Commission Decision (EU) 2015/1585 of 25 November 2014 on the aid scheme SA.33995 (2013/C) (ex 2013/NN) (implemented by Germany for the support of renewable electricity and of energy-intensive users) (notified under document C(2014) 8786) (Text with EEA relevance)

• Published date: 25 September 2015
• Subject Matter: aiuti degli Stati,ayudas concedidas por los Estados,aides accordées par les États
• Official Gazette Publication: Gazzetta ufficiale dell'Unione europea, L 250, 25 settembre 2015,Diario Oficial de la Unión Europea, L 250, 25 de septiembre de 2015,Journal officiel de l'Union européenne, L 250, 25 septembre 2015

25.9.2015 EN Official Journal of the European Union L 250/122

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COMMISSION DECISION (EU) 2015/1585

of 25 November 2014

on the aid scheme SA.33995 (2013/C) (ex 2013/NN) (implemented by Germany for the support of renewable electricity and of energy-intensive users)

(notified under document C(2014) 8786)

(Only the English text is authentic)

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof,

Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,

Having called on interested parties to submit their comments pursuant to the provisions cited above (1), and having regard to their comments,

Whereas:

1. PROCEDURE

(1) Through a complaint received in December 2011, the Commission was informed that Germany had implemented State aid for the support of renewable electricity and for energy-intensive users (‘EIU’) by way of a cap on the surcharge financing the support of renewable electricity (EEG-Umlage or ‘EEG-surcharge’).

(2) By letter dated 18 December 2013, the Commission informed Germany that it had decided to initiate the procedure laid down in Article 108(2) of the Treaty in respect of that aid (‘Opening Decision’).

(3) The Opening Decision was published in the Official Journal of the European Union (2). The Commission invited interested parties to submit their comments on the aid.

(4) The Commission forwarded comments received from interested parties to Germany, which was given the opportunity to react; its comments were received by letters dated 20 January and 14 November 2014.

(5) By letter dated 22 September 2014, Germany waived its right under Article 342 of the Treaty in conjunction with Article 3 of Regulation (EEC) No 1/1958 (3) to have this Decision adopted in German and agreed that this Decision be adopted in English.

2. DETAILED DESCRIPTION OF THE AID

2.1. The EEG-Act 2012

(6) The EEG-Act 2012 (Erneuerbare-Energien-Gesetz) was adopted on 28 July 2011 and entered into force on 1 January 2012 (4). It has been substantially altered by the EEG-Act 2014 (5). The Commission approved the new aid scheme resulting from that substantial alteration on 23 July 2014 (6).

(7) On the first level of the system established by the EEG-Act 2012, network operators (in most cases the Distribution System Operators, ‘DSOs’) are obliged to purchase electricity produced within their network area from renewable energy sources (‘RES electricity’) and from mine gas (‘RES electricity’ and electricity produced from mine gas are referred to together as ‘EEG electricity’). The purchase prices are fixed by law (‘feed-in tariffs’). Instead of requesting payment of the feed-in tariffs, producers of RES electricity and electricity from mining gas also have the possibility to sell their electricity directly on the market (‘direct marketing’). When they do so, they are entitled to obtain a market premium from the network operator. The amount of that market premium is also fixed by law.

(8) On the second level, network operators have to immediately transfer the EEG electricity to their respective Transmission System Operators (‘TSOs’), of which there are four in Germany, which in turn are under the obligation to compensate the network operators for the entire cost resulting from the feed-in tariffs and the market premiums.

(9) The EEG-Act 2012 also establishes an equalisation mechanism whereby the financial burden resulting from the purchase obligation is spread between four TSOs so that ultimately every TSO covers the costs of a quantity of electricity that corresponds to the average share of EEG electricity compared to the total electricity delivered to the final consumers in each area served by the individual TSO in the previous calendar year (§ 36 EEG-Act 2012). This is the third level.

(10) TSOs are obliged to sell the EEG electricity on the spot market. They can do so alone or together. If the price obtained on the spot market is not sufficient to cover the financial burden resulting from their payment obligations towards the network operators, TSOs are entitled by law to ask electricity suppliers to pay a share of this burden proportionate to the respective quantity of electricity delivered by the electricity suppliers to their final consumers. The share must be determined in such a way that each electricity supplier bears the same costs for each kilowatt-hour of electricity delivered by it to a final consumer. Monthly advance payments must be made for payment of this surcharge. The EEG-Act 2012 explicitly designates this charge that the TSO recovers from electricity suppliers as constituting the EEG-surcharge (see § 37(2) of the EEG-Act 2012). The four TSOs are obliged to indicate all payments they have received on a joint EEG account and to publish that account (§ 7 AusglMechV (7)). This is the fourth level.

(11) The four TSOs together have to determine the EEG surcharge for the year n + 1 in October (§ 3 Absatz 2 AusglMechV). The methodology they have to use and the elements on which they have to base their calculation are set out in the Ausgleichsmechanismusverordnung (AusglMechV) and in the Ausgleichsmechanismus-Ausführungsverordnung (AusglMechAV) (8). Those legal texts do not leave the TSO any discretion. In particular, § 3 AusglMechV states the following: ‘§ 3 EEG-Surcharge (1) The transmission system operators calculate the EEG-Surcharge according to § 37 paragraph 2 of the Renewable Energy Act [i.e. the EEG-Act 2012] in a transparent manner as: 1. the difference between the projected revenues referred to in paragraph 3, points 1 and 3 for the following calendar year and the forecast expenditure referred to in paragraph 4 for the following calendar year, and 2. the difference between the actual income referred to in paragraph 3 and the actual expenditure referred to in paragraph 4 at the time of calculation. (2) The EEG-surcharge for the following calendar year has to be published before 15 October of each calendar year on the website of the transmission system operator in aggregated form and must be indicated in cent per kilowatt-hour delivered to consumers; § 43 paragraph 3 of the Renewable Energy Act shall apply accordingly. (3) Revenues are: 1. income from the day-ahead and intraday marketing pursuant to § 2, 2. income from the EEG-surcharge, 2a. income from payments according to § 35 paragraph 2 of the Renewable Energy Sources Act provided that the balancing exercise according to § 35 paragraph 3 of the Renewable Energy Act presents a positive balance for the transmission system operator, 3. income from interests referred to in paragraph 5, 4. income from the settlement of balancing energy for the EEG balance group, and 5. income under § 35 paragraph 4 or § 38 of the Renewable Energy Act and paragraph 6. (4) Expenditures are: 1. feed-in tariffs and compensation payments according to § 16 or § 35, paragraph 1 of the Renewable Energy Act, 1a. payments of premiums pursuant to §§ 33g or 33i or § 35 paragraph 1a of the Renewable Energy Act, 1b. payments according to § 35 paragraph 1b of the Renewable Energy Act, 2. repayments under paragraph 6, 3. payments for interest referred to in paragraph 5, 4. costs necessary for the settlement of intraday transactions, 5. costs necessary for the settlement of balancing energy for the EEG balance group, 6. costs necessary for the preparation of day-ahead and intraday forecasts, 7. costs necessary for the establishment and operation of an installation register, provided that the transmission system operator are required to operate such a register on the basis of a decree adopted pursuant to § 64e Number 2 of the Renewable Energy Act. (5) Differences between revenue and expenditure are subject to an interest. The interest rate for one calendar month amounts to 0,3 percentage points above the monthly average of the euro interbank offered rate set for the procurement of one-month money of the first addresses in the countries participating in the European Monetary Union (EURIBOR) for a period of one month. (6) If there are entitlements as a result of discrepancies between the monthly payments according to § 37 paragraph 2 sentence 3 of the Renewable Energy Act and the final settlement pursuant to § 48 paragraph 2 of the Renewable Energy Act, they have to be compensated until 30 September of the year following the feeding-in. (7) When forecasting the revenues and expenditures referred to in paragraph 1, point 1 to calculate the EEG-surcharge, transmission system operators are allowed to take into account a liquidity reserve. It may not exceed 10 % of the difference referred to in paragraph 1, point 1.’.

(12) Hence, the four TSOs determine jointly the EEG-surcharge on the basis of the forecasted financial needs for the payment of feed-in tariffs and premiums, the forecasted revenues from the sale of the EEG electricity on the spot market and the forecasted consumption of electricity. In addition, a series of revenues and costs linked to the management of the EEG-surcharge have to be taken into account for its calculation. For 2012, the EEG-surcharge amounted to 3,592 ct/kWh. In 2013, it was 5,277 ct/kWh. In 2014, the surcharge amounts to 6,240 ct/kWh.

(13) It furthermore follows from the provisions described in

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