The German Federal Court of Justice has published a decision from June 25 on an attempt to resist the German feed-in tariff system.
The plaintiff in that case paid the feed-in tariff surcharges for April 2012 (about 10,000 Euro) and claims them back with this lawsuit. They argue that the Law on Priority for Renewable Energy is unconstitutional.
The reason for that: In their view, the surcharges are a “special tax” (Sonderabgabe), which means a tax raised for a specific purpose. Such a tax is problematic under the German Constitution, because it calls in question Parliament’s right to decide about how to spend all tax income.
The Federal Court of Justice did not share these concerns. They say that this is not a tax in the first place. A tax requires that the funds raised by the surcharges become part of the state budget. They don’t. All these funds never touch the state budget, they all flow only between private persons.
That of course is also true when discussing if the system is a form of “State aid”, as the EU Commission claims. For exactly the same reasons explained in this opinion, that is not the case as well.
Some people call the new requirement for renewable energy installations over 10 kW to pay 40% of the surcharges (after a transition period) a “solar tax”. That is not correct either. Again, these funds are never in the state budget.