Federal Court of Justice, 17 November 2010, Ref.: VIII ZR 277/09
§ Section 11 EEG 2004 regulates the remuneration rates for electricity from solar radiation energy. § Section 11 (2) EEG 2004 regulates in particular the remuneration rates for systems that are installed exclusively on or on a building or a noise barrier. According to Section 11 (2) sentence 2 EEG 2004, these minimum rates are increased by a further 5.0 cents per kilowatt hour if the system is not installed on the roof or as the roof of the building and if it forms an integral part of the building.
Pursuant to Section 11 (3) 2004, however, if the system is not installed on or in a building that has been erected primarily for purposes other than the generation of electricity from solar radiation energy, the grid operator is only obliged to pay remuneration if the system was commissioned before 1 January 2015 within the scope of a development plan (Section 30 of the German Building Code) or on an area for which a procedure pursuant to Section 38 sentence 1 of the German Building Code has been carried out.
For the purposes of differentiation, Section 11 (2) sentence 3 EEG 2004 defines buildings as independently usable, covered structures that can be entered by people and are suitable or intended to serve to protect people, animals or property.
The vagueness of this definition means that legal disputes can occasionally arise between grid operators and owners of photovoltaic systems as to whether the photovoltaic system is actually attached to a building within the meaning of this definition and whether the electricity is therefore to be remunerated by the grid operator.
The Federal Court of Justice had to deal with this issue in the above-mentioned judgement.
FactsThe plaintiff (plant operator) ran a horticultural business on whose premises there were two shade halls for the cultivation of light-sensitive plants. These shade halls, which were open at the sides, originally consisted of wooden supporting structures and were covered with a coarse-meshed net, which allowed precipitation to pass through so that the rainwater could be used to irrigate the plants underneath. Later, the plaintiff replaced the wooden structures, which he considered to be dilapidated, with two console-shaped supporting structures made of steel. He attached photovoltaic modules to the steel girders located in the lean-to, under which a coarse-meshed underlay used as shading fabric was attached, by means of a substructure attached to the steel girders, each of which was one or two centimetres apart and allowed the rainwater required for irrigation to pass through.
After the plaintiff had registered the system with the defendant as the grid operator, the latter refused to pay the feed-in tariff. The plaintiff then sued for remuneration and was successful in the lower courts. The defendant contested this with its appeal, which was allowed by the Court of Appeal.
Federal Court of JusticeThe Federal Court of Justice followed the plaintiff's view. For the definition of a building and the covering required in this respect, it was decisive whether there was a protective closure at the top, taking into account the function of the structure, which could still be referred to as a roof in its fixed, permanent connection with the other components. The lack of lateral protection only plays a subordinate role in this respect. Furthermore, § 11 para. 2 sentence 1 EEG does not require that the building on which the system is installed already existed as a (finished) building before the installation of the system. Rather, it is sufficient that an installation intended as a roof covering, with its design as a roof, completes the previously existing structure to form a building.
Source: Federal Court of Justice
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.