According to SPIEGEL (in German), the German government has sued the EU Commission over their decision to treat the German feed-in tariff as “State aid”, with the consequence of requiring approval by the EU Commission for all German legislation in this area. Thanks to this Tweet by Energiewende Germany for the link.
I applaud this move. How Germany legislates on renewable energy is none of the business of the EU Commission. They have been engaged in an illegal power grab that is incompatible with basic democratic values and the German Constitution.
I hope the German government wins this case, like they won the PreussenElektra case on the same question in 2001.
But for the very least, even if the Court says that there are some elements to the present feed-in tariff that make it qualify as “State aid”, the consequence of that should be to abolish those elements, not to continue taking the orders of the EU Commission elected by nobody in Germany on this point.
Also, even if a feed-in tariff was “State aid”, Article 3 Paragraph 3 of the Renewable Energy Directive 2009/28 already says that Member States may implement “support schemes” for renewable energy, which includes feed-in tariffs under the definition of the term in Article 2 k).
Since this Directive already allows feed-in tariffs unconditionally, there is no room for the EU Commission to attach any conditions to that permission. For example, if the Commission thinks that it is a great idea to restrict feed-in tariffs to a system where the tariffs are determined by auctions, they are free to introduce legislation changing Directive 2009/28. If they find a supporting majority in Parliament and in the Council for this useless and harmful idea, then the support schemes for renewable energy in the EU will reflect their opinion.
But they obviously don’t have the power to unilaterally change the Directive without any legislation procedure. Their position is incompatible with EU law as well as with the German Constitution.
What interest exactly is the EU Commission’s position supposed to protect?
They are correct in their assessment that support schemes for renewable energy come at a cost to competition. Selling electricity from coal power plants in Poland is more difficult with a feed-in tariff system in place in Germany.
But that interest (coal power plants from Poland) is not worthy of any protection whatsoever. The EU has made multiple policy decisions to phase out fossil fuel and to support renewable energy. Abusing general competition law to try to help coal power plants is in clear contradiction to this basic policy.
To sum this up: The Commission’s position is incompatible with basic values of democracy, incompatible with the German Constitution, and incompatible with Directive 2009/28. And they take this extreme position to help coal stay longer in business, which is incompatible with basic EU policy decisions.
I really hope the German government wins this case.