matter of Time?

The German Federal Administration has committed itself to rather challenging goals with respect to the Energy Reform (“Energiewende”). These goals stretch until the year 2050, or to more than eight further parliamentary terms. In the year 2050, energy supply is supposed to be practically free from greenhouse gas emissions. In light of the the nuclear power phase-out, the imminent end of fossil fuel, and the risks involved through climate change, Germany’s energy law emphasizes constant and repeated reform. Constitutional law requires lawmakers and public authorities to take into account that legal positions acquired under a certain regime may entitle to defy applicable but infringing changes. However, the German Federal Constitutional Court has yet to rule on a case in which it gives priority to the demands of those who have to face losses to their earlier entitlements in the course of reform. The judges seem to place considerable value on the needs for flexibility.

One of the crucial elements of Germany’s Energy Reform is the Renewable Energy Act (Gesetz über den Vorrang erneuerbarer Energien, EEG). In the paper, it serves as a paradigm example of the need of constant reform, as it has been amended 18 times since 2000. In August 2014, the current EEG came into force, once again bringing about major changes to the system. It serves different and partially conflicting purposes, such as security of power supply and cost efficiency. In order to achieve these goals, the act comprises state aid for a mix of technologies including wind energy, both on-shore and off-shore, photovoltaics, biomass, and others. The act relies on a legally binding promise to compensate operators of such installations by a specified feed-in tariff for the duration of 20 years. Currently, there are more than 5000 different tariffs to observe, particularly depending on the year of the installation of the facility, the technology used and its power generation capacity. In sum, the Renewable Energy Act has become a rather complex centerpiece of the efforts to reach ambitious targets as to the percentage of renewable energy in the field of electricity generation.