In the dispute over the skimming of excess revenues as part of the electricity price cap, 22 affected green electricity producers failed at the Federal Constitutional Court. Their constitutional complaints were unsuccessful, as the court in Karlsruhe decided.
When electricity prices in Germany threatened to explode as a result of Russia’s war of aggression against Ukraine, the federal government responded at the end of 2022 with an electricity price brake. The aim was to relieve the burden on households and companies in view of the energy crisis and high electricity prices. Part of the electricity was offered at a fixed, cheaper price:
- Households and smaller companies received 80 percent of their previous electricity consumption at a guaranteed gross price of 40 cents per kilowatt hour.
- For industrial customers the limit was 13 cents for 70 percent of previous consumption.
The electricity price brake, which has now expired, was co-financed from so-called surplus revenues – for example from green electricity producers who had benefited from the high prices. 22 operators of green electricity systems therefore took action before the Federal Constitutional Court against the partial skimming of their surplus revenues.
Excess revenue refers to profits that were significantly higher than the companies’ expected profits at the time. Because the prices of all types of electricity generation are based on the power plants with the highest costs.
Because gas-fired power plants, as the most expensive power plants on the electricity market, often set the price for all others, other types of generation also benefited from the high prices, while their expenses remained roughly the same. For example, renewable energy or brown coal plants were able to sell their electricity at prices that were well above their production costs. Some of the excess revenue was skimmed off from December 1, 2022 to June 30, 2023.
Dealing with the energy crisis is the responsibility of the state, say the operators
The 22 plaintiff operators of wind power, photovoltaic and biomass systems had argued that overcoming the energy crisis was the state’s responsibility and should therefore be financed from tax revenue. The complainants argued that the electricity costs were not so high because of renewable energies, but were primarily caused by the gas power plants. However, these of all people were excluded from the levy.
The federal government emphasized in court that it had responded to an exceptional situation with the electricity price cap. By skimming, the operators should make their contribution to calming the electricity market, said Philipp Steinberg, Ministerial Director at the Ministry of Economic Affairs. By limiting the time, the federal government ensured that the intervention was kept as low as possible.
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