EEG surcharges: Administrative Court of Frankfurt am Main must suspend proceedings

In a legal action brought by companies of the Georgsmarienhütte Group (GMH) against limitation notices under the German Renewable Energy Sources Act 2012 [Erneuerbare-Energien-Gesetz, EEG 2012], the European Court of Justice (ECJ) ruled today on a procedural legal issue raised by the Administrative Court [Verwaltungsgericht, VG] of Frankfurt am Main. The GMH companies are being legally represented in these court proceedings by Oppenhoff & Partner. Lead partner is Prof. Dr. Heiko Höfler of the law firm’s Hamburg office.

The Administrative Court must decide on avoidance actions brought by four GMH companies against limitation notices relating to the EEG surcharge. The fundamental question arising in this litigation is whether EEG surcharge limitations that have been granted constitute prohibited state aid pursuant to European law. The Administrative Court requested a preliminary ruling from the ECJ on this point. The ECJ denied this request; the submission was deemed impermissible.

With the judgement pronounced today (case C-135/16), the Court of Justice ruled that the Administrative Court must suspend the litigation pending in Frankfurt on grounds of an “obligation of loyal collaboration” until the ECJ has ruled on the disputed issue of possible state aid in violation of state aid law in other proceedings pending before the ECJ. (margin No. 24)

The ECJ also clarifies that the GMH companies were entitled to take legal action against the partial withdrawal notices before the German Administrative Court. In the opinion of the Court of Justice, in cases such as the present, “… the possibility to question the legality of the national actions taken to implement the instrument of Union law before the competent domestic state courts remains unaffected.” (margin No. 22).

In his conclusions, the Advocate General of the ECJ had deemed such legal actions to be impermissible.

The GMH companies had not directly filed any complaints against the EU Commission’s decision establishing a case of state aid with the EU courts, as the Federal Republic of Germany had already taken legal action against this. The Administrative Court of Frankfurt must now await the decision in these proceedings by the Federal Republic of Germany still pending before the ECJ.

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