Possible additional claims for section 17e EnWG claims of offshore wind farms

By order of 21 September 2020 (file no. 3 U 1099/20), the Nuremberg Higher Regional Court confirmed the judgment of the Bayreuth Regional Court of 19 March 2020 (file no. 1 HK O 28/19).

• Accordingly, the transmission system operator (TSO) may not deduct 0.4 cent/kWh from the (initial) value to be invested when calculating the amount of compensation under Article 17e EnWG.
• The calculation basis for the amount of compensation is the full amount to be invested in the first 8 years of operation according to § 50 (3) EEG 2014 regularly 19.4 ct/kWh.

The decision is likely to have an impact on virtually all existing offshore wind farms, because according to the transitional provision in section 118 (21) EnWG 2017, the provision in the wording on which the decision is based applies to all projects which either

• have received an unconditional grid connection commitment until 29 August 2012 in accordance with section 17(2a) EnWG 2017, or
• or a capacity allocation until 31 December 2016 in accordance with section 17d (3) sentence 1 EnWG 2012

(and thus probably for all turbines subject to the grid connection regime prior to the WindSeeG).

The following therefore applies to their claims under section 17e EnWG:

• For future claims, the settlement can be based on an initial value including the 0.4 ct/kWh i, i.e. 19.4 ct/kWh on a regular basis.
• In the case of claims that have already been invoiced, retroactive billing for all claims can be made retroactively until 1 January 2017. The settlement of claims from 2017 would have to be carried out regularly by 31 December 2020 in order to avoid a limitation period.
• Claims from the period prior to 1 January 2017 would generally be time-barred (subject to, for example, ongoing proceedings or waivers of the statute of limitations).