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Surcharge Industry Rebate Law Proposal Would Voluntarily Adopt Illegal Guidelines

Originally published on Lenz Blog.

The parties of the German government have introduced a proposal for surcharge industry rebates on May 20. I would like to highlight and briefly discuss two points.

The introduction to this proposal has this to say about the relation to the EU Commission guidelines:

Ungeachtet des Umstandes, dass die Bundesregierung das EEG und auch die besondere Ausgleichsregelung nicht als Beihile ansieht, werden diese Leitlinien im Interesse der Rechtssicherheit für die Unternehmen vorsorglich angewandt. In my translation: While the Federal Government does not see the Law on Priority of Renewable Energy or the special industry rebates as state aid, the EU Commission guidelines are applied anyway, so as to achieve legal security for the companies.

In other words, the German government is following the orders of the EU Commission even when they don’t think the Commission has any competence in the matter.

That of course results in those illegal guidelines actually working as if they were legal, and the EU Commission power grab being successful. A sad state of affairs.

As Jhering noted in the 19th Century, if you don’t fight for your rights, you might as well not have them in the first place. So right for the 65th anniversary of the German Constitution, we have the power to legislate about renewable energy transferred to the EU Commission.

If there was an actual amendment to the German Constitution transferring the legislative powers of the German Parliament to the EU Commission, such an amendment would be illegal under Article 79 Paragraph 3.

This also means that there will probably no decision of the European Court of Justice on this issue. That would require someone with a spine being responsible at the Federal Government.

As to the substance of the proposal, I don’t have much to say. It seems to try to preserve the status quo. However, I note that in the list of industries who get these rebates is, right at the top (drum roll):

Steinkohlenbergbau (coal mining) in List 1

There are two lists, and list 1 is the more favorable. Industry on that List 1 can get the rebate already if their electricity bills are 16 percent of their costs, while those on List 2 need 20 percent.

The general idea with these rebates is that industry might pack up their factories and move somewhere else without them. Can you spot the problem with including mining?

Yes. No one can pack up their mine and take it to China. So why again does coal need to get these rebates? Wasn’t the idea to transit away from coal? And why do they get an even sweeter deal (List 1) than oil and natural gas, which are on List 2?

To get an answer about that, one would probably need to ask the EU Commission, which has received zero votes from anyone in Germany, since they were the ones who decided to give coal, oil, and natural gas these rebates, not the German Parliament.


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is a professor of German and European Law at Aoyama Gakuin University in Tokyo, blogging since 2003 at Lenz Blog. A free PDF file of his global warming science fiction novel "Great News" is available here.


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